Supreme Court approves Republican voter ID scheme
When Indiana passed a voter I.D. law, it was ostensibly to protect the integrity of the voting process. What better way to prevent voter fraud than to require those participating in an election to produce identification?
Was there any evidence of a voter-fraud scourge in Indiana? No. Would the law make it harder for “certain kinds” of voters (i.e., the elderly, minorities, and the poor) to participate? Yes. Did this look a whole lot like Republican lawmakers trying to discourage likely Democratic voters from taking part in elections? You betcha.
But that didn’t stop the Supreme Court today from approving the Indiana law.
The Supreme Court ruled Monday that states can require voters to produce photo identification without violating their constitutional rights, validating Republican-inspired voter ID laws.
In a splintered 6-3 ruling, the court upheld Indiana’s strict photo ID requirement, which Democrats and civil rights groups said would deter poor, older and minority voters from casting ballots. Its backers said it was needed to prevent fraud. […]
The law “is amply justified by the valid interest in protecting ‘the integrity and reliability of the electoral process,’” Justice John Paul Stevens said in an opinion that was joined by Chief Justice John Roberts and Anthony Kennedy. Stevens was a dissenter in Bush v. Gore in 2000.
Justices Samuel Alito, Antonin Scalia and Clarence Thomas also agreed with the outcome, but wrote separately. Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter dissented, just as they did in 2000.
The ruling is most disappointing. As Josh Marshall explained last year, “Remember, the point of voter ID laws is not to eliminate fraud; it is to eliminate Democratic voters.”
Indiana’s law is part of a national strategy that Republicans hatched a few years ago. GOP policy makers have pushed these schemes without any evidence of actual fraud, but it’s very little effort (passing a state law) with the potential for big rewards (winning elections by disenfranchising voters more likely to support the other party).
“The alleged ill that this is out to correct doesn’t really exist,” said Justin Levitt, counsel for the Brennan Center for Justice at the NYU School of Law, which filed a brief arguing against the law.
Indeed, when researchers took a closer look at the Indiana law, they found:
* 21.8% of black Indiana voters do not have access to a valid photo ID (compared to 15.8% of white Indiana voters — a 6 point gap).
* When non-registered eligible voter responses are included - the gap widens. 28.3% of eligible black voters in the State of Indiana to not have valid photo ID (compared to 16.8% of eligible voting age white Indiana residents - a gap of 11.5 percent).
* The study found what it termed “a curvilinear pattern (similar to an upside down U-curve)” in the relationship between age and access to valid ID - younger voters and older voters were both less likely to have valid ID compared to voters in the middle categories. 22% of voters 18-34 did not have ID, nor did 19.4% over the age of 70. (compared to 16.2% of Indiana voters age 35-54 without valid ID and 14.1% for 55-69 year olds).
* 21% of Indiana registered voters with only a high school diploma did not have valid ID (compared to 11.5% of Indiana voters who have completed college - a gap of 9.5%).
* Those with valid ID are much more likely to be Republicans than those who do not have valid ID. Among registered voters with proper ID, 41.6% are registered Republicans, 32.5% are Democrats.
Kevin Drum, whose post on this issue last year included some very helpful charts, adds, “[T]his is probably just a coincidence. I’m sure Karl Rove and the RNC had no idea that the demographics broke down like this. Right?”
Heaven forbid. Republicans had a choice — try to win elections the old fashioned way (by earning the support of voters), or try to shave a few percentage points off the likely vote totals of the other side. They seem to prefer the latter, even if it means proposing a solution to a problem that doesn’t exit.
And today, the Supreme Court not only approved one state’s measure on this, the court majority gave a green light to other states to do the same thing.
Update: Just to drive home the point that the problem the law seeks to address doesn’t exist: “The only examples Stevens can cite in the footnotes are a colorful description of Boss Tweed paying people to vote multiple times in the election of 1868, and an instance of one individual committing in-person voter fraud in Washington state in 2004. The third example (from the 2003 East Chicago race) isn’t even relevant, as Stevens concedes, since it’s a kind of voter fraud not addressed by the Indiana statute. It’s pretty clear that Indiana’s law would be constitutional if it advanced some governmental interest — but should it really be permissible for Indiana to impose a substantial burden on citizens who lack photo identification in order to prevent a type of voter fraud perpetrated by Boss Tweed 140 years ago?”
I hate to say it but why should a law be unconstitutional if there is no evidence of fraud?
My polling place is a two minute walk from my house. Would it be an inconvenience to me if they moved it to be a 4 minute walk from my house? Some inconveniences ARE constitutional. Don’t forget that the original intent was for each state to determine how much land you needed to own in order to vote.
Congress and the individual states can pass stupid laws. It is not up to the US Supreme Court to invalidate stupid laws. It is up to the legislature not to pass them to begin with.
Of course the next thing they will do is push out information that says if you vote with an outdated photo ID you are liable to prosecution. The demographic they are trying to disenfranchise move more often than average and therefore have a higher incidence of incorrect information on their IDs.
Maybe the Democrats and the Obamaites can add photo IDs to their To Do list, along with registering people to vote…This surely is not rocket science…
I agree with Neil, and more to the point, I find it very difficult to really care about this. It’s highly misleading to say that any portion of the Indiana electorate lacks access to a valid photo ID; as the Supreme Court opinion notes, the necessary ID cards are available for free to anyone who shows up at the Indiana DMV with a birth certificate. Moreover, even voters who lack a valid ID card can have their votes counted simply by casting a provisional ballot and then submitting an affidavit attesting to their eligibility. So whether this is all some Rovian scheme to disenfranchise underprivileged voters or not, quite frankly, any voter who can’t manage to meet the minimum requirements imposed by this law probably deserves to be disinfranchised. And the idea that it’s somehow unconstitutional to impose minimum criteria for reliability in elections even in the absence of a demonstrable problem with voter fraud is just silly. States are permitted to enact reasonable regulations to prevent foreseeable problems even if those problems have not yet manifested themselves, and this regulation is eminently reasonable.
neil wilson,
Some inconveniences ARE constitutional…Congress and the individual states can pass stupid laws. It is not up to the US Supreme Court to invalidate stupid laws.
Absolutely right. And poll taxes and literacy tests are great examples of this. if States want to pass stupid laws like those of the grand ole Jim Crow era, why then that’s just dandy. Right?
Wrong. This is legislated disenfranchisement. Pure and simply. What if an elderly voter who can barely afford food, much less neccessary medicine, can’t afford the transportation cost and fees for the “valid voter ID”? too bad, so sad? Surely, that was not the founders vision for a participatory democracy.
JRD,
the necessary ID cards are available for free to anyone who shows up at the Indiana DMV with a birth certificate.
And if that voter is 85 and their birth ceriticate was destroyed due to lousy document handling techniques in the 1940s, then what? No problems there right?
Moreover, even voters who lack a valid ID card can have their votes counted simply by casting a provisional ballot and then submitting an affidavit attesting to their eligibility.
If it so simple to circumvent the law, then what’s the point of passing it? You mean I need an ID to vote, unless I don’t have an ID. Then I can vote and just simply state that I am who I am? Sounds pretty lame to me? Why not just call it the voter attestion act, and be done with it. No need for some lame ID, every voter just says “yep, I’m who I am; can I vote now?”
Who says the Supreme Court is not politicized
What can you say when the dems go along with it. In MO you have to show a birth certificate to get a DL and that DL now has a tracking strip on the back of it. Voter fraud doesn’t exist but election fraud has been demonstrated in several states. We still don’t know the Florida vote count, or what happened in Ohio. The vote record has been “closed” in Alabama when the governorship was stolen in spite of clear indications of fraud and theft. The republicans have stolen the DoJ, the SC justices lied to get approved by congress, the voting process has been privatized by corporate voting machines (the only country in the world using these machines to count votes is America) and now insisting that the elderly and the poor must get picture IDs at their own expense to vote only months before the election…yeah, the republicans really believe in democracy don’t they? And the dems go right along with it. Next come the tests to qualify voter’s ability to understand the issues and a $50 voting fee. Welcome to the USA corporation.
Edo,
And if that voter is 85 and their birth ceriticate was destroyed due to lousy document handling techniques in the 1940s, then what? No problems there right?
If you were paying attention to your own argument, and/or had read the Supreme Court’s opinion before announcing your criticism of it, you’d see that this problem is dealt with. While acknowledging the problems that might be faced by elderly voters in the situation you describe, the Court noted:
“The severity of that burden is, of course, mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted. To do so, however, they must travel to the circuit court clerk’s office within 10 days to execute the required affidavit. It is unlikely that such a requirement would pose a constitutional problem unless it is wholly unjustified. And even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek in this litigation.”
2008 WL 1418103, at *9 (footnote omitted).
As for the rest of your post, are you saying that my description of the law is inaccurate, or is their some other point to your apparent attempt at sarcasm?
Democrat president. Democrat congress. 13-justice court.
Those with valid ID are much more likely to be Republicans than those who do not have valid ID. Among registered voters with proper ID, 41.6% are registered Republicans, 32.5% are Democrats.
I don’t get this part, since Indiana voters do not declare party affiliation, except when asking for a primary ballot. Perhaps the 41.6% and 32.5% merely reflects the number of voters who chose a Rep vs Dem ballot in previous primaries.
Racer X (2): Of course the next thing they will do is push out information that says if you vote with an outdated photo ID you are liable to prosecution.
Actually the next thing is they won’t let you vote if your address is not current. That is essentially what they are doing when they “cage”.
JRD - Would you vote if you had to travel to the court clerk’s office to sign an affidavit every time? And all to stop fraud that doesn’t seem to be happening? Perhaps you would, but if even one person avoids voting because of this inconvenience, then we’ve disenfranchised them. Voting is a right, not a priviledge.
We already have too few people voting in this country. I fail to see why we need to make it even more difficult. I don’t understand why everyone doesn’t have photo ID, but think that making someone sign an affidavit with the county clerk is too much of a burden. Why do they have to go there? Why can’t they just sign an affidavit at their polling place? This is yet another hoop for people to jump through in order to make it more difficult for them to vote.
Surely, that was not the founders vision for a participatory democracy. -Edo
Something about land owning white men comes to mind.
We needn’t rely on the founders to make this case: it’s not our vision of a participatory democracy.
To do so, however, they must travel to the circuit court clerk’s office within 10 days to execute the required affidavit. -JRD
Oh, that’s all? Why that sounds super easy to do, especially for someone who has already had trouble attaining a photo ID.
Bah. A photo ID is not necessary to be a citizen of the United States. Until it is, lack of it should not be a valid reason for denying someone one of the rights that citizenship grants.
What happened to all of the strict constructionist/original intent/keep it like the 1790’s crowd? Not a single one of our founding fathers had a government issued photo ID.
BTW…I just turned 58 and I never thought I would be forced to carry a tracking device in my wallet by the government in this lifetime. I’m forced to get a picture ID but a DL or a state ID card both have a tracking strip on the back and I must have one or the other to vote. It is not just about disenfranchising voters…it is also about increasing government surveillance of it’s citizens. You basically cannot buy, sell or trade or vote or drive or be out after curfew without this ID so the only way to avoid carrying a tracking device is to no longer be apart of our society….and there is no place left to hide. One by one our freedoms are being removed and our own representatives are making us powerless to do anything to prevent it. So welcome to the USA corporation brought to you by the RNC.
Doctor Biobrain et al.,
You are watering down the term “disenfranchisement” to the point of absurdity. Think about it this way– some degree of effort is already required of prospective voters. They have to leave their homes, travel to a polling place, probably stand in line for a while, and cast a vote. For some people this is a genuine physical impossibility, for medical reasons or otherwise. And it is conceivably possible to eliminate those difficulties– a system of online voting from home or work could conceivably be set up so that no one would ever have to stand in line in a polling place again. Yet we don’t do that; are we “disenfranchising” all those prospective voters? Of course we’re not. The group of people who will be inconvenienced by this to the point at which they will be unable to vote is miniscule; as Justice Stevens acknowledged, it might not be zero, but the constitutionality of a regulation of general applicability does not turn on the convenience of one or two outliers. Note also that Stevens’s opinion rejects a facial challenge to the validity of the Indiana law; he leaves open the possibility of an as-applied challenge. In other words, if an individual voter can demonstrate that he or she is actually in a position in which the application of this law will effectively prevent the exercise of his or her right to vote, as opposed to requiring a marginal amount of effort to exercise that right, then some degree of accommodation from the state might be constitutionally required. But if such a group of voters exist, we’re talking about a very small fraction of one percent of the electorate, and it is frankly ridiculous to invalidate an otherwise reasonable regulation on the basis of some conceivable but hardly demonstrated hurdle that it might place in the way of some miniscule segment of the population.
If voter fraud were a significant problem, then the obstacles this law puts up to voting would be perfectly reasonable. Certainly it’s acceptable to lose a few legitimate votes (that could still be cast if the voter was sufficiently motivated) if you avoid massive, widespread fraud used to steal elections.
But that isn’t the case. Voter fraud essentially doesn’t happen. Like, pretty much at all. All these people trying to make it harder to vote keep complaining and complaining, but they can never come up with more than a scattered few cases, most of which don’t even turn out to be substantiated.
That’s what I object to. It raises the hurdles to voting substantially, while “solving” a “problem” that simply doesn’t exist.
Constitutional? Probably? Justifiable? Certainly not
This is courtesy of the same Legislature that once tried to legislate the axioms that define pi (no, they didn’t try to dictate pi =3. It was much worse than that. Look it up).
Different year, but these are their intellectual successors. If ever there was a case to be made for elected officials to pass an intelligence test before being slated, Indiana is the place to make it.
I register voters. I tromp around in low income housing and help people register for the first time or update their registrations. Many of these people suffer from some serious misconceptions about their right to vote (don’t get me started on the state of education in the State of Indiana), including fears that their vote will be tracked according to their ID and they will be punished for ‘voting wrong’.
Convince me that their franchise is being protected by this law.
“The group of people who will be inconvenienced by this to the point at which they will be unable to vote is miniscule;”
Isn’t the Constitution supposed to protect the voting rights of even the “miniscule” groups of people?
JRD - While I agree that there is always SOME amount of inconvenience with voting, how is it “reasonable” to create a hurdle that we don’t need? And showing up at a polling place, which will tend to be fairly close to one’s home, is entirely different from forcing them to go to the court clerk’s office to sign an affidavit. Is there some reason why the affidavit can’t be signed at the polling place, other than to inconvenience people? It’s as if we’re making these people vote twice to get their vote to count, with the second vote being much more inconvenient than the first.
And the big point here is: Why are we inconveniencing any citizens to solve a problem that doesn’t exist? Sure, it’s likely that this only affects a very small number of people, but it’s to solve a problem that affects zero elections. And it’s our contention that the purpose of this law is to explicitly stop these people from voting. Why else would they create a law that wasn’t needed?
2Manchu,
Not in the context of a facial attack. Again, Justice Stevens left the door open to an as-applied challenge if there’s an actual voter out there who will literally be unable to vote, as opposed to mildly inconvenienced, by the application of this law. That’s clear in my previous post, so how about not quoting me out of context in the future?
And it is conceivably possible to eliminate those difficulties– a system of online voting from home or work… -JRD
Like an absentee ballot? What a great idea!
See Oregon. They do it up right.
You fail to address the broader point. A citizen of the United States is guaranteed the right to vote. A citizen of the United States is not required to have a photo ID to be a citizen. How can you limit a right granted by citizenship through something not required to be a citizen?
You’re naive if you think the election judges will be forthright about provisional ballots and what is required to execute them properly. No, people will simply be turned away because it’s not the election judges responsibility to educate people of the law. But they have the ability to deny people away who don’t have a valid picture ID (at their discretion, I might add…who’s watching them?).
I also think you fail to appreciate joey’s point about a improper invasion of our privacy. I can swallow that invasion when it allows me a privilege, like driving. But not when it allows me a right.
I can vote because I am a citizen of the United States. Nothing can take that right away from me as long as I am a citizen, no matter what Scalia and his ilk say.
PS - JRD: paragraphs. They are your friend. Embrace them.
And the big point here is: Why are we inconveniencing any citizens to solve a problem that doesn’t exist?
That seems to be the core of your objection here, and I don’t disagree with it; I just don’t think it’s relevant to the constitutional analysis. It makes no sense to me that states should need to provide empirical studies demonstrating a quantifiable problem prior to enacting reasonable regulations against foreseeable abuses pursuant to their police power, even where the exercise of constitutional rights are involved. The Democratic establishment may well be right that the proffered justification for this law was nothing more than a sham and the real purpose was to shave a few percentage points off of the Democratic margin in future elections, the fact remains that some kind of identification requirement prior to voting is a pretty reasonable means of ensuring the integrity of the electoral process. As others have noted, the cure for this problem is with the legislature, not the Supreme Court. Not every ill-advised or unnecessary law is unconstitutional.
Pi equal the root of 10 according to a bill that was introduced in the Indiana State Legislature.
The Bible says that P equals 3.
The problem still remains that the legislature can pass stupid laws and it shouldn’t be up to the courts to overrule them.
Look at what McCain, Bush and the publicans are doing about the Ledbetter (sp?) case!!! The law was poorly worded and creates absurd rules but the publicans don’t want it changed.
The solution is not to change the Supreme Court, although that would be a good thing, the solution is to change the makeup of the legistature
Not in the context of a facial attack. -JRD
There are a couple problems with this:
1. The likelihood that someone who has had trouble obtaining a valid photo ID will ever issue the challenge is low for so many reasons: fear, money, time, ignorance of the law.
2. Should a challenge ever come, it will be too late. Even one election outcome affected by this law is too many.
3. Residual effects of being denied the right to vote once may stop someone from voting forever. That’s the opposite of what we should be trying to do.
Not every ill-advised or unnecessary law is unconstitutional.
Of course not, but every law written with the intent of preventing people from voting should be unconstitutional. And that’s the intent of this law. This isn’t about ensuring the integrity of the electoral process, as the integrity isn’t in doubt. This is about making it so difficult for certain types of voters to vote that they don’t bother. But you’d rather wait until someone actually loses their ability vote and then make them take their case all the way to the Supreme Court before we can decide if it happened. But again, the whole point of the law is that this will happen. Why can’t the Court decide now whether that will happen?
And have you wondered yet why going to the court clerk to sign the affidavit is necessary? What’s magical about signing the affidavit there? Why can’t they sign it at the polling place when they vote?
A citizen of the United States is guaranteed the right to vote. A citizen of the United States is not required to have a photo ID to be a citizen. How can you limit a right granted by citizenship through something not required to be a citizen?
That is absurd. All constitutional rights are subject to reasonable regulation by the state. The right to free speech may be curtailed by content-neutral time, place, or manner restrictions– e.g., you can’t stand on a street corner with a megaphone at 3 A.M., no matter what you’re saying. I certainly see a lot of people on this site arguing that the Second Amendment should be so heavily regulated as to be virtually read out of the Constitution. The Fourth Amendment right against warrantless search and seizure is subject, among other things, to the exigent circumstances doctrine. And so on. The fact that a right is guaranteed by the Constitution does not mean, and has never meant, that the state is prohibited from imposing reasonable restrictions on the exercise of that right.
I find interesting, that noone mentions that in Indiana, the DMV is a Republican patronage sink.
It’s where the state’s Republican big shots, find no-show jobs for their n’er-do-well/black-sheep cousins, and no-bid contracts for their friends.
if you happen to see, a car with an an Indiana plate in the low hundreds, or less, it’s almost certainly a State Republican big-cheese. (you’ll also never see such a car pulled over for a ticket.)
and this is the joint responsible for Indiana Voter ID? cough. (tell me how well you think that will work out …?)
JRD,
…are you saying that my description of the law is inaccurate, or is their some other point…
As others have pointed out, while your description may be accurate, the point is why have a voter ID law, if you can just sign an affidavit and thus not need ID? Why bother? Oh, right. Because its a bother. And if that helps to keep people from not voting, and those people will vote in larger numbers for the “wrong” candidates, then that “bother” is fine fine just fine.
let’s recap:
Indiana’s GOP dominated legislature is worried about losing their dominance at the polling place.
They decide that peple voting without a state-approved photo id is a problem.
So, they pass a law that “solves” this problem despite the fact that they can’t show a single case where it is a problem.
However, the law itself contains a proviso that in effect says “for some extra hassle to you, you don’t have to have a photo id”
So, i need to have a photo ID to prevent fraud, except if I’m willing to endure even more hassles, in which case I don’t have to have a photo ID.
In sum, Indiana’s GOP dominated government says: “you need a photo id to vote unless you don’t have one in which case you don’t need one.”
Great solution to a non-problem there. And the GOP claims its the Democratic Party that believes in too much government interference. what a crock.
Well, I don’t consider any group or individual that could face the potential of being denied the right to vote, or have to jump through hurdles to get their vote to count, as being “miniscule”.
Government should be making it easier for the electorate to vote, either by providing better access to polling places, or mail in ballots, or access to voting on the Internet.
What it shouldn’t be doing is saying it is legal for states to pass laws to make it more difficult for a certain percentage of the population, however “miniscule”, to exercise their right to vote.
Yes, they did leave it open for people to challenge this decision. But how many people who would be affected by it have the power to do so? How many years will pass before this issue is brought again to the court?
Sorry if I seem a bit passionate about this, but I like I said, America should help it’s people get their voices heard, not “protect” them against a non-existent threat.
That’s a reasonable principle, but it seems to me that delving into the “intent” of the legislature is a pretty tricky thing to do, particularly where the Court can rely on the objective reasonableness of the law to avoid it. Of course, courts are often forced to determine what the intent of the legislature in passing a given law was, but I don’t think you’re going to find anything in the records of the Indiana legislature in which anyone says that the purpose of the bill will be to prevent all those poor Democrats from going to the polls. That being the case, the Court was, I think rightly, quite reluctant to infer on the basis of innuendo and accusation that the law was passed for unseemly purposes, and simply held that, whatever the intention, a minor restriction on voting rights for the purpose of prohibiting a foreseeable, if not demonstrated, problem with the electoral process is not a violation of the Constitution.
JRD,
I’ll second Dr. Biobrain’s questions. Extra credit if your response can also include how this is substantially different, logically, from the Jim Crow era laws.
JRD,
but I don’t think you’re going to find anything in the records of the Indiana legislature in which anyone says that the purpose of the bill will be to prevent all those poor Democrats from going to the polls.
I may be too optimistic, but I doubt you can find examples in the records of every state legislature that passed Jim Crow era laws that says the intent of those laws was to prevent uppity blacks from voting. Somehow just because the legislators are clever enough not to be explicit about their goals, doesn’t mean those aren’t their goals.
Oops, I apparently neglected to close the italics in the last comment.
Edo,
Is it not obvious to you how the need to sign an affidavit attesting to one’s eligibility to vote would both: 1) permit the handful of voters who lack a valid ID and are unable to obtain one easily to continue to exercise their voting rights, while 2) deterring voter fraud, since a potential fraudster is less likely to be willing to show up at the county clerk’s office and falsely swear under oath that he or she is an eligible voter? If not, I’m not sure what else I can say. The affidavit provision is a reasonable effort to mitigate the hardship imposed on the small minority of legitimate voters who cannot obtain an ID while maintaining the effectiveness of the system. I really don’t see why that needed to be spelled out.
I may be too optimistic, but I doubt you can find examples in the records of every state legislature that passed Jim Crow era laws that says the intent of those laws was to prevent uppity blacks from voting.
No, you can’t. Which is why you look to the objective reasonableness of the law and the plausiblity of the justification offered– which is what the Court did in this case.
And have you wondered yet why going to the court clerk to sign the affidavit is necessary? What’s magical about signing the affidavit there? Why can’t they sign it at the polling place when they vote?
Well, for one thing, it’s not at all certain that every local polling place is going to have a notary on hand, as would be necessary for an affidavit. There’s also the fact that voter affidavits would be just one more thing that local poll workers– often relatively untrained volunteers, let’s recall– would have to keep track of during what is already a hectic day. There’s also the fact that centralizing the process might make it easier to detect fraud– if one person is showing up to sign three affidavits from three different polling districts, the person behind the desk at the county clerk’s office might detect that, whereas the local poll workers obviously would not. Those are just off the top of my head.
JRD,
If you can’t see the objective hardship associated with the elderly or down-trodden being asked to make two trips to two different places just so they can vote, *all to solve a problem that has not been shown to exist*, then I’m not sure what else I can say.
I think the GOP dominated state government in Indiana is being too cavalier with their citizen’s dignity. I think you are being equally cavalier in defending their actions. As 2Manchu eloquently put it:
“America should help it’s people get their voices heard, not “protect” them against a non-existent threat.”
Why do you disagree with this proposition?
JRD - But why can’t the affidavit be signed at the polling place? Why are they required to go somewhere else to do it? As I said before, it’s as if we’re making these people vote twice in order for their vote to count, with the second vote being far more inconvenient than the first.
I wouldn’t have a problem with these laws if merely signing an affidavit at the polling place was enough to ensure their idenitity. But the fact that they’re required to go somewhere else is a real problem. Can you explain why this is “reasonable”? But then again, I fail to see what’s so reasonable about creating a law to solve a problem that doesn’t exist, but which will deny people the ability to vote.
Edo,
I haven’t denied that a hardship would be involved, I’m only saying that hardship or inconvenience is not necessarily unconstitutional, for all of the reasons I’ve noted above. I do not find 2Manchu’s comment compelling for several reasons, all of which I’ve already discussed. States are allowed to impose reasonable restrictions even on the exercise of constitutionally-protected rights. They are also charged with ensuring the integrity of the electoral process– and this is the first time I’ve ever heard the argument made that proactive legislation against a foreseeable harm, even if that harm cannot be demonstrated to have yet occurred, is somehow improper. Finally, not every bad policy or unwise law automatically violates the Constitution. States are granted pretty broad latitude to regulate most aspects of life, including elections, and most of the time the appropriate remedy for bad legislation is to be found not in federal court but in the state legislature.
I wouldn’t have a problem with these laws if merely signing an affidavit at the polling place was enough to ensure their idenitity. But the fact that they’re required to go somewhere else is a real problem.
Is that really such an issue? I explained above several reasons why it might make more sense to require the voter to go to the county clerk’s office rather than sign the affidavit at the polling place, but I’m surprised that that’s the dispositive issue for you. It seems like a tangential point to me; obviously it’s something of an added inconvenience but do you really think there’s a single voter out there who is unable to obtain a valid ID, is able to go to the polling place to fill out a provisional ballot, and yet is unable to also travel to the county clerk’s office to submit an affidavit? That’s a pretty long string of contingencies before you run into a problem. And again, even if there is such a person out there, he or she still retains the option of bringing an as-applied challenge to the law that would compel the state to make some additional accomodation. But I have a pretty hard time imagining that there’s even a single voter in Indiana who meets all those criteria.
Am I the only one that is astonished to read that 21.8% of black Indiana voters do not have access to a valid photo ID. I mean, it is not that hard to get an ID. I wonder why they do not have one. Any ideas?
JRD - Oops, I see you responded to my point after I started following up on it.
All three of those reasons you gave were fairly weak. The notary one could be an issue, but could surely be gotten around. I’m sure we could trust poll workers to serve as witnesses. I’ve used notaries that looked like they were stoned and see nothing magical about these guys. If we trust someone to run a fair election, I think we can trust them to witness a signature.
As for the “hectic day” and “fraud” reasons, those are absurd. All we’d need to do is sign their name to a list; not that it would prove anything, as anyone can sign anything. How hard would that be? And as a reminder, to vote, people would still need voter registration cards. How do you imagine that these fraudsters are getting them for three different addresses? But of course, all this is a non-issue, because we don’t have any cases to show that any of this stuff is happening. So we’re greatly inconveniencing certain voters for no reason at all.
Would you be willing to vote if you had to go to the court clerk after every election? I wouldn’t. And who knows, perhaps the fraudsters are also working with fake photo ID’s. Perhaps it’s reasonable to require everyone to sign one of these affidavits. Would you call that law reasonable? Why not?
I certainly see a lot of people on this site arguing that the Second Amendment should be so heavily regulated as to be virtually read out of the Constitution. -JRD
There is a big difference between a ‘well regulated militia’ and the right to vote. I don’t remember any clause guaranteeing me my ‘well regulated right to vote,’ and if anyone ever did try to deny me that right, they just might run up against my temporarily insane interpretation of the second amendment.
Hell, since you brought it up, the second amendment was designed to prevent things like state sponsored disfranchisement. This is exactly the kind of issue we should take arms to defend.
The right to free speech may be curtailed by content-neutral time, place, or manner restrictions– e.g., you can’t stand on a street corner with a megaphone at 3 A.M., no matter what you’re saying. -JRD
You say I’m ridiculous and then you come at me with this elementary school argument? C’mon, you’ve got to do better here. To begin with, the regulations against loud noises in the middle of the night in public aren’t a restriction of free speech. You said it yourself. Those restriction are content irrelevant, thus are not a restriction of your free speech. You could be at home quietly waxing about the injustices of the government. No one is denying you your right to free speech anymore than anyone here is arguing that voting in your local polling place on election day is a denial of your right.
You can’t vote on on the street at 3 AM either and not a single person in here is arguing that you should be able to.
Extending your analogy, voting already has location and time restrictions. Are you suggesting it makes sense to require a photo ID for other rights? Should we have a valid photo ID to exercise our freedom of speech? No, sounds ridiculous, right? Of course it does, but that’s the logical extension of your schoolyard argument.
Show me the Constitutional support for allowing this sort of ‘regulation’ on voting? Isn’t the very definition of regulation to allow some and deny others? Thus isn’t any ‘regulation’ beyond logistical concerns (which are there to enable voting, not stop it), ultimately designed to deny someone the right to vote?
The fact that a right is guaranteed by the Constitution does not mean, and has never meant, that the state is prohibited from imposing reasonable restrictions on the exercise of that right. -JRD
Well, no shit. Which is why all of the sane people among us are arguing that these are unreasonable and will ultimately result in disfranchisement. The right, not privilege, to vote is the cornerstone of our society, and should be regulated minimally. This law oversteps. So forgive my passion when people start to intrude on it. There is a reason why I’m a former Indiana resident.
States are allowed to impose reasonable restrictions even on the exercise of constitutionally-protected rights.
Sure, and the Southern states believed their Jim Crow era laws to be completely reasonable–and a majority of their citizens agreed. if poll taxes and literacy requirements were a hardship for some of their citizens then that’s just fine and dandy to you, eh?
What’s your acid test for “reasonableness”? If it involves the thought process of Scalia or Thomas, I find it suspect. For example, I certainly don’t think asking a female collegue of mine in a business setting if a hair on my diet coke was her pubic hair is “reasonable”.
“Reasonableness” seems a pretty fuzzy concept upon which to decide whether or not a demonstrable hardship is acceptable to remedy a problem which does not exist.
Brandon,
I wonder why they do not have one. Any ideas?
Ever heard of the phrase “driving while black?” Ever think that community may have some historical reasons to distrust local governments? How about if they are 70+ years old. Think they may have some memories of government sanctioned violence against them?
Ever consider they might have (this is for you JRD) reasonable concerns that the local and state governments may use their state IDs for punitive measures? Hmm…like for getting warrants from “friendly” judges to invade their home based on nothing other than their address (i.e. they live in an area “known” to be a hotbed of illegal activities). If you think this is hyperbole, I suggest you do just a wee bit of reading on the civil rights era.
I can’t believe they didn’t have a requirement for valid ID before now! This has been the case in FL since before I registered to vote in 2000.
If they can’t verify who you are, how do they know if you are who you say you are?
This does not appear to be “going after democrats” or “blacks” or any other group, and if there are other states where they don’t require ID’s to vote, they need to do this as well!
Doubtful,
Your passion aside, I’m going to give your post all the attention that it deserves, which is to say that you completely misunderstood, or at least misrepresented, everything I said. Go re-read and get back to me.
As for the “hectic day” and “fraud” reasons, those are absurd. All we’d need to do is sign their name to a list; not that it would prove anything, as anyone can sign anything. How hard would that be? And as a reminder, to vote, people would still need voter registration cards. How do you imagine that these fraudsters are getting them for three different addresses? But of course, all this is a non-issue, because we don’t have any cases to show that any of this stuff is happening. So we’re greatly inconveniencing certain voters for no reason at all.
I have a hard time understanding what you’re saying here. First of all, signing an affidavit is not just signing a name to a list; it’s a sworn statement, notarized and subject to the penalties of perjury, that the statements made therein are true. As to the voter registration card, I do not know for sure but I don’t think that a registration card is a requirement in Indiana. It is not required in my state of New York, and the Supreme Court’s decision in Crawford refers to the fact that “other States provide free voter registration cards,” which suggests to me that Indiana does not provide voter registration cards. There is no mention of such a requirement in the opinion, in any case. Moreover, your argument seems rather question-begging, in that it assumes that procedures enacted to deter voter fraud are unreasonable because voter fraud is not a problem. Again, maybe it isn’t, but I don’t think that fact has any bearing on the state’s constitutional authority to take proactive steps to maintain the integrity of the system. That seems to be the principal point of contention here, but is it ever the case that the state wait until some foreseeable harm has been actually suffered before it can take steps to prevent it?
This isn’t about disenfranchisement directly, but about voter intimidation and inconvenience. In the 2004 election the local GOP organization had people at the polls whose only job was to challenge anybody they thought they could prevent from voting. These goons were only placed in predominantly Democratic districts, not in the GOP ones.
The whole point was not to prevent people from voting, but to make it more difficult, because, if you make it more difficult, make the lines longer, some people will have to get back to work, or pick up the kids, or get to class. Similarly, if you make voting an unpleasant experience for someone by confronting them with an accusation, you may prevent them from exercising their right.
They proved this strategy in Ohio in 2004, and now they’ll spread it to Indiana. In Florida, they simply de-registered people with names likely to be voting Democratic. The whole purpose of these laws is simply to make it harder for people to exercise their rights.
How does that make this democracy we live in work better?
What’s your acid test for “reasonableness”? If it involves the thought process of Scalia or Thomas, I find it suspect. For example, I certainly don’t think asking a female collegue of mine in a business setting if a hair on my diet coke was her pubic hair is “reasonable”.
Without looking back to CB’s post, tell me who wrote the Crawford opinion.
I can’t believe they didn’t have a requirement for valid ID before now! This has been the case in FL since before I registered to vote in 2000. -Greg
Oh, do tell why Florida should be the election model for the country? They’ve done such a bang up job of it for the past several cycles.
I’m going to give your post all the attention that it deserves…Go re-read and get back to me. -JRD
I’ll assume since you cannot formulate a decent response that I have won the argument. I accept your capitulation.
I didn’t misunderstand you. You wrote a invalid argument. It won’t help if I reread it. It’s still invalid.
Analogies are the recourse of the arrogant, to begin with. You said that disturbing the peace was analogous to restricting free speech. It’s not, as I explained, so you start your absurd analogy from a false assumption.
I merely accepted your false assumption and granted that time and place restrictions on the exercise of our rights was acceptable (and as I point out, a logistics matter when voting is concerned - it helps, not hinders, participation).
All rights are subject to regulation by the state, but not all rights are subject to merely reasonable regulation by the state.
Laws abridging those rights of the very essence of a scheme of ordered liberty (Palko) are, or were till the rise of moder results-oriented jurisprudence (Bush v. Gore), subject to a more restrictive test, strict scrutiny.
If there’s a right more of the essence of a scheme of ordered liberty than voting, I’d like to know what it is. What happened to strict scrutiny?
*Is there a compelling state interest?
*Is the measure narrowly tailored to address only the harm?
*Is this the least restrictive means to address the harm?
It was my understanding that if you don’t clear hurdle #1, you don’t even get to propose the measure.
And the showing of a compelling state interest in this case is very, very thin.
From Stevens’ opinion:
Davis X. Machina,
Perhaps a case could be made for applying a strict scrutiny standard to purported violations of the Equal Protection Clause involving voting rights, but it seems that has never been done. As Justice Stevens’s opinion explains, the test in the case of voting rights is somewhat different: “under the standard applied in Harper, even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications.” 2008 WL 1848103, at *5 (citing Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)).* Harper, incidentally, was a poll tax case, yet the Court managed to find the imposition of a $1.50 tax unconstitutional under the more deferential test applied there. Applying that test to this case, however, the Court finds (I think plausibly) that the ability to produce some form of reliable identification is related to voter qualifications. The fact that this case might have come out differently had strict scrutiny been applied doesn’t mean much in light of the fact that that standard has apparently never been applicable to voting-rights cases.
* Footnote 8 of Justice Stevens’s opinion notes that the Court has expressly rejected the application of strict scrutiny to voting regulations.
Applying that test to this case, however, the Court finds (I think plausibly) that the ability to produce some form of reliable identification is related to voter qualifications. -JRD
Since you find it plausible, enumerate for us, if you will, the qualifications for being a voter?
As a matter of constitutional law, the problem in much of the debate above turns on the question of intent.
Of course an intent to disenfranchise should be unconstitutional, and of course there was an improper intent here, but the Supreme Court has fairly consistently ruled that it will not look to intent on a facial challenge but rather will look at the language of the law. It seems to me that the Justices are checking their common sense at the door, but it would be a fairly major change in precedent at this point for them to analyze the subjective intent of those passing a law.
Of course an intent to disenfranchise should be unconstitutional, and of course there was an improper intent here, but the Supreme Court has fairly consistently ruled that it will not look to intent on a facial challenge but rather will look at the language of the law. It seems to me that the Justices are checking their common sense at the door, but it would be a fairly major change in precedent at this point for them to analyze the subjective intent of those passing a law.
I agree with this, but would go one step further and say that this is the right approach. The bad intent here may be “obvious,” but how do you prove it? And more to the point, do we want the Supreme Court to go around lightly overruling state laws based on its own determination that the state legislature’s stated purpose in passing the law was a sham? This has happened on occasion in the past, see, e.g., Edwards v. Aguillard, but it should remain a rare exception, and in the circumstances of this case I think the Court resolved the matter appropriately.
JRD, I probably lean your way on this one, but I was much more troubled when they upheld the mid-decade redistricting which was an even more obvious Republican ploy to slant the political playing field and had an even more tenuous basis. Yet in that case you get the Court saying emphatically that they are not going to get into the review of motives, particularly in political cases (where many here may think it most warranted because the court is the only nominally neutral entity). And by failing to look to motive, the Republicans were granted a major electoral advantage that is hard to remedy through political processes alone. So I am perhaps of more mixed feelings than you about how willfully ignorant the court should choose to be about motives. Although I agree — particularly in the typical 100+ member legislative body — that assigning motives is more than a little tricky. But tough calls is why justices get the big bucks. and the robes.
Without looking back to CB’s post, tell me who wrote the Crawford opinion.
yeah yeah, Stevens along with Chief Justice roberts. my question remains.
yeah yeah, Stevens along with Chief Justice roberts. my question remains. -Edo
If you make a point JRD can’t refute or ask a question JRD can’t answer, prepare to be ignored. Comment 47 and 49 fully support this.
Edo,
What question? What counts as “reasonable”? Have you read the Crawford opinion? I don’t know what to tell you except that I agree with Justice Stevens’s analysis. The ability to proffer some form of valid identification is sufficiently closely related to a voter’s qualification that the state is within its constitutional authority in imposing an ID requirement. I’ve already said this, so I’m not sure what more you want.
What question? -JRD
To which JRD answers that providing a valid photo ID is ‘The ability to proffer some form of valid identification is sufficiently closely related to a voter’s qualification that the state is within its constitutional authority in imposing an ID requirement,’ to which I asked, what are the qualifications to be a voter?
Additionally, it’s not just a valid ID requirement. It’s a valid photo ID at the polling place. Isn’t the issue of a voter’s identification and residence already taken care of during registration?
Beyond citizenship and registration, please, someone enlighten me, what are a voter’s qualifications and how does possessing a valid photo ID closely relate to them? Do we have to have a photo ID to be a citizen? Do we have to have a photo ID to register to vote?
Just out of curiosity, what would be required to influence an election using the kind of voter fraud that this Indiana law is supposedly trying to prevent?
What scenario is this law trying to avert?
Just out of curiosity, what would be required to influence an election using the kind of voter fraud that this Indiana law is supposedly trying to prevent? -2Manchu
Well, I think it’ll go down something like this:
White guy, here’s your ballot. Black guy, Hispanic guy, let’s see some ID. Sorry, there’s a problem with your ID, you can’t vote today. Next!
Obviously, it’s trying to cut down on the fraud where minorities think they have some sort of say in our shamocracy.
Look, virtually all states except Iowa have taken away your vote for Congress.
How many congressional districts are gerrymandered?
I live in a district where the publican can’t lose. I used to live in a district where the Democrat can’t lose.
I used to live in Iowa where they have fair districts. The problem with Iowa is that the state doesn’t get the seniority it deserves.
Of course, if it weren’t for gerrymandering the Democrats would have about 300 seats in the House right now.
Gerrymandering is why we have so many far right Republicans and far left Democrats.
So Indiana publicans decide they want to take away the right to vote from some people so that more publicans get elected. Gerrymandering does the exact same thing.
This is a case of lies, damn lies, and statistics. 75% of Indiana is over 18, meaning they can vote. That’s 4.7 million people. 9% are black, and 88% are white, which means that 420k blacks can vote, and 4.2 million whites. Applying the 21.8% and 15.8% gives 91k blacks that are affected, and 660k whites. The fact that 6% more blacks than whites are affected in NO WAY changes the fact that 7 times more whites are affected by this law. This is NOT targeting minorities.
Exactly right. Because during the Jim Crow era, the legislators of the Southern states thought it “reasonable” to have literacy tests. After all, they argued, if a potential voter wasn’t literate, then how could that voter possibly be qualified to vote?
I fear that if we had the current Supreme Court reviewing the Jim Crow laws, Scalia would have written the majority opinion affirming the “rights” of states to make such “reasonable” demands upon their voters. After all, the US Constitution clearly gives the responsibilty for elections to the states…
Addison,
This is NOT targeting minorities.
Oh yes it is, but not solely minorities–I’ll grant you that. This law is about targeting Democrats. pure and simple.
Ejo, your argument applies just as strongly to any kind of voter registration requirement as it does to the ID requirement. Why not just let anyone show up at the polls and vote, taking their word for it that they are a citizen and qualified to vote in that district? Surely there are some people who don’t vote because they never got around to registering, but would do so if they could just show up on election day and cast a ballot. Are current election laws “disenfranchising” those people?
The fact, which you seem so eager to ignore, remains that the Constitution permits states to impose regulations for the purpose of ensuring the integrity of the electoral system, even when those regulations impose some degree of impediment to the exercise of the right to vote. If you want to argue that the ID requirement is more like a literacy test than like a registration requirement, go right ahead, but you’ll have to explain why. So far all you’ve done is made an argument that states shouldn’t be permitted to regulate voting at all– which is ridiculous on its face.
JRD,
I name you king-of-the-strawman-argument. All hail your mendacity.
I would think that my consistent reference to the Jim Crow era would be a pretty clear indication that I’m aware of how the Constitution can be interpreted to disenfrachise voters all in the name of “states rights”. I do not need to make the argument that equate voter ID laws with literacy tests or poll taxes in order to be dubious about the notion of “reasonable” regulations. The Supreme Court is not infallible, Giles v Harris (1903) would seem to be illustrative here.
quick aside: I referenced Giles v Harris only in that it specifically related to the voter registration and defering to states rights. There are clearly better examples of spectularly wrong Supreme Court decisions.
I wouldn’t argue that the particular decision being discussed in today’s post belongs in that same category, yet, it is a poor decision.
Ejo,
Your reponse is nonsensical. The Constitution does not permit literacy tests– that’s why the Court struck them down under the Fourteenth Amendment! Instead of accusing me of straw men, how about considering the possibility that you don’t understand this issue or your own position very well? Now let’s try this again. If you’re going to argue that the Constitution permits voter registration requirements but prohibits literacy tests– and I don’t think we disagree about that– then you’ve already accepted the premise that some burdens on the exercise of the right to vote are constitutionally permissible. The question, at that point, is which ones? I’ve explained, at length, my view that the ID requirement falls on the constitutional side of the line, along with registration requirements, while your position seems to be that it falls on the unconstitutional side of the line, like literacy tests. But you haven’t explained why. Everything you’ve said so far, as I pointed out in my last post, would apply just as much to registration requirements as it would to ID requirements. So you need to offer some kind of principled explanation why ID requirements are not ok but registration requirements are.
Sorry, Edo, that is. Not sure why I was writing Ejo.
Why would the poor be disadvantaged? I never heard of anyone so poor that they didn’t have a face or fingerprints!
The decision was the CORRECT one. We ask people for all kinds of IDs for just about EVERYTHING these days, so why should something as IMPORTANT to our Representative Democracy as voting be any different?
#74: Because the Constitution is *not* a list of what citizens are permitted to do, it is a list of things the *government* is permitted to do. And amendments 14 and 15 are quite explicit on this matter. The government may **NOT** abridge the right to vote. There is no “but” or “unless” clause.
This voter id law is quite blatantly unconstitutional. Sorry, but that is reality.
JRD,
The Constitution does not permit literacy tests– that’s why the Court struck them down under the Fourteenth Amendment!
your reasoning seems a bit circular here, but I understand that’s due to the nature of the beast. In other words, had the supreme court ruled that the Indiana law was unconsitutional, then the statement “The Constitution does not permit Voter ID laws like Indiana’s” would be valid.
Question: how many Supreme Court cases were there directly related to literacy tests *before* the Court struck them down? more than one, and thus, by definition they were considered constitutionally permissable. That does not make it right.
while your position seems to be that it falls on the unconstitutional side of the line, like literacy tests. But you haven’t explained why.
I think comment #s 43 and 52 do a fair job of explaining the constitution based objections. And using Stevens argument is not compelling to me given that we have already established that the Court is fallible (Dred Scott anyone? Plessy anyone?) using the majority opinion to bolster your argument is not persuasive to me.
there is no demonstrable fraud, thus there is no state interest.
There is a hardship to some voters. Hardship without state interest is an untolerable abridgment of Constitutionally protected rights.
instead of saying “well, when someone actually is disenfranchised, then we’ll look at the law” I think the Court should be coming down on the side of the people, not the state: “when you can actually show evidence of the kind of fraud this law is expressely written to prevent, then we’ll assess whether it is constitutionally acceptable; until then, this law is an unacceptable abridgement of constitutionally protected rights.”
Edo,
The only thing close to an objective statement of the meaning of the Constitution to which we can ever aspire is well-established Supreme Court precedent. So, yes, when I say that the Constitution does not permit literacy tests, I have in mind the fact that the Supreme Court has held that it does not, notwithstanding the fact that some courts held those tests permissible in an earlier jurisprudential era. So in that sense even Justice Scalia would have to admit that the meaning of the Constitution has changed over time; in any case, those on the left generally favor an evolving Constitution approach.
The rest of your comment doesn’t respond to the problem that I raised in post 68, which is that all of your arguments are equally applicable to voter registration requirements as they are to voter ID laws.* To summarize the point I raised two or three posts ago: voter registration requirements are themselves a burden on the right to vote, and it’s surely conceivable that some people who would otherwise vote have been precluded from doing so because they find the registration requirement too onerous. I assume, though (since you’ve yet to confirm this), that you don’t find registration requirements to be an unconstitutional infringement on the right to vote. Why not? And what is it about ID laws that make them unconstitutional while the registration requirement is not?
The answer, which I think is aptly stated by Justice Stevens and the line of cases cited in Crawford, is that state regulations which go to protect the integrity of the electoral process by ensuring that prospective voters are constitutionally qualified– i.e, are citizens of the United States and meet the requirements of age, residency, etc., necessary for voting– are permissible, while regulations that go beyond that (e.g., literacy requirements) are not. That makes perfect sense to me, and I’ve yet to see you or anyone else propose a workable principle that would permit registration requirements while excluding ID requirements.
*Your reliance on posts 43 and 52 is, to put it mildly, telling. Doubtful’s rant at 43 is completely off-base and misses entirely the point of my post to which he was responding; he clearly doesn’t understand even the fundamentals of constitutional law. Davis X. at 52 concedes, as I point out in my subsequent reply to him, that strict scrutiny does not apply to voting rights cases, so whatever argument you might make under a strict scrutiny standard is not very convincing.
To follow up on my last point, let’s bear in mind the fact that the registration requirement, just like the ID requirement, is presumably targeted at least in part at reducing voter fraud. So by your logic, is it unconstitutional to impose a registration requirement absent demonstrable evidence of past fraud?