Only the Perception of Truthiness

Slate's blog on legal issues.
April 28 2008 11:07 PM

Only the Perception of Truthiness

A few modest additions to the early word on voter ID.  First, for all those who would prefer to insist that Justice Stevens is easily pegged as a dyed-in-the-wool liberal, the Stevens-Roberts-Kennedy opinion in

Crawford v. Marion County Election Board

is Exhibit Q in a long list of decisions in which Stevens, for reasons entirely his own, votes against the liberal line.  (His passionate dissent in

Texas v. Johnson

, in which the majority rejected on First Amendment grounds a Texas anti-flag burning law, is another one that leaps quickly to mind.) The great Justice Stevens is many things, but predictably "liberal" is not one of them.


Second, on Marty's discussion of the paucity of evidence of fraud - Marty is of course right the evidence that fraud has been an actual problem is thin indeed.  But I read Stevens' opinion to say that addressing actual fraud isn't the sine qua non of legitimate state interests.  Rather, a state measure that promotes the perception of election fairness - whether or not fairness is actually a problem (even in a truthiness sense ), or whether the measure will do anything to help the putative problem itself - is an interest itself sufficient to survive facial challenge (assuming the burdens on voters are not too great). That's the upshot of the lengthy passage from the Carter-Baker Federal Election Reform Commission findings Stevens quotes: "The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important."  And it's of course the import of the separate section the Stevens opinion devotes to the state's interest in "safeguarding voter confidence."  Especially given the hit voter confidence has taken in the post- Bush v. Gore world, I admit I can't see anything wrong with acknowledging this as a legitimate state interest.

As for the burden side of the equation - how much of a burden is an ID requirement? - Stevens, relying heavily on the district court's finding of fact, concluded that he just didn't see the evidence of the statute's generally burdensome nature (although burdensome in specific cases, absolutely possible).  So given a legitimate state interest and the possibility that remains of proving the law too burdensome in the next case down the road, I'm not sure Stevens was actually that far out on a limb here.

Finally, having registered to vote for the first time as a resident of Indiana (I attended a fine public high school just outside Marion County), and being asked upon registration to repeat twice (in all friendliness and sincerity) which non-Republican party I wished to associate myself with ("You want to register with what party?"), a word on Indiana politics.  The Republicans are conservative.  The Democrats are conservative.  The difference between them is, conservatively speaking, negligible on a great many matters of state concern.  Now it could well be that things have changed a lot in the past, um, number of years since I registered to vote.  But I wouldn't put much stock on the view that the outcome of this particular case is likely to rock the Indiana political landscape anytime soon.  For that matter, I'm not entirely sure how much a splintered Supreme Court opinion leaving open a host of other possible challenges to such laws does to change anything either - other than to launch a new wave of litigation that should keep us here at Slate occupied well beyond election day.



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