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The Supreme Court, Face to Face with the Politics of Voter ID PDF  | Print |  Email
By Bob Bauer   
November 09, 2007

This article was posted at Bob Bauer's Blog and is reposted here with permission of the author.


The Supreme Court has never done well to jump into the middle of partisan politics when, as in Bush v. Gore, its intervention seems decidedly one-sided and deficient in neutral principles. But it fares no better if, ignoring partisan politics altogether, it turns a blind eye to illegitimate, ill-motivated burdens imposed on fundamental rights. The Indiana photo ID case asks the Court to confront the political facts "on the ground," which are these:  a legislature dominated by one party imposes a stringent ID restriction, the most stringent of its kind in the nation, in the knowledge—the very common knowledge—that it would solve no known problem but will burden most heavily voters allied with the opposition party. We will soon find out whether the Court faces this fact or ignores it; whether it deals squarely with political reality, or passes it off as of little jurisprudential significance.


The Indiana Democratic Party does what a good party, in defense of its supporters and adherents, would do, and it presses the Court to take account of the reality of partisan abuse in the regulation of electoral mechanics. The party’s point is restrained, all things considered: it does not call on the Court to rest its case on a finding of partisan intent or bad faith, but it asks that the constitutional standard be applied with a degree of "stringency when there is every circumstantial reason to believe that a given law was designed to suppress votes cast for political competitors."  Indiana Democratic Party Brief at 40.


The Court does not have to go out of its way to find this reason, to justify this belief, on the record. As Indiana sums it up:

Furthermore, the circumstances of the law’s enactment are studded with "danger signs" of abuse of the power to regulate elections.  See id. at 2492-93 (plurality opinion).  Forms of photo ID have been issued by States for decades.  But not until 2005 did any State require every in-person voter to show photo identification.  Then such laws started to be passed only in Republican-controlled legislatures around the country, during a time when there was a heightened awareness of the possibility of close elections due to nationwide partisan parity.

Id. at 39.


At the least, Indiana reasonably suggests, there is a reason to suspect motives, and surely this must have a bearing on how the Court approaches the resolution of the case. 


Rick Hasen and his co-counsel try to shore up the Court’s resolve to accept the challenge. Following Bush v. Gore, election law litigation has flourished, and outcomes appear, alarmingly, to mirror the partisan composition of the courts. So did the outcome in Indiana.  Hasen, et al. urge the Court to take this opportunity to arrest the descent into what, to all appearances, is the sordid politicization of election law case adjudication.  The Hasen suggestion seems to be the entirely reasonable one of having the Court clarify the standard of review of Burdick v. Takushi (504 U.S. 428 (1992)), and—crucially—to provide that state restrictions stand or fall on some evidence of the need for them.


And that is what the Hasen brief asks for:  just creditable evidence, of which, in this instance, there is none.  Evidence would enable a restrictive electoral law to meet the requirement of "reasonable," and not more than reasonable, tailoring to the asserted state interests. An absence of evidence would cause the state’s action to fail this requirement, and failing along with it would be any improper partisan motivation that is a "usual" suspect in these circumstances. 


On the adoption of Hasen’s test, the Court would not usher in an era of radical skepticism or inquiry into political motive: all Hasen asks for is evidence, which the Indiana legislature did not think necessary. "Because Indiana failed to present any evidence," Hasen and his colleagues write, the Indiana ID law, crafted by one party over the vehement objections of the other, should be struck down. (Emphasis added.)


When the Supreme Court decided the McConnell case, upholding McCain-Feingold, it credited itself with seeing things, in the political world, as they really and truly are.  The majority passed practical judgment on what donors really expected; how, and with what assumptions about gift and reward, parties and candidates raised money; what certain organizations, airing their views, really hoped to accomplish. This was one instance, one of a number if not the most impressively argued, when the Court has wished to be wise in matters politically and to not turn away from political reality.


The case for such realism is far stronger here. Whatever happened in Indiana, it did not happen after careful reflection on any facts. To suspect motive is not to display a fevered imagination. 


The ACLU in its brief, avoiding any reliance on partisanship, comes to the same conclusion about the absence of any well supported reason for the burdens the Indiana legislature chose to put on certain of its voters, who happen to vote overwhelmingly for opposition candidates. It states:

Indiana’s explanations…are inadequate at best and pretextual at worst. The State has failed to explain why it has chosen to impose new and significant burdens on in- person voting to fight a non-existent problem of fraud while explicitly choosing not to impose any burdens on absentee balloting where the risk of fraud is demonstrably more substantial. It has failed to explain why signature comparison and detailed criminal provisions are adequate to prevent absentee vote fraud but not to prevent in-person vote fraud. It has failed to explain why Indiana requires more onerous identification requirements than any other  state in the Nation…Under any scrutiny, the identification law is not tailored at all to meet the fraud concerns expressed by the State.

It certainly seems that a state, when acting to restrict access to the franchise, should have more to go on than speculative dangers or risks. When it has nothing more, there is usually else something else afoot, and the Court, knowing full well what it is, ought not to pretend otherwise.

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