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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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David and I agree that we would like constitutional rules that would facilitate political bargains between people with different political interests; as David puts it: "if you ensure voters are who they say they are, we'll let you register more of them." But there is little reason to believe that the decision in Crawford facilitates such political bargains. Indiana's voter ID laws were among the strictest in the nation without any corresponding investment in government programs that would have made it easier for disenfranchised persons to comply with the law's requirements. It's worth noting, as Justice Breyer points out in his dissent, that the Carter-Baker commission conditioned its acceptance of voter ID laws on the requirement that states also make it very easy to obtain photo ID's and that these ID's would be issued free of charge. Doing so would help ameliorate the predictable effect of these laws acting as the equivalent of a poll tax by other means.
If you want to create incentives to achieve the sort of reforms envisioned by the Carter-Baker commission, you wouldn't want minimal judicial scrutiny of the sort the Court adopts. Rather, you would want a more searching judicial scrutiny that asked whether the state compensated for the difficulties it imposed on particular groups by creating methods of ameliorating those difficulties. Knowing that harsh laws would be struck down unless ameliorating programs were put in place would give legislatures incentives to strike precisely the sort of bargain that David favors. In contrast, the form of scrutiny the Court adopts in Crawford gives legislatures few incentives to strike such a bargain, because majorities can adopt voter ID laws that disenfranchise a significant number of voters who would vote for the opposite party without fear that the courts will strike these laws down.
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continue reading at Balkinization . . .
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I'm just beginning to read through the opinions in today's decision upholding the facial validity of Indiana's voter-ID law. Along with many others, I have argued that the law is unconstitutional because it imposes burdens on voting without advancing any governmental interest. Thus, to my mind, the most noteworthy paragraph in Justice Stevens' lead opinion is the one in which he tries to adduce evidence of an actual problem that this law would address:
The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor—though perpetrated using absentee ballots and not in-person fraud—demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.
The third piece of evidence (Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor) is not really on point, as Justice Stevens more or less acknowledges, because it was "perpetrated using absentee ballots and not in-person fraud," and thus such a fraud scenario would be unaffected by the Indiana law. So what we are left with is (i) "flagrant examples of such fraud in other parts of the country [that] have been documented throughout this Nation’s history by respected historians and journalists" and (ii) "occasional examples [of such fraud that] have surfaced in recent years."
For the first proposition, what does the opinion cite? Only this: an anecdote about in-person voter impersonation allegedly orchestrated by Boss Tweed in 1868. And for the second—occasional "recent" examples? Justice Stevens tips his hat to the Brennan Center's showing that "much of" the evidence of such fraud "was actually absentee ballot fraud or voter registration fraud." Nevertheless, he states that "there remain scattered instances of in-person voter fraud." The evidence for this? That in the 2004 Washington gubernatorial election, a partial investigation confirmed that one voter committed in-person voting fraud.
So we have an anecdote about Boss Tweed and a single modern voter engaged in the sort of fraud at issue here. If that's the best case that can be made in favor of the law ...
[UPDATE: Much more—characteristically excellent—analysis from Rick Hasen here. On the issue I discuss above, and a terrific summary of the holding, Rick writes:
In a nutshell, the approach [of the governing plurality opinion] boils down to this: under the balancing approach of earlier cases (which the opinion says comes from cases such as Anderson and Burdick), a state needs to come forward with merely plausible non-discriminatory interests to justify an election law. The evidence need not be strong. Indeed, though Justice Stevens says that there is evidence of fraud to justify a voter identification requirement, the actual evidence he cites in the footnotes is incredibly thin—either reaching back to 1868 (footnote 11) or a single case of impersonation voter fraud found in a recent gubernatorial election in Washington state (fn. 12). Moreover, Justice Stevens says an interest in preserving voter confidence can justify such laws as well, ignoring undisputed evidence such laws are not at all likely to instill voter confidence (and could in fact do the opposite). Nor does it matter if the motivation in passing the law is completely partisan. The law is to be upheld unless "such considerations had provided the only justification for a photo identification requirement." So those with partisan motive need only find a nonpartisan pretext for such laws. Once the state has posited its neutral reasons for such a law, the law is to be upheld if it doesn't impose serious burdens on most voters. For those voters who do face serious burdens, they must bring an "as applied" challenge where they present specific evidence applied to them as to why the law is onerous. This channelling of election law cases into as applied challenges—part of a recent trend of the Court—is going to make it tough for a lot of plaintiffs who are burdened, and is in sharp contrast with the Court's approach in earlier cases, such as the Harper case striking down the poll tax for everyone, not just poor voters. The evidence in as-applied challenges must be specific and tested in litigation; as Justice Stevens says responding to Justice Souter's dissent: "Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication."
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I am disappointed by how cursory that [plurality] opinion was in its review of the state's interest in light of the highly partisan atmosphere of election administration, and I fear that, despite the Stevens-Kennedy-Roberts' opinion's best intentions, this opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections. It is a real disappointment from that perspective.
(Read more from Convictions contributors about the Supreme Court's voter ID decision.)
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