Thursday, May 17, 2007

ACLU & Democrats To Appeal To Supreme Court On Voter ID

The opponents of Indiana's Voter ID law prove themselves to be the hypocrites they are. They will appeal the 7th Circuit decision upholding the constitutionality of Indiana's Voter ID law, while they pretend the unprecedented disenfranchisement of Marion County voters in last week's municipal primary election never happened. Rick Hasen of the Election Law Blog reports on the decision of the ACLU of Indiana and the Indiana Democratic Party to file a petition for cert. Hasen writes:

Via email comes news that the ACLU-represented plaintiffs, and the Indiana Democratic Party, will be filing separate but complementary cert petitions in the litigation challenging 7th Circuit opinion in the Indiana photo ID law. I recently posted on the election law listserv some thoughts on why this case is certworthy. Here are my thoughts:

...I think there are a few reasons why the Supreme Court should grant cert in Crawford, should plaintiffs decide to petition for it:1. Error correction. Judge Posner's opinion is at best sloppy, and at worst pernicious, in its treatment of empirical evidence and how it bears on this controversy (even under a relatively low standard of review). Given Judge Posner's reputation, this opinion is likely to have ill effects far beyond the Seventh Circuit. Taking the case will also give the Court a chance to correct its own errors as to the proper balancing in voter id cases that it set forth in Purcell v. Gonzalez. (I take both of these arguments in great detail here so I won't rehash them now.) Though error correction is not a usual reason for the Court to take a case, voter id controversies are going to continue to attract great attention and controversy as they are passed by legislatures and decided by the courts. The Court can correct error and give guidance on the proper balancing in these cases.

2. Reexamination of the Burdick standard. Chris's excellent article shows that what the Court says Burdick sliding scale review does and what the Court actually does in these balancing cases are different. Chris urges lower courts to follow what the Supreme Court has done, and not what it says. This is a hard course for lower courts to take. To the extent the Court can shed light on how lower courts should apply the Burdick standard, especially in light of Bush v. Gore (I've argued (in "After the Storm: The Uses, Normative Implications, and Unintended Consequences of Voting Reform Research in Post-Bush v. Gore Equal Protection Challenges," in Rethinking the Vote (Oxford University Press, Ann Crigler, Marion Just, and Edward McCaffery eds., 2004)) that Bush v. Gore may have changed the Burdick standard), that would be helpful. Chris also sets forth a test in his article that raises the level of strict scrutiny based on a showing improper legislative motivation. That''s not a test I would advocate, but plaintiffs might ask the Court to consider it in this case. (I'd argue, contrary to Chris, that Burdick should be replaced with a test that calls for more rigorous scrutiny the empirical evidence, which goes back to my first point as to why this case should be taken.The evidence of voter fraud presented in Crawford, as I've argued, simply does not provide any support for a voter id law under anything more than a rational basis review.)Indeed, if the plaintiffs ask for cert. on grounds of clarifying/changing the Burdick test, they might suggest and grant and hold until the Lopez Torres and Washington Primary cases are decided next term.

3. Implied conflict in the circuits.There is not a direct conflict in the circuits between Crawford and other voter id cases, but there is at least an implicit tension on the poll tax issue. Judge Posner assumes in Crawford that the indigency exemption takes care of any poll tax issues. (Chris and I also disagree on the poll tax question, though Chris notes below that the Indiana procedure likely flunks any rational basis plus review.) Here's an excerpt from the latest version of my draft discussing Crawford (this version is not yet on ssrn, footnotes omitted):

In Indiana, contrast, poor voters are allowed to cast a provisional ballot without producing photo identification, if they later appear before an elections official to sign an indigency affidavit. It is unclear how much this alternative requirement would deter voting by indigents. Even putting aside the stigmatic effect of seeking a declaration of indigency,the indigent voter must cast a provisional ballot and then at a later time present to a circuit court clerk or ounty election board an affidavit affirming under penalty of perjury that the applicant is indigent and is unable to obtain an identification without the payment of a fee (or has a religious objection to being photographed). For example, an indigent voter in Gary Indiana who does not drive and cannot afford a car would have to travel by taxior private car (because there is no public transportation) from Gary to the County seat of Crown Point, at least 30 minutes away.

Indiana law provides for a way for indigents to vote without producing a photo identification. Though such an approach in theory should obviate a poll tax argument against voter identification requirements as accepted in the Georgia case, see supra note 143, it is not so clear upon closer inspection that the Indiana law removes the poll tax problem.

To take advantage of the indigency exception, a voter must cast a provisional ballot at the polling place and then show up at another time and place to fill out an affidavit of indigency. Tese affidavits are not available at the polling place; instead, the indigent person must make a separate trip to appear before a clerk or election board to sign an affidavit under penalty of perjury that one does not possess a photo identification and that indigency prevents getting one (or that there are religious reasons for not having one's picture taken).

This procedure seems to be a pretty onerous burden on the poor, especially those who have to travel back a second time to see an elections official. A less onerous requirement would allow the affidavit to be filled out at the polling place, ora single time with a voter's registration form.

There's also a conflict over how to balance any "feelings of disenfranchisement" with actual disenfranchisement. (Compare Crawford, picking up on this unfortunate language from Purcell, and the Missouri Supreme Court's treatment of the issue in Weinschenk v. State, 203 S.W. 3d 301 (Mo. 2006).)

There may be strategic reasons (voiced by Dan Tokaji and others) for plaintiffs not to bring this suit to the Supreme Court. But if the plaintiffs do petition for cert, I very much hope the Court will grant it.I'd add now that the case is also noteworthy because of the troubling partisan split among both the 7th Circuit panel and the vote on whether or not to take the case en banc.

I'm actually delighted that the plaintiffs are seeking cert. I hope the Supreme Court accepts cert, and I'm very confident there are at least five members of the Supreme Court who will support the concept of election integrity and uphold Indiana' Voter ID law. The real question is why the plaintiffs don't give a damn about the election integrity Marion County Clerk Beth White tossed out the window in last week's municipal election. I guess "actual disenfranchisement" isn't so important to these folks after all.


Wilson46201 said...

...and Terry Record (the drunk driving, Federalist Society lawyer) should be charged with a Class A Felony murder for the wanton death of a deaf grandfather? After all, death is death, isnt it? Record killed somebody and that's murder and he deserves the electric chair?

The Tuesday kerfuffle was a one-time, unintentional incident. It is not expected or desired to be repeating. It is not written into law as something to be emulated, copied, duplicated or reiterated. It was an accident. Yes, some folk couldnt vote but luckily no contests were thrown into doubt.

The Indiana VoterID law is a part of a national phenomenon undertaken in a number of states at the apparent behest of Karl Rove et al. Sadly, Indiana seems to have the most restrictive of any of those new Republican-initiated disenfranchisement devices. It should be stricken off the lawbooks and tossed into the garbage can of history along with the myriad previous undemocratic and racist tricks and frauds!

Anonymous said...

Wow. The apocolypse is upon us. I actually agree with Wilson.

The plaintiffs in this lawsuit cannot and should not bring the Primary crap into this lawsuit, and you know it, Gary. I know one of the attorneys, and he is appalled at the Primary screwup.

But it's not pertinent to the exacting standards of certiorari.

Posner's ignorant opinion was overly partisan and flawed. And, one of the most-relevant certiorari standards, is disagreement among the circuits. That certainly exists.

That being said, the incumbent Supremes are a huge question mark as far as voter rights is concerned. We'll just have to see.
Given their questionable abortion ruling recently, it's likely they'll accept the case, but the final ruling, well...I'm not holding my breath.

Anonymous said...

What's the beef?
Rep. Bill Crawford as the plaintiff in the lawsuit is a joke.
He is one of the biggest hypocrites in the black community to date.

He has not been disenfranchised from voting. His name on the lawsuit is for show. Bill Crawford has sold out his community more than once, and this is a safe controversy for him to attach his name for appearances.

He has no response to the 3100 plus legal voters in 5 precincts along with voters whose polls were opened late being denied their right to vote.

If The Democrats knew 2 weeks out that they needed 200 more inspectors, why didn't they hold news conferences alerting the public they needed help?
Elections are planned to be won or planned to be lost. This was one way the Democrats could insure their slate of handpicked candidates would win over their opponents. The new way to steal an election.

Democrats assume that missing the opportunity to vote last Tuesday is ok. How many of these same voters will be alive to vote in November?

The Patriot Act requires a person to show two pieces of identification when applying for a mortgage. . A person has to show identification to open a bank account, cash a check, buy a pack of cigarettes, purchase alcoholic beverages, open charge accounts, apply for professional licenses, etc.

Voter ID will eliminate the possibility of voter fraud, even if it is one person who votes illegally. It is clear the Democrat Party desires to leave that possibility open to illegal voters. The Party has yet to identify voters, who have actually been disenfranchised due to no voter ID,

Gary R. Welsh said...

The fact is there was a remedy for the disenfranchisement: a revote. If these plaintiffs really cared about voter disenfranchisement as they claim, they would have gone to court to demand a revote in at least the 5 precincts which never opened on election day. They didn't because it doesn't serve their partisan agenda. God forbid we draw attention to the complete incompetence of the very Democratic public officeholder who promised better elections. As I said, I hope the case is granted cert because I want SCOTUS to put an end to this nonsense and affirm that requiring a voter to demonstrate he/she is who he/she claims to be by displaying a simple form of ID required to carry out every day activities in this country is a reasonable and rational way to protect election integrity.

Anonymous said...

I'm not sure what has ruffled your feathers so badly in the past couple of weeks, but your constant harping on a couple of issues is about to cost you this reader, and more importantly some credibility.

You know darn well that the Voter ID lawsuit is not the proper place to complain about the Primary Day screw-ups. I'm a D and admit freely that the Primary Day stuff was terrible.

You are a lawyer. If you think that revoting is an option, why didn't you seek out a voter who couldn't vote on primary day and file suit. You have that ability, but you have done nothing of the sort. Don't sit on your blog throne and chastise other lawyers who have poured thousands of hours (much of it unpaid, BTW) into a case about a primary screw-up which they were not involved in... If you care about it, do something about it. If you don't care enough to sue about it, then don't pretend that you're better than others who haven't sued about it.

Wilson46201 said...

A revote in those 5 precincts (which have a grand total of less than 250 votes typically) would not affect the outcome in any elections. There are NO aggrieved candidates deprived of any likelihood of winning or losing. It would be an expensive sham to assuage the allegedly hurt feelings of a few extreme partisans. A charade at taxpayers expense. Lots of sound and fury, signifying nothing!

Anonymous said...

Bill Crawford went to the parole board, supporting the release of convicted cop killer Norman Radford, who was in fact released from prison after having killed Indianapolis Police Officer Ron Manley in 1975 during a robbery at the old Hooks, at 18th and Illinois. Radford received the death sentence, which was commuted to life. How this scum-bag got parole is beyond belief.

Thats all I need to know about that POS Bill Crawford.

Gary R. Welsh said...

It isn't about the outcome of the election, Wilson. It's about the constitutional right to vote. Can you for just once lay aside your partisan views?

And anon 7:17, do you think I make a dime off this blog? Give me a break. If any one of you working on that lawsuit had gone to Beth White and asked for a revote, she would have done it in a flash on her own initiative. Instead, you gave her a wink and a nod and said, it's okay, we understand it was your first election.

Wilson46201 said...

Could you please turn on your no-anonymous filter again? The drive-by character assault by that professional hater @ 7:20am has no place in a civilized discussion of elections. She is getting desperate again!

Anonymous said...

I'm all for voter ID. If you don't have yourself together enough to have an ID, then should you have a say in who is elected?

If I had it my way, you would have to have a college education or own land to vote.

The biggest problem with this country is democracy. Democracy always ends up failing because the ignorant dumbed down uninformed masses are allowed a say. And there say typically is to vote for more government handouts (socialism). I think voting privileges should be earned. And please don't call me racist.

Anonymous said...

OK, 8:09, I won't call you racist.

How about, charitably, we just call you under-informed?

Voter ID was and is a ruse. There was No unprosecuted voter fraud. Rokita searched high and low for it. The Voter ID law is rat hunting witih a cannon. Overkill to the max.

The lawsuit on that issue was probably flawed, and Bil Crawford as a plaintiff, well...I agree with other poster.s I actually know some disenfranchised voters who cannot get state photo ID. Can NOT--did you hear that? They are foreign-born, and lack the required "points" to get an ID.

I am one more Democrat who's sick about the primary mess. And Wilson, there was one race, I believe for council on the eastside, where the slated candidate lost by just a few votes, where a revote might make a difference.

Other than that, revotes won't make a difference. Election caselaw is pretty clear on that point. Not saying I agree with it, but facts are facts.

Wilson46201 said...

Pseudo-elitist calls for a college education as a criterion for voting is humorous when the anonymous nobody makes elementary mistakes in English grammar himself.

"And there say typically..." ??? Basic 8th grade education would teach a student that 'their' is the possessive, not 'there'.

Sorry, Mr. Ignoramus, no voting for you!

Gary R. Welsh said...

anon 8:18, you're bringing up that Russian family example again. I challenge you to have them contact my office and seek my assistance in getting a state ID. If they were able to present enough evidence to become naturalized citizens of this country, I can assure you that I will be able to assist them in obtaining a state ID card from the BMV. I won't charge them for my time. Just send them my way, and I will gladly take care of this grave miscarriage of justice you speak of.

Wilson46201 said...

Isn't it quite a stretch when an immigration law specialist attorney is needed just to get the particularized documentation needed to vote in Indiana?

Anonymous said...

AI, when you turn on the anonymous filter, please turn on the Wilson filter. Much appreciated.

Anonymous said...

If a person has a social security card they can get a state ID card.
It is clear the Democrats choose to leave open the chance for illegal voters to vote. Enough said!

I bet if Julia Carson's polling site had been late openning at 3:00 PM, Wilson would have had more to talk about than let it be.

Wilson46201 said...

The above anonymous nobody reveals its utter ignorance by the completely erroneous statement about a Social Security card being all that's needed to get legal State ID. That's just another feeble GOP partisan fabrication.

Interestingly, Steny Hoyer told our Congresslady Julia Carson that her vote in the House of Representatives was particularly needed on Tuesday, May 8th, so for the first time in her life, she had to vote absentee in person on Sunday downtown in Indianapolis. After all, work required her to be out-of-town Election Day!

Gary R. Welsh said...

Hey, Wilson, I'll let you in on a little secret. The naturalization certificate the government issues a person who becomes a naturalized citizen contains a photo of the naturalized citizen. Is that not a government-issued ID?

Wilson46201 said...

Indiana law requires an expiration date on that government issued document. Does the naturalization certificate have such an expiry date? If not, no dice!

Gary R. Welsh said...

If I have a naturalization certificate with my photo identification on it, I sure as hell call provide the BMV enough evidence to get a state-issued photo ID. I'm sick and tired of all the lies that the opponents of voter ID keep manufacturing to claim people are being disenfranchised. It's utter bullshit, and they know it.

Anonymous said...

Gary, what's been the matter with you lately?

I have to echo the previous comment, although I often disagree with you, you have always had a civilized, intelligent blog. Over the last two weeks, its become much closer to IndyU or "FrugalHoosiers.

You often call for officials to own up to mistakes. Beth White did that. She royally screwed up, but then owned up do it and will work to make sure it never happens agian.

VoterID, as you know isn't a law, it wasn't needed, and likely had an underhanded motive. That said, it also hasn't presented the rampant disenfranchisement that some feared. SCOTUS decision: 50-50.

Gary, go on vacation, take a break, do whatever, but when you come back, re-attach your head and bring back the intelligent blog I used to love.

Gary R. Welsh said...

Hey, anon 10:13, if you want to offer me sincere advice, then put your name to it. Otherwise, keep it to yourself.

Wilson46201 said...

The BMV is very spotty and hit-or-miss about documentation needed to get State ID. Personally, I had postponed getting my old expired ID renewed because of all the stated documentation required. I armed myself with a whole passel of documents. I was merely asked to produce my expired ID (sloppily issued in pre-9/11 days). The only lengthy discussion involved what hair color did we think it was appropriate to use for the record.

The BMV has a lengthy regulation online about the requisite documentation for State ID. Needless to say, it's rather intimidating to non-attorneys! It also seems to be optional and arbitrary for the clerks to use in real life...

Anonymous said...

Gary, there's much that I agree with you about, but the voter ID law is not one of them. Look, the issue isn't whether Democrats can and should file suit over every election injustice. I was sick about the problems on primary election day in Marion County, but lawsuits aren't necssarily the answer to every problem. My rejoinder would be to inquire why the Republican Party hasn't filed suit if it feels that the system went so badly awry.

Having voters identify themselves in some way is not the issue. What's wrong with our law is the restricted forms of IDs that are acceptable, which places burdens on the right to vote that aren't shared equally among all voters. As even Posner concedes, those burdens fall disproportionately on poor people. Why does the law require an indigent voter to make a second trip to the Clerk's office to sign an indigency affidavit, instead of having those available at the polls? It's because the goal of these laws, as recent disclosures make perfectly clear, is to discourage and thus limit voter turnout in ways that benefit Republicans.

Everyone in the community needs to step up to the plate and help to insure that what happened this month in the Marion County never happens again. But the May 8 fiasco was not about a deliberate attempt to depress turnout, it was a function of our outmoded way of administering elections, having way too many precincts, and the extreme difficulties associated with finding in less than 6 months over 900 persons who are essentially volunteering their time to work the long hours at the polls on election day.

There's got to be a better way to run our elections, and any solutions must be crafted on a bipartisan basis to have any chance of succeeding. But I fail to see any connection between that issue and the lawsuit over the photo ID law.

Gary R. Welsh said...

Again, if the Dems had simply asked White to conduct a revote in those precincts, it would have happened without the need for any lawsuits. She didn't even petition the court the day of the election to extend voting hours for polling places which opened late--as had been done in the past.

Anonymous said...

Gary, I asked the eastern European family if they'd like to go to any number of lawyers who indicated they'd handle the case for free. I think when they settle down, they might just do that. Thanks.

For what it's worth, their "Naturalization" papers are sloppy and contain no Photo ID. They showed them to me. Honestly, a good computer printer could've done a better job.

The youngest son, who's 19, is buying a car next week and will have to go to BMV to get a license. He's not as passive as the rest of his family. He has been to the Nora BMV branch three times to ask them what he has to bring for a state ID...he got four different answers. No kidding.

What he has: a lease, utility bills, a work photo ID, an Ivy Tech photo ID, his bank accounts, his US Citizenship Certificate given to him at the ceremony presided over by Judge Barker earlier this year, "transport papers" to this country dated 1999, and a hospital "receipt" that indicates he was born in 1988. Although the BMV's answers were inconsistent, one thing was certain--he didn't have enough "points". And he has more than any of the rest of the eight voting-age folks in his family, scattered over three apartments on the northwest side. His parents have no birth record whatsoever. They left their country with the clothes on their backs and their children and a sister.

And they have multiple friends who are similarly affected.

Anecdotally, Sen. Bayh's office called them yesterday to tell them they'd like to help, too. We'll see where that goes. Frankly, I wish I'd directed them to the plaintiff lawyers in the ID case...they're perfect plaintiffs in this matter. Much moreso than Crawford for cryin' out loud. But then, they weren't cirizens yet.

Out there in the real world, Gary, far from you and me, these cases exist. Many of them. Rokita's ridiculous law was not needed. Period.

If you think it's been tame in the past, wait to see if the newly-announced Immigration settlemenmt becomes law. Then, the floodgates will be open, to probationary citizenship AND voting, in some cases. With ketchy IDs.

What fun.

For what it's worth, the log still reads pretty darned well most of the time.

Again, I don't know why I'm getting worked up over these folks...they indicated they'd all likely vote straight Republican. They adore George Bush.

I'm glad someone does.

Anonymous said...

*sketchy IDs

Wilson46201 said...

Did the extremely-vocal new GOP Chairman call for a revote in those 5 precincts? Did he even call for extending voting hours Election Day? As I recall, he simply was correctly grousing loudly in general...

Jacob Perry said...

Oh the irony of D's not wanting every vote to count.

Where's Al Sharpton when you need him?

stAllio! said...

Did the extremely-vocal new GOP Chairman call for a revote in those 5 precincts? Did he even call for extending voting hours Election Day? As I recall, he simply was correctly grousing loudly in general...

as a matter of fact, tom john explicitly said he was "inclined against" extending poll hours:

Marion County Republican Chairman Tom John said he is not inclined to ask a court to keep polls open beyond today's 6 p.m. deadline despite a slew of problems that have kept some residents from casting ballots as of midday.

"Under state law, under the case law, it takes almost an act of epic proportions to do it," he said. "We're continuing to assess our options and what's right to do, but we are currently inclined against doing it because of the extraordinary nature of seeking a lawsuit to get that done."

if this election was not messed-up enough to justify extending poll hours, surely it wasn't messed-up enough to take the more extreme measure of holding a whole new election.

Anonymous said...

Stallio just hit it out of the park.

But Stal, friend...Republicans almost NEVER want to do anything to extend or open up poll hours. Or invite more folks to vote.

If only they did...

This entire event might change things.

Anonymous said...

The Scribe writes:
Where's Al Sharpton when you need him?

Apparently not hanging around with racists like you...or perhaps you can explain exactly what Al has to do with Indiana's primary screw up.

Gary R. Welsh said...

You don't see me defending anything Tom John has done or not done on this score. In fact, I specifically criticized his ridiculous suggestion that inspectors who failed to show for duty should be prosecuted for committing a Class D felony. I think he's been grossly negligent as the GOP County Chairman in failing to call for a revote in those precincts, or supporting the extension of voting hours on election day. I'm very unimpressed with his performance over the last 2 months. I hope he improves, because he's got a lot of room for improvement.

Wilson46201 said...

Would Bob Croddy have been any better?


Anonymous said...

Hey Wilson. I researched the parole board hearing for Radford and Rep Crawford was there, testifying for his release. How is that 'character assassination'?

Wilson46201 said...

It's an irrelevancy in a discussion of voting rights. It's just a crude attempt to sidetrack and derail a discussion of serious issues with a gossipy ad-hominem snipe... You seem to have an axe to grind against some parolee to spend so much time "researching" the hearings. Dont bring your personal grudges into a voting rights discussion...

Anonymous said...

I wasnt the poster regarding the first Crawford/Radford discussion, so I have no 'axe' or personal grudge to grind. I just find it humorous that you of all people get righteous and hissy about a 'personal ad hominem snipe' when that is the only thing you ever do. But at least you downgraded 'character assassination' to the snipe comment, so at least you showed some good judgement.

Anonymous said...

Gary, you really need to read Rick Hasen's piece today in Slate before making light of the Democrats' decision to continue the fight over the photo ID law.

Please focus your outrage where it belongs--on the Republican Party political operatives like Karl Rove and President Bush--for their outrageous efforts to corrupt our justice system and subvert our democracy.

Gary R. Welsh said...

This has nothing to do with the Bush Administration's botched firing of the U.S. Attorneys. The Clinton Justice Department under Janet Reno was a complete joke. We had the Chinese and other foreigners illegally financing the Democratic Party and Bill Clinton's presidential campaign. Reno's Justice Department covered the whole scandal up and refused to appoint an independent prosecutor. Nobody should have been surprised that the Clintons turned to a group of foreigners to finance the bulk of construction costs for the Clinton Library in Little Rock. Our own presidency sold to foreigners and nobody in the Democratic Party cared.

Anonymous said...

"If I have a naturalization certificate with my photo identification on it, I sure as hell call provide the BMV enough evidence to get a state-issued photo ID. I'm sick and tired of all the lies that the opponents of voter ID keep manufacturing to claim people are being disenfranchised. It's utter bullshit, and they know it."

Gary, that's not utter bullshit. I can verify that as recently as last fall the BMV office near my home even had a sign posted that stated that Certificates of Naturalization would be forwarded to the "Central Office" for verification with USCIS. I thought it odd since it was essentially creating a second class of citizen (which my wife will be a member of one day).

I even wrote Cindy Noe a couple of pages about that very issue when I sent back my legislative survey. She thanked me for "opening [her] eyes" to the problems that new citizens face.

Even aside from the voting issue, it's a real pain in the ass because the individuals are just issued a paper temporary receipt until the "Central Office" sends the actual license.

Gary R. Welsh said...

In light of the rampant corruption in the O'Bannon-Kernan BMV-run facilities regarding the immigrant population and the low skill set of most BMV branch employees, the Daniels administration set up a central office to handle any documents issued by the federal government to the immigrant population. If an immigrant has been issued citizenship papers, the BMV branch employees should be trained to understand what they are. However, having visited a number of the BMV brances facilities in Indy, I'm not sure even training will get the job done. The only way they have concluded they can control the uniform application of the laws and regulations is to assign this responsibility to a trained, central staff in Indy.

Anonymous said...

Wilson46201 said...

It's an irrelevancy in a discussion of ( Pick any topic )

Nuff said ...