Wednesday, April 30, 2008



The Indiana photo-ID decision sets the stage for state legislators to restrict voting rights any way they can, as long as they invoke "voter fraud"

By Jon Dodson

DWT constitutional correspondent

The Supremes recently decided the biggest voting rights case since Bush v. Gore. The issue was whether Indiana's law requiring state-issued photo IDs for everyone voting in person violates the Equal Protection Clause of the 14th Amendment.


In a long line of cases, the Equal Protection Clause attaches to certain fundamental rights. The landmark case on voting rights was Harper v. Virginia Board of Elections, 383 US 663 (1966), where the Court held Virginia's poll tax unconstitutional. The Court concluded that any state "violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard." Moreover the Court stated that even rational restrictions on the right to vote would be unconstitutional if they "invidiously discriminate."

However, in Anderson v. Celebreeze, 460 US 780 (1983), the Court clarified that "evenhanded restrictions that protect the integrity and reliability of the electoral process itself" are not invidious. This is the law the Court applied to Indiana's statute.


We've all had the luxury of a visit to the DMV, which has become a trite parody of bureaucratic excess and inefficiency. In Florida, getting a photo ID costs $20 and about an hour of waiting at DMV--when one has all the documentation one needs.

But birth certificates can get lost or destroyed, and (as I found out) can be relatively expensive to replace (over $50 if you were born in North Carolina). So, depending on the various hoops one must jump through, getting an ID can take hours and a significant sum of money.

The good news is that if a person has the documentation and transportation he or she needs, the Indiana law ensures that photo identification can be obtained for free. The plurality repeatedly pointed this out, which leads me to believe--or desperately hope--that the Court may hold unconstitutional a law requiring voter ID that costs money.

On the other hand, the Virginia poll tax held unconstitutional in 1966 cost $1.50, so maybe that's the cutoff. But then the Court would have to calculate how much $1.50 is in 2008 dollars. And so, really, "not free" would be the easiest place to draw the line.


The other good news is that the Indiana law provides an alternative for persons who do not have an ID: They can cast a provisional ballot, which will be counted so long as they fill out an affidavit at the circuit court clerk's office within 10 days.

Now, if there's anything more likely to drive a person to suicide than going to the DMV, it's going to the clerk's office. Clerks in any populous jurisdiction are incredibly busy, generally grumpy, and, from the standpoint of customers, painfully slow. Not to mention that this alternative does nothing for persons without transportation.

So, again, the provisional-ballot/affidavit method is easier said than done. One can't help but wonder, why not fill out the affidavit right there at the voting precinct? Wouldn't that be a lesser burden on the voter? Although the Indiana law is not nearly as bad as it could be, it still places severe obstacles in the way of many people--particularly poor persons, elderly persons, naturalized immigrants, college students, and anyone else with transportation, financial, or paperwork problems.


What's more troubling than the law itself is the Supreme Court's opinion. Once again, the Court stuck its head in the sand, rather than deal with what everyone knows: First, these laws are politically motivated, and second, no state has had an even moderate problem with voter fraud.

Regarding the politics behind this law, the Court concluded that "valid neutral justifications for a nondiscriminatory law . . . should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators."

This understatement is in line with the Equal Protection cases basically holding that discriminatory intent is not enough to offend the Constitution where there's no discriminatory effect--see Washington v. Davis, 426 US 229 (1976). But it also appears to be an application of the relaxed "rational basis" standard of review, in a case where strict scrutiny is warranted.

Under the rational basis standard, so long as the legislators can dream up a "conceivably rational" justification, the law should be upheld. This standard is supposed to apply in cases that involve neither a fundamental right nor a suspect classification such as race or gender. Strict scrutiny requires a more compelling justification of the state.

So the Court seemed to apply the wrong standard of review, or misapply the correct standard, in discounting the impermissible political motivations of the law. (Can we say "invidious"?)

In contrast to the short shrift given to the obvious political motivations, the Court took very seriously the rationale that the law was intended to prevent voter fraud, despite the paper-thin record of voter fraud ever being a problem. As far as I could tell, the Court cited two incidents of the kind of fraud to be prevented here--voter impersonation. One happened in a gubernatorial race in Washington state, and another in a mayoral race in Indiana. Justice John Paul Stevens concluded for the plurality that this "demonstrates a real risk that voter fraud could affect a close election's outcome."

If another justice had written the majority opinion in this case, I would insert here a rant about the hypocrisy of such hand-wringing over whether "fraud" would determine the outcome of an election. Because, frankly, I consider the justices in the majority of Bush v. Gore a fraud. That case exposed them as partisan hacks rather than judges. But, Justice Stevens actually wrote a brilliant, biting dissent in Bush v. Gore. So I must concede that his concerns with voter fraud must have been genuine in this case.

Be that as it may, the record is very, very flimsy. In a case where the Court supposedly applies some iteration of strict scrutiny, it's hard to believe that such a lack of evidence could be the basis of a compelling state interest which trumps Equal Protection when it comes to voting.


One final note: the challenge to Indiana's law was a facial challenge, essentially arguing that the law is unconstitutional per se. The Court did leave open "as applied" challenges to the law in the future.

So perhaps a person who tries to vote in person without an ID because of financial or transportation issues but can't . . . perhaps she will somehow come up with the resources and lawyers to challenge the statute as applied to her. Or barring that, maybe this person who could not afford to vote will represent herself. She can just take a pro se writ of certiorari before the Supreme Court! This is a reasonable remedy, no?

At any rate, one thing is certain: The Supreme Court declared open season for state legislators to dream up all kinds of restrictions on the right to vote, so long as they remember to wink and say "voter fraud." This is not the last we will hear from the Court about this issue in the coming years.

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At 4:21 AM, Blogger Noonan said...

According to

In 2007, $1.50 from 1966 is worth:
$9.58 using the Consumer Price Index
$7.74 using the GDP deflator
$10.81 using the value of consumer bundle *
$10.22 using the unskilled wage *
$17.16 using the nominal GDP per capita
$26.35 using the relative share of GDP

At 7:53 AM, Anonymous Anonymous said...

wow...I'll have to make a note of that website.

At 9:37 AM, Anonymous Anonymous said...

THANKS Keny and Jon.

Stevens NEEDS to retire after that one. Could anything be MORE terrifying than the fact (and grace) that W got to appoint only two Conservative judges than HOW MANY 4MoreYears McFeeble would get?

Thanks noonan, great bookmark.

At 2:15 PM, Anonymous Anonymous said...

Bil -

Don't count your chickens before they hatch. Stevens is 87, and they all have to hold on for 7 more months before we can say Bush only got 2.

Also, don't be so eager to bid Stevens farewell. He's written all of the truly GREAT, rousing opinions in recent years, so I'll be sad to see him go.

But he was appointed by Nixon, and still considers himself a Republican, if only an old-school Goldwater-type. Hence these occasional disappointments.

At 5:35 PM, Blogger KenInNY said...

Actually, Justice Stevens was appointed in 1975 by the much-maligned Jerry Ford, at the recommendation of the distinguished attorney general he had appointed earlier that year, Edward Levi.

I don't know what Justice Stevens was thinking in this case either, but I don't think there's any question that he's had a great career on the Court. One thing I do think we're safe from, though, is another Bush Supreme Court appointment. Even if a vacancy occurred tomorrow, I don't see any possibility that the Senate would consider a lame-duck appointment from our Chimpy.


At 6:06 PM, Anonymous Anonymous said...

oops... I was thinking about Blackmun. Its hard to keep up with all of the great liberal justices appointed by Republicans! Brennan, Warren, Blackmun, Stevens, Souter...


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