[This is a reply to Dahlia Lithwick's article on the oral arguments of the voting i.d. case that was heard yesterday. It has various useful links to other background articles.
Another good article can be found at The Nation, including the uncovered potentially greater problem of absentee voting, how the measures don't deal with those registered wrong at any rate (you have the id, even if you shouldn't vote anyway), how the particular law is particularly broad vis-a-vis others, etc.]
First, the lethal injection orals will be available to listen to on C-SPAN; check its website.
Linda Greenhouse's article on the oral argument had some telling details, in particular, highlighting the partisan elephant that (many of) the justices want to keep out of the room:
The Bush administration has raised Democrats’ suspicions by making “voter fraud” a priority for Justice Department enforcement. No prosecution for impersonating a registered voter, the type of fraud that would be prevented by a photo requirement, has ever been brought, however. “No one has been punished for this kind of fraud in living memory in this country,” Paul M. Smith, arguing for the Democrats, told the justices.
As the link to Talking Points Memo in Dahlia's article and the piece by Walter Dellinger and Sri Srinivasan in Slate noted, the "problem" here is hard to find. But, and this affected the not unconnected partisan firings of attorney generals, it is one the Bush Justice Department thought an important matter. Important enough in fact to get involved in this lawsuit, which seems not really their concern -- it is after all a state law, one comparable to one already struck down in Georgia.
The whole point of the facial challenge is to go out of your way to protect certain fundamental rights that are so important that holding them into abeyence since only some people are hurt by their violation is to much of a risk. This includes the 1/2 of 1% Justice Scalia sneered at,* which would amount of thousands of voters. If the "state interest" is so weak, the risk is that much more not worthy to take.
This includes adding to the cynicism of the people that those of another party simply do not play fair. This poisons the system in ways the go much further than burdening those without the appropriate picture ids. This makes Judge Posner's statement wrong:
In his opinion last year upholding the Indiana law, Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit agreed with the Democratic plaintiffs that the law would fall more heavily on Democrats than on Republicans. But that did not make the statute unconstitutional, he said.
It very well might, if your right to vote might be hindered (see Dellinger article; do we need to do more to discourage voting?) more depending on your party. This threatens freedom of association, while also affecting "indigent, elderly, and minority" (Dahlia's words) disproportionately. This raises 14th (liberty/equality), 15th (racial discrimination in voting) and 24th (poll tax) amendment concerns. BTW, I don't care how "brilliant" Paul Clement is ... if he furthers this sort of this, he is not worthy of my respect.
BTW, Dahlia spoke about how both sides had to "invent data," including when noting the side (shockingly, Democrats) against the law. But, he noted it was an estimate, and these figures are not simply invented. Again, see the Dellinger article:
In Georgia, which has a requirement similar to Indiana's, roughly 200,000 people who have no government-issued photo ID have registered to vote, and more than 60 percent of them voted in the last general election before a photo-ID requirement was imposed.
But, as with non-existent voter fraud problems, if you don't want to believe this, you can always ignore the evidence. Steven Colbert has reminded us of that fact. Various fray comments underline the point, eliding past absence of evidence since CJ Roberts-like it just must be out there. Sorta like WMDs or creation science. See also, Dellinger (contra CJ Roberts) on how much of a pain it would be to travel to show id to have the provisional ballots count. Justice Breyer argued:
Breyer’s notion was that the state could simply offer to give a photo ID to a voter who did not have one and could not afford to get one. “It is no big deal — just take a picture of them [when they register] and hand it to them. That would satisfy your anti-fraud concern, in a less restrictive way.”
Well, this doesn't help if you register by mail, does it? But, it does suggest that if you seriously burden (or there is a serious risk of it) the right to vote, especially when there is a serious risk of partisan sheenigans, the state should have the burden here. [Some point to the need to show id to enter governmental buildings. This law in particular arguably can be a problem there too and voting in particular is protected by the Constitution, even if the right to vote as such is harder to defend across the board.]
Id so important? Have state officials travel to those registered voters who don't have them ... many of whom very well might have to see government officials for other reasons. Now, some might argue there shouldn't be a need for id anyway. But, this is a more valid way to do it. Likewise, perhaps, require voters to have various types of non-picture id via a point system. Again, some might not like this either, but addresses "problem" in a potentially safer way.
BTW, election expert Rick Hasen makes a good neutral point that "as applied" challenges can be much more messy and divisive, making courts more intrusive around election time as well. There is, ala Ginsburg, a "horse out of the barn" problem too, of course.
Bottom line, there is enough evidence that the photo id regime will discriminate and threaten the fundamental right to vote, do so for partisan ends, and without much evidence apparent the risk and cynicism it will bring is worth it. Even a small amount of cost simply is not worth it.
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* “Why are we arguing about whether there is one-half of one percent of the electorate who may be adversely affected and as to whom it might be unconstitutional?”