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Today's Must Read
It's pretty fitting that one day after one of the biggest events this campaign season, the New Hampshire primaries, the Supreme Court will be hearing arguments on a case that could significantly affect the 2008 election: the fight over Indiana's voter ID law.
The issues behind Crawford v. Marion County Election Board are pretty simple to understand. The Indiana law, passed by Republicans, prevents citizens from voting without a picture ID, and they say it will stop voter fraud, though they can't point to a single instance of criminal voter impersonation occurring in the state. It is a solution in search of a problem.
Or rather, it's a solution to a very different problem. In this issue of New Yorker, Jeffrey Toobin writes that the voter ID laws, which Republicans have pushed in states throughout the country, are a reminder that, though racism has disappeared from mainstream political discourse, "racial discrimination itself" has not been banished from politics:
“Let’s not beat around the bush,” Terence T. Evans, the dissenting Court of Appeals judge in the Indiana case, slyly wrote. “The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.” He’s not the only one to notice: the three federal judges who approved the Indiana law were appointed by a Republican President; the lone dissenter was appointed by a Democrat. It was also Republican-dominated legislatures that produced the Indiana and Georgia laws, both of which were signed by Republican governors.Who are the “certain folks,” in Judge Evans’s delicate phrase, that the Indiana law is trying to discourage? The best answer can be found in a friend-of-the-court brief in the case filed by twenty-nine leading historians and scholars of voting rights. They concluded that the Indiana law belongs to a malign tradition in “this nation’s history of disfranchising people of color and poor whites under the banner of ‘reform.’ ” Such measures as the poll tax and literacy tests, they write, were “billed as anti-fraud or anti-corruption devices; yet through detailed provisions within them, they produced a discriminatory effect (often intended) within the particular historical context.” So it will be in Indiana, where the law creates a series of onerous barriers to voting.
And don't forget that the United States government, by way of the Justice Department, has weighed in to support the Republican side of the argument. As election law expert Rick Hasen has pointed out, the fight over voter ID laws has been strictly partisan -- Republicans push and support the laws, Republican-appointed judges uphold them, and recently Republican secretaries of state have written amicus briefs in support of Indiana's law. So the Bush Administration's decision shouldn't surprise.
The court will deliver a decision by late June, in time to affect the November elections. As for what's likely to happen Wednesday, Toobin himself is not optimistic about the outcome of the arguments:
As a general matter, in recent years the Court has been reluctant to find what is charged in this case: a violation of the constitutional guarantee of equal protection of the laws. (The notable exception, to belabor the issue, was for a plaintiff named George W. Bush.) In the end, though, it will not be the judiciary that rescues democracy; whatever the obstacles, the problems with the ballot box must be solved at the ballot box. In the end, though, it will not be the judiciary that rescues democracy; whatever the obstacles, the problems with the ballot box must be solved at the ballot box.
Note: Here's The New York Times' rundown of the case.
Comments (23)
sparky wrote on January 7, 2008 9:42 AM:To me, this is one of those under the radar kinds of issues that the GOP has been using for decades (dog whistle, anyone?). The more daylight shed on it the better, even if, as I expect, the SCt decides it doesn't amount to unconstitutional discrimination. Come next January, all of this garbage will, I trust, begin to be swept away.
DRinOH wrote on January 7, 2008 10:18 AM:I'm actually writing my law review article on these laws right now. This one will probably be upheld, but I don't think the Court is going to give carte blanch approval to voter ID laws in general. Most of them have an indigency exception that will save them from being declared unconstitutional (though the Indiana law's is probably the most narrow of them all).
It's going to come down to standard of review. For non law scholars that means the court will either apply "strict scrutiny" (95% chance it's struck down as not narrowly tailored to a compelling government interest), or "rational basis" review. (95% chance the court will find the law is "rationally related to a legitimate government purpose - i.e. preventing fraud).
The best brief I've read, and the one which my article follows closely, is the one from Elemendorf and Tokaji.
Roadside Bill wrote on January 7, 2008 10:55 AM:Sparky is right about this issue largely being "under the radar." Tragically, during the last seven years, and perhaps longer, election and democracy-reform issues have not been a priority of the progressive movement, yet the broken structures of our democracy support the status quo -- a lot -- and stand in the way of government that truly reflects the will of a majority of Americans.
Republicans, unfortunately, have been behind the worst of the worst when it comes to disenfranchising voters. While embracing Bush's lofty rhetoric about democracy and freedom, they have purposefully and effectively undermined both here at home, making a mockery of our nation's commitment (or myth?) to the power of the ballot.
Until progressives make issues like this a top priority, we will have fights that shouldn't even be fights on health care, war, and the corporatization of our society. We need a democracy movement to save our own democracy.
Dan Kurtz wrote on January 7, 2008 11:18 AM:The naked GOPocrisy that allows an administration that owes its existence to the Supremes turning the notion of equal protection on it head then depriving a 71 year old black Republican — that everyone at her local precinct knew that she was who she said she was — is indicative of what the Republican Party actually stands for.
Tony wrote on January 7, 2008 11:23 AM:Everytime I hear this argument of disfranchising voters buy insisting on identification to vote, I can't help but wonder how many are we actually talking about. My 86 year old mother, who has never drove a car or had a Drivers License (I know, crazy but true) still has a Calif ID.
JohnG wrote on January 7, 2008 11:27 AM:The law makes one exception -- voters who are in a nursing home do not need ID. Why? Because they vote GOP (or the staff makes sure they do so)?
Also, there is a major amount of fraudulent voting, but it occurs with absentee ballots. There is no photo ID requirement for absentees. And, with absentees, there is no assurance that even if the right person requested the ballot, someone didn't make sure how that person voted. I am waiting for the first confirmed case of someone in "vote by mail only" Oregon getting the entire family together to supervise their voting.
BrianK wrote on January 7, 2008 11:35 AM:Here in Indiana, we're not holding our breath. There was a bill in the state legislature last session to redefine the ID requirement, and groups throughout the state are working to get this voter suppression/Poll Tax law changed.
Then again, it would be nice if the Court stepped in to help us out...
BrianK wrote on January 7, 2008 11:39 AM:One more thing that hasn't gotten enough attention with this case:
This law was put into place at the same time that many BMV branches - especially those in urban areas - were being closed and/or relocated. In addition, getting the "free ID" from the BMV requires some serious documentation. To get official copies of these documents requires some serious time commitment and, in some case, money.
Billy Pilgrim wrote on January 7, 2008 11:41 AM:Thank you Tony for your enlightened remark.
This will give Clarence Thomas the opportunity to demonstrate how much he hates his parents for causing him to be born with the wrong skin color.
bakho wrote on January 7, 2008 12:07 PM:Some IDs work and some don't. One requirement is an expiration date on the ID. Some State Colleges have expiration dates, some don't. If you go to College A, your student ID is valid. If you go to B it is not. Only IDs issued by State colleges are valid. Notre Dame student IDs are not valid because they are private. An IN drivers license is valid. A Calif license is not valid.
MIdwest Republicans are mostly 'locals' that don't want 'outsiders' (people whose parents were not born here) to vote.
jolly ranchero wrote on January 7, 2008 12:17 PM:And I'm sure The Official ID Dispensing Office will be 300+ miles from Indy, Gary, and Ft. Wayne. And suddenly bus service to those cities will disappear...
Peter vander arend wrote on January 7, 2008 12:33 PM:This will be a very interesting one to watch. Will the Bush appointees back the picture ID plan? Will Scalia and Thomas line up with Bush's appointees? If they do, you know our country is in for a major assualt on personal liberties - just as was described by Ron Paul in his interview with Bill Moyers last Friday.
Bob wrote on January 7, 2008 12:41 PM:The Constitution forbids a poll tax. Is anyone arguing that ID requirements, unless the IDs are free, amount to unconstitutional poll taxes?
I am looking forward to reading Toobin's article on this subject. I know it is increasingly an article of faith among the more liberal among us (and I am certainly "liberal" in the context of the politics of the Bush era) that ID requirements are discriminatory. But if IDs were easy to obtain and free, then would they really be discriminatory? How, and how much?
Bob wrote on January 7, 2008 12:54 PM:OK, I've read Toobin, and he makes the following argument that seems strong on its face -
"So it will be in Indiana, where the law creates a series of onerous barriers to voting. Consider one: you can get a government photo I.D. by showing your birth certificate, but you can’t get a copy of your birth certificate unless you can produce certain official photo I.D.s. And, with up to twenty million Americans of voting age lacking government-issued identification, the matter of requiring photo I.D.s has broad implications."
I don't doubt that many of the "anti-fraud" advocates are motivated by racism and/or partisanship, so if Toobin portays the situation accurately, and I have no reason to doubt that he does, then the proponents of these laws really have some 'splainin' to do - whether the SUpremes require such explanation or not is the question. Bush v. Gore does not make me hopeful.
BrianK wrote on January 7, 2008 1:31 PM:The Brennan Center has filed an amicus brief in this case, and they have a good rundown, as well as most of the relevant docs. The first sentence of their summary: "The Indiana voter ID case is the most important voting rights case since Bush v. Gore." (brennancenter.org)
TEL wrote on January 7, 2008 1:42 PM:John G.,
Prove that absentee voting and voter fraud go hand in hand. Do not make such idiotic right-wing talking points without something to back them up. I am a former Oregon voter, and a current CA voter with permanent absentee voter status, which I decided to apply for so I would avoid the electronic voting machines used at my voting precinct. Absentee ballots, which are actually scanned and leave a paper trail, are more secure than the idiotic electronic machines which were forced on us before any proof of principal was reasonably demonstrated. When California goes back to paper ballots (which is supposed to happen soon) I'll reconsider my choice for absentee voting, but not before.
JMOHR wrote on January 7, 2008 2:31 PM:I loved my father; however, he was a rascist. We would try to discuss civil rights issues (I was born in 1952) such as voting rights, employment rights and discrimination in public accommodations. He was always on the side of the consevatives. He believed in literacy tests for blacks, not because he was a racist but because blacks just did not get an adequate education and thus should be subjected to a stricter standards while poor whites should be given a break because they had received a better education. School discrimination, not racism. It just recognized that blacks could not do as well in school and should not drag down the white students. On and on it would go. He was a product of his generation. The current batch of Republicans do not have that excuse. You can see a smirk on their face betraying their real motive.
moondancer wrote on January 7, 2008 2:50 PM:The semantics change, the core racism is still there. It is the basis of the GOP. Without it, the GOP would be forced to more moderate positions.
MR. Bill wrote on January 7, 2008 3:36 PM:I have a bad feeling that SCOTUS will come with the predictable 5-4 in favor. Then watch for the next step. Incremental elimination of voting rights for the people of color. Same strategy that christo-fascists are using to overturn Roe v Wade.
Grrr. I keep hearing the Wingers, like the odious Neil Boortz, saying "the wrong people vote..." and then claiming they'll just vote themselves welfare..
And, as I've posted elsewhere, as a person who has actually counted votes in Georgia elections, it's not false identities and multiple voting at the polls that is an issue in 'stealing elections', but absentee ballots and manipulations of electronic voting, issues that the Georgia law (and it would seem, most of the other Republican sponsored laws in other states) does not address. I know this is difficult for some folks to believe, but there are voters who do not drive or have a picture ID. Formerly, Georgia law allowed a number of possible IDs (electricity bills, Social security check stubs) but now it is reduced to just the Driver's license and the State photo ID. Both are available at limited locations. And there are a number of folks who simply won't get the message.
And I keep hoping that the Civil Rights groups would come up with a campaign to get the picture IDs for all voters, and shove this attempt to disenfranchise a lot of people up the nose of the people who can't imagine that other folks might live the sort of life that does not require a driver's license or picture ID.
I can imagine a commercial:
(Tracking shot of a modest home in quiet neighborhood, goes to closeup of nice old black lady on the porch.)
NARRARTOR: "Mrs. Inez Jackson loves her family (shots of children with her, and photos of family)="her Garden" (she's outside, in flowers) "and her Church". (shots of nieghbors picking her up, Bible in hand, and driving to church, where she's seen singing in the pew)
"She keeps up the the news" (shot with newspaper, and watching TV news)"and was very proud to have worked to get the right to vote" (old photos of Civil rights marchers, one of which will be seen to be on her wall at home)
"And if Sonny Perdue and the Georgia republicans have their way, she's about to lose that right, because she doesn't drive or have a photo ID"
(Shot of her shocked and hurt.)
"Don't let this happen. Contact us and we'll help you keep the right to vote."
(Screen of contact info.)
DRinOH wrote on January 7, 2008 3:43 PM:This must be fought, and this is a opportunity show this effort for what it is, a scheme to disenfranchise people the Republicans don't think worthy to participate in our republic.
I actually have a little confidence in Kennedy on this one. He dissented in Burdick, which is the case that everyone agrees (with the notable exception of Chemerinsky - read his brief) will govern this, so there's hope...
serena1313 wrote on January 8, 2008 1:38 AM:In addition to mandating voter ID's the GOP's is actively involved in disenfranchising even more voters. They created what is known as "caging" lists whereby hundreds of thousands, even millions, of legitimate voter names reportedly were removed before the 2004 elections and other recent elections. Accordingly they've already started eliminating more names for the 2008 election.
Without the burden of proof everyone is at risk if your name is similar to that of a felon's. Their method is [dis]- ingenious.
For example, William G. Smith, a felon, is not allowed to vote. Therefore his name removed as well as anyone whose name is remotely close (any combination thereof): William Smith, G. William Smith, Willard Smith, W. Smith, G. W. Smith, W. G. Smith, so on and so forth are removed likewise.
Another GOP favorite: voter address verification letters with "do not forward" stamped on the outside of the envelop. Letters are sent to the students' school address during spring or summer breaks. Military personnel serving overseas cannot possibly verify letters sent to their homes. I imagine a good share of people assume it is junk mail. The republicans know no bounds. They cannot win on their own merits so they cheat. How democratic is that!
Investigative reporter, Greg Palast, has written extensively on this subject. His ongoing investigative research is well worth your time to read [Google]. Although the BBC, The Guardian and other foreign news outlets publish Palasts' work, one is hard-pressed to find it in any US news source. They will not touch it!
serena 1313 wrote on January 8, 2008 1:49 AM:In addition to mandating voter ID's the GOP's is actively involved in disenfranchising even more voters. They created what is known as "caging" lists whereby hundreds of thousands, even millions, of legitimate voter names reportedly were removed before the 2004 elections and other recent elections. Accordingly they've already started eliminating more names for the 2008 election.
Without the burden of proof everyone is at risk. For example if your name is similar to that of a felon's or remotely close to William G. Smith, any combination thereof will suffice: William Smith, G. William Smith, Willard Smith, W. Smith, G. W. Smith, W. G. Smith.
Another GOP favorite: voter address verification letters with "do not forward" stamped on the outside of the envelop. Letters are sent to the students' school address during spring or summer breaks. Military personnel serving overseas cannot possibly verify letters sent to their homes. I imagine a good share of people assume it is junk mail. The republicans know no bounds. They cannot win on their own merits so they cheat. How democratic is that!
Toast wrote on January 8, 2008 11:22 PM:Democracy a la americaine. Between voting machines, ID cards, and what not, the Carter Centre for clean elections should look at home FIRST and SERIOUSLY. I find the last two outcomes hilarious, making the American election process a rigged event. You thought the elites would be sitting quietly doing nothing, while Dr. Paul's growing "revolution" would eliminate their empire. Empire or not, no dollar, no empire. As the dollar continues to slide down the slopes, I am sure the elites have some other plans ready to put into action, illegally of course, as has been for the last several years. The one good thing out of all this, is we have exposed those invisible, discreet, "rulers", the global media, people's reps. and a whole lot of inconsistencies with their programs. The latest bill is to disarm the people, before ???