It's rare that the life of the law dovetails with the life of the nation, although today the Supreme Court looks at a vitally important voting-rights case just as we're all obsessing over the presidential primaries. But this is not the Rehnquist Court, my friends, so the first order of business today is for the justices to distance themselves from the partisan constitutional atrocity that was Bush v. Gore—without, however, expanding voting rights in any way. Thus the Roberts Court sticks to doing what it does best: figuring out subtle ways to close the courthouse doors while appearing to be merely sweeping a little doctrinal dust from the court's front steps.
The real problem with Crawford v. Marion County Election Board is that the whole case is a dance of the seven veils. By which I mean that voter-identification laws are phony ways to solve pretend problems, while today's challenge to those laws is thin on evidence of real voters who've suffered real harms. A chimera doing battle with a fantasy. Oh, goody.
When Indiana adopted its voter-ID law in 2005—requiring voters to present a government-issued photo ID before casting a ballot—the state purported to be beating back the malodorous tide of vote fraud that was ostensibly sweeping the nation. But as professor Richard Hasen has ably demonstrated here inSlate, this vote-fraud epidemic is largely fictional. The major bipartisan draft fraud report (PDF) on the subject concluded there's very little polling-place fraud in America. So, increasingly, the effort to stop fictional vote fraud looks like a partisan effort to suppress votes that tend to go to Democrats—and somehow, it's always indigent, elderly, and minority voters who are disproportionately affected. A Republican-controlled legislature passed Indiana's law on a party-line vote, and then a Republican governor signed it, and every judge to cast eyes upon it thereafter seemed to be for or against it based on his or her own political affiliation.
The Indiana Democrats, joined by the ACLU and others, sued shortly after the voter-ID law was adopted. Both a federal district court and then the 7th Circuit Court of Appeals (in the most readable piece of legal writing in history) upheld the law. Judge Richard Posner, writing for the majority, argued that few registered voters, faced by the voter-ID requirement, "will say what the hell and not vote." Judge Terence Evans, retorting in dissent, was equally blunt: "Let's not beat around the bush: 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."
At oral argument today (getcher red-hot transcript here), Paul Smith, representing those would-be voters who skew Democratic, rapidly runs afoul of Justice Antonin Scalia, who maintains that Smith's clients have suffered no actual harm and thus have no standing to bring suit. Chief Justice John Roberts then observes that based on the record, "[N]ot a single voter was prevented from voting." To which Smith replies that the plaintiffs filed suit before an election had happened, so it would have been tough to roust out someone who'd actually been disenfranchised.
To highlight the lack of real facts, Scalia and Roberts go a few silly rounds with Smith over whether in an imaginary hypothetical—an imaginary religious objection to photo ID—was imaginarily not raised. (Smith confesses to being confused.) Roberts pushes Smith on whether asking indigent nondrivers to take a 17-mile bus ride to procure the proper ID is really all that onerous. And noting that Indiana has a particularly hideous problem with dead people and other nonvoters on its rolls, Roberts asks whether that alone doesn't make the state particularly at risk for vote fraud.
"But there's not a single recorded example of voter impersonation fraud in Indiana," begins Smith, who should have been allowed to sit down after making just this argument. But the chief justice offers up two fine pretend arguments for the pretend law: 1) Pretend Vote Fraud might become a real problem someday; and 2) it's so hard to detect that Pretend Vote Fraud might be a problem now—we just don't know it yet. Let's eradicate the pretend problem of invisible naked jugglers while we're at it, then.
When Smith explains that it's actually fairly easy to detect voter impersonation fraud because the person whose identity was stolen tends to complain when she shows up later to vote, Scalia points out that "people who are dead or have moved away aren't coming in and objecting."
Justice Samuel Alito points out that a 2005 bipartisan commission on election reform, co-chaired by Jimmy Carter and former Secretary of State James Baker, also called for voter-ID laws. But Justice Ruth Bader Ginsburg reminds him that those IDs were supposed to be "easily and costlessly" procured over a period of time. Smith adds that the commission also found that 12 percent of eligible voters in this country don't have a driver's license.
Alito neatly summarizes the problem of a case without facts: "If you concede there can be some kind of voter-ID requirement, where do you draw the line?" he asks. Particularly "on a record like this where there's nothing to quantify in any way the extent of the problem or the extent of the burden." Smith replies that voting cases warrant special scrutiny for fear that partisan legislatures will inevitably regulate the voting process to skew in their favor. After Justice David Souter pushes and pushes, Smith offers up the guess that about 200,000 voters will be burdened by the current Indiana law.
Thomas Fisher, Indiana's solicitor general, promptly rises to dispute that number, estimating that the number of voters who might be affected by the voter-ID law is "infinitesimal"—less than 25,000. Quite a statistical spread there, but that happens when both sides in a case are free to invent the data.
And then, what's that I hear? Right. The sound of the shoe dropping. Justice Scalia asks Fisher why a facial challenge—an objection to the law as written, as opposed to applied to a real-life plaintiff—is even acceptable here. "Why," he asks, "are we arguing about one-half of one percent who may be affected?" He asks what precedent there could be for knocking down the entire law based on a facial challenge here.
(OK, lightning round con-law review: "Facial challenges" claim that a law is unconstitutional under every set of facts. They have traditionally been a useful mechanism for knocking down patently unconstitutional laws—one that allows lawyers to get cracking before a lot of people get thrown off the voting rolls, say, or can't get an abortion because of a hugely burdensome regulation. The tougher alternative is to require a real harmed plaintiff to bring an "as-applied" challenge, based on the premise that the law in question may be constitutional in general but not when applied to her. More from Mike Dorf here.)
With increasing frequency, the court's conservative wing has been chipping away at facial challenges (the better to bar litigation), and today Scalia takes out a sledgehammer: "I mean, every facial challenge is an immense dictum on the part of this court, isn't it?" He goes on to characterize all facial challenges as the court "sitting back and looking at the ceiling and saying, oh, we can envision not the case before us, but other cases …"
Ginsburg tries to establish that the reason for allowing facial challenges is that when a law burdens the right to vote, "[T]he horse will be out of the barn." While waiting to suffer real injury, plaintiffs get to kick back and watch "election results skewed for the other party, while they were unable to vote." In the case of Indiana's indigent voters in particular "that's not hypothetical, that's real."
Then Kennedy enters stage right, struggling to make the Indiana law at least slightly less burdensome, while preserving "the central purpose of the statute." And the brilliant Solicitor General Paul Clement, defending the law on behalf of the Bush administration, drives the last stake through the heart of facial challenges, by making it sound ever so reasonable for the court to wait around for some real voters to be truly disenfranchised, and only then tweaking the statute some to help them out. Kennedy looks hugely relieved; Roberts practically burps him. But Stevens asks whether it's not slightly "unrealistic to assume" that indigent voters without cars might find it, er, "[E]asier to file a lawsuit and bear the burden of litigation rather than go back to get the second affidavit" needed to get their ID cards? If you're too poor or marginalized to track down your birth certificate, is filing a federal class-action suit really the faster, cheaper alternative?
In his rebuttal, Paul Smith is dramatic, warning that if the court were to scrap facial challenges in this context, election law would become a "morass" and "that way lies madness." He reminds the court that "nobody challenged the poll tax as applied." But Kennedy isn't going for it: "You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?"
"Only if that law serves no purpose," replies Smith.
"What if we determine that it does serve a purpose in preventing fraud?" asks Roberts. (Which can totally be done if you count hypothetical future acts of invisible fraud as vote fraud.) Well, then it might look totally reasonable to uphold the Indiana law.
To recap: I fear I am counting five justices who believe that a nonexistent problem can be constitutionally cured by burdening the fundamental right to vote. Happy byproduct? Doing away with those pesky facial challenges that liberals like to use to address massive injustices. So in the guise of doing away with hypothetical future challenges to a law, the court is poised to uphold a law that solves hypothetical future problems in voting. And for those of you wondering why the court didn't see fit to release audio for today's monumentally important argument, the answer remains, who knows? But here's one guess: The justices didn't want to be caught on tape sounding like the same 5-4 court that decided Bush v. Gore, even if nothing has changed.