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I just can’t muster up a lot of outrage about Indiana’s Voter ID law. Tim is right that we have a de facto national ID now. The Indiana law is nothing like a poll tax: This law may or may not be attacking a nonexistent problem of voter fraud, but either way, it’s attacking it by requiring people to do something almost everyone would do, anyway.
Jack, I thought David—like Deborah—was saying that one of the injuries the Indiana law is correcting is the perception—warranted or not—of voter fraud. David’s point: That perception may well be in the way of other reforms to make voter registration and voting easier (example: the most commonly voiced objection to voting by phone or by the Internet is fraud—an ID requirement might address such concerns and lead to sensible reforms that would allow more people to actually vote). Whether or not any such reform would be wise, maybe it’s better that the courts stay out of this and let the political processes at the state level work.
From this perspective, it’s a bad idea for the courts to require the state to show they’ve already implemented the reforms in order to“compensate” for the burdens of the voter ID law because 1) there’s little evidence of any more than minimal burden; 2) the point isn’t that the reforms would “compensate” for the burdens of the voter ID law—it’s that the reforms would be good in and of themselves (even if they, say, make it easier for different people to vote than the people burdened by the voter ID law); and 3) the ID law may be the precondition to the other reforms: If the state had to show that it had already taken steps to ameliorate the (possibility nonexistent) burdens, then it would never be able to generate the confidence that would smooth the way for the reforms.
Another way of looking at this—maybe a formal voter ID law is better than voter eligibility requirements that are enforced ad hoc—either at the polls by overzealous poll watchers or after the fact through litigation challenging the results. The ID law makes it simple to ensure that everyone who votes is who they say they are and to check and make sure no one votes twice, thus reducing the need for other types of (often discriminatory) enforcement and cutting the legs out from under potential litigation by the losers of the election. Echoing David: Shouldn’t the Constitution allow a state to make such a trade-off, at least unless someone can show actual and significant injury in the application of the law?
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First, Sen. Obama sort of half-shunned Jeremiah Wright—the video clips don't do justice to the man's good work as I knew it; then Wright surprise-shunned Obama—he's just a politician doin' what politicians do, which prompted Obama to double-shun Wright—say what again about roosting terrorist chickens and the government's spread of HIV? Not to be outdone, Bob Novak wants the Catholic Church to shun a good chunk of the Democratic congressional leadership by excluding them from communion.
This primary has definitely gone on much too long. I know it's not over until the Howard Dean screams, but. please, must we wait until November?
Sen. Obama—let the good Rev. Wright play out the "crazy Uncle Harry" routine; in this case, you are definitely not your brother's keeper.
And Mr. Novak, "judge not lest ye be judged and found unworthy."
So, now that we have transcended the politics of race and division, what's next?
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A colleague forwarded this memo from Deputy Defense Secretary Gordon England directing the promotion of the Army, Navy, and Air Force's top uniformed lawyers—giving them an additional star and promotion to lieutenant general or vice admiral, respectively. The promotion order will take some time to process, as it must be vetted, packaged, and formally submitted by the president for the advice and consent of the Senate, but this is now effectively a done deal as far as the Pentagon is concerned.
What's interesting is that Congress mandated these promotions last year in the National Defense Authorization Act. But as Scott Horton recounts, those promotions were delayed by former Pentagon counsel William "Jim" Haynes II, who wanted to maintain the dominance of senior political appointee lawyers over the services' uniformed lawyers—exactly what Congress wanted to reverse. Haynes sought a Justice Department opinion on the matter and slow-rolled the promotions as long as he could. However, Haynes left the Pentagon a few months ago with his own star in decline. It appears that Defense Secretary Gates ordered the promotions as a way to build bridges between senior political appointees and senior military officers and a way to move past the Rumsfeld-Haynes legacy on detention and interrogation policy.
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Ooof—well, Dawn, I certainly didn't intend to leave the impression there are no differences between Indiana Dems and Republicans. And perhaps I may be granted some dispensation for having lived in the district that elected Dan Burton, R-Ind., to Congress. Repeatedly. By overwhelming margins. My, I hope far less troubling, thinking was just that if one were to put the Indiana parties on a national scale of liberal to conservative, former Gov., say, Evan Bayh, would not fall very close to, say, Ralph Nader.
But my more serious point was to raise questions about how flawed Stevens' reasoning really is here. I'd like to think my bona fides in securing free and fair elections for all are decent, particularly after having spent the last two presidential elections, for example, doing poll monitoring in blistering Florida. And I've no doubt the Indiana ID requirement will pose a burden on some voters, most especially those at the economic margin. But I read the splintered decision to leave exactly those challenges open, no?
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Oh, Deborah! Writing that there are negligible differences between Hoosier Ds and Rs, just days before our election! Last night I co-hosted a fundraiser here in Bloomington, Ind., aimed at electing a Democrat to replace Republican Mitch Daniels as governor of our Hoosier State, while we still have some remains of a government he hasn't privatized. What a blow to come home and read your words. Shades of Nader!
Sure, it's a relatively conservative state. But if this were a political blog, I would (and could) post a lengthy list of major differences between the Ds and the Rs, both among our current candidates and among our previous officeholders—including in how our state was run under our three Democratic governors who immediately preceded Daniels. (Full disclosure: My husband was part of two of those three Democratic administrations.)
By the way, I can match your story of pressure to register as an R in Indiana with my own from the blue state of New York, where I first registered to vote. In my case, they came into our high-school classes to register us all, and our teacher explicitly advised that if we ever wanted a shot at one of those coveted, cushy summer jobs working on the beaches of Long Island, we had better register as Republicans.
But this is a legal blog, so let me say a few things about the Crawford decision. First, Indiana's votes in the presidential races of the last decades are not representative. We have many very close races here—local, state, and Congress—with frequent party switches. Just one e.g.: The Indiana House was evenly split twice in the last two decades. So, Rs don't have to suppress many votes—through this excessive and indefensible ID requirement and other tactics—for it to make a difference.
Second, I recall stories from poll workers last election about how sad and outrageous and punitive it felt to have to turn away honest citizens seeking to vote. Little wonder that young people and others often feel disaffected and discouraged from participating when the atmosphere is comparable to being sent to a high-school principal's office rather than being welcomed and encouraged to participate in our great democracy.
Reading some of the reactions here in Indiana to the Crawford decision, it struck me that many (by no means all) of the people who support the court's outcome simply don't feel that way. The point for some is that they really don't want certain kinds of people to vote, that they even feel if people won't take the "trouble" to manage the logistical and financial barriers our state has erected (which pose no problem for most), then they simply don't deserve to vote. Of course, everyone is against fraud, but who really thinks this is about fraud?
Finally, at that fundraiser last night, there actually was strikingly little discussion of Crawford. Intense and heated feelings about the presidential primary of next week was soaking up all of the oxygen, and I think muting the outcry the court's decision deserves.
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Earlier this month, I wrote about a lawsuit against the government brought by the family members of Francisco Castaneda, who was refused a biopsy for a lesion on his penis while in immigration custody, and then died after having his penis amputated. The government initially moved to dismiss the suit on grounds of immunity. Judge Dean Pregerson of federal district court in California rejected that argument after some neat statutory detective work, which makes it look as if a lot of other courts have been wrong to grant the government immunity under the Public Service Health Act, which addresses medical negligence by government doctors and nurses.
Now the government has in fact admitted negligence. That could mean up to $250,000 in damages for Castaneda's family. More importantly, it shows why Congress was right not to give blanket immunity to government health care providers, as Judge Pregerson found.The doctor who treated Castaneda (or rather, apparently failed to treat him) testified that she doesn't feel responsible for Castaneda's death. But now the courts can find otherwise.
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The "facial" vs. "as applied" distinction animates the minimalism of the Roberts Court. You may remember that Chief Justice Roberts gave a speech at Georgetown shortly after his confirmation, saying that what doesn't have to be decided in a case shouldn't be. But, of course, Chief Justice Roberts also said that he would be pursuing a larger number of unanimous outcomes—an aspiration that seemed to run aground in his second term when the court had one of the highest number of 5-4 opinions in decades. But the "facial/as applied" distinction that resurfaced in the Crawford voter-ID decision and that has played prominently also in areas of abortion (Ayotte; Carhart) and more recently in the lethal-injection case (Baze v. Ky) reveals that some may have dismissed the chief's efforts at achieving unanimity, or at least greater consensus, prematurely.
As the not entirely ideological 6-3 configuration in the Crawford case reveals, pronouncing an Act of Congress or a whole legislative enactment by the states to be unconstitutional on its face is strong medicine, and for that reason, it is especially unlikely to be pursued by any member of the court inclined toward preserving the idea of a more-tamed judicial posture. Justice Stevens may be substantively liberal, but in terms of his understanding of the judicial role, he is a moderate conservative. His dissent in Bush v. Gore, after all, was about keeping the court out of the presidential election. By distinguishing between the facial and as-applied challenge, Justice Stevens satisfies both sides of his personality: He can be conservative in facial outcome by upholding the statute's general contours while preserving and signaling that he would be substantively liberal in application—e.g., in Crawford being relatively quick to find in a later case that a specific election requirement was burdensome. For somewhat different but overlapping reasons, the "facial/as applied" distinction appeals to Justice Kennedy's Hamlet personality, since he can be for and against the statute at the same time—which may sound flippant, but it in fact reflects Justice Kennedy's commitment to particularized justice. See, e.g., his separate opinion in Rapanos (indulging a multifactored analysis of navigable waters under the Clean Water Act) or Parents Involved (similarly indulging the possibility of some uses of race that are not specifically visited upon the student, but might be used to lessen racial stratification by, for example, a siting decision of where to build a new school).
It should be noted that the "facial/as applied" distinction did not begin with Roberts, though it has been more successful under him. Chief Justice Rehnquist sought to use the distinction in the context of his handcrafted doctrine of 11th Amendment sovereign immunity, but there, he was using it not to sustain legislation, but to strike it down. Consider, for example, Rehnquist's proposed use of the distinction in Tennessee v. Lane. Rehnquist would have found the ADA to be invalid under the 11th Amendment on the theory that Congress had not legislated in a congruent and proportional way to address unconstitutional state behavior in a sufficiently targeted fashion. Rehnquist was able to reach this conclusion because he conceived of the proper focus to be facial rather than as applied. In other words, Rehnquist in essence told Congress that it could not legislate more broadly than necessary. In doing its legislative work, Congress had to think of the full range of applications of the statute as against the states and not just a particular application. As Professor Vik Amar once astutely pointed out, since Congress could not tell the states that they had a duty to accommodate the disabled in a public hockey rink as well as a state courthouse, the ADA, which had language that could cover both, was facially unconstitutional, even if in Lane it was properly applied to the denial of courthouse access. Note, however, how using the "facial/as applied" distinction in this way stands the general canon of constitutional interpretation that facial challenges are the most difficult to mount on its head. Rehnquist was effectively seeking to use that facial characterization to limit congressional power more easily, not to be more deferential to it.
It is sometimes said that the jurisprudence of John Roberts is a mere continuation of the Rehnquist era. There is some truth to that. But a closer examination of how the two chiefs employ the "facial/as applied" distinction differently—with Roberts setting a narrow compass of judicial activity and Rehnquist pursuing a more aggressive, less deferential judicial role—undermines that assertion.
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90 percent of white voters in Chicago, including ward bosses, turned their back on the Democratic Party. The atmosphere of the city became divisive and hostile in ways that would be difficult to imagine ... a quarter century later.
... It became a campaign of slurs, accusations, charges and counter-charges, and a contest dominated by the issue of race. ...
I remember it well. The election took place while I was a student at Chicago's
Northwestern University School of Law, from which Washington had earned his J.D. in 1952, a time when, according to campus lore when I was there, the school was considered "progressive" for setting aside two seats in each class, one for a woman, one for an African-American. (Washington's set-aside sibling also proved her mettle:
Dawn Clark Netsch graduated magna cum laude, became a politician and Northwestern law professor, and, in 1994, became the fist woman to receive the Illinois gubernatorial nomination of a major party.) Although decades had passed, in 1983 the city remained splintered, a metropolis of ethnic enclaves circled by unseen but well-known walls. Isolation fed bitter, overt hostilities.
Emblematic of the ugliness of the 1983 campaign was a button that my relative saw worn openly on the floor of the Chicago Mercantile Exchange: Beneath the circle-with-slash that's the universal sign of "NO" was a green watermelon against a black background.
Washington's four years as mayor
—he
died from a heart attack in 1987—were landmark. The city fared as it had under other mayors. That fact of competence eroded Chicago's entrenched ugliness. And though Daley eventually did become mayor, his way of running things proved far more inclusive than that of his father.
Harold's breakthrough, moreover, inspired a generation
—not only this onetime lakefront law student, but also a man who came to the city in the '80s to
work with poor people. That man was
Barack Obama, now himself a member of Congress, now
taking his own bruising as he endeavors to repeat in the national arena what Harold achieved in Chicago.