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Wednesday, September 19, 2007

Ind. Decisions - Yet more on: Appeal of Indiana voter ID case to U.S. Supreme Court

Richard L. Hasen, professor at Loyola Law School in Los Angeles, and editor of the Election Law Blog, has an oped today in the Washington Post on the Indiana voter ID case (Crawford v. Marion County Election Board) pending a cert decision before the Supreme Court. It begins:

At a private conference next Monday, the Supreme Court will consider whether to hear a challenge to Indiana's new law requiring voters to show photographic identification at the polls. The court should take the case, both to correct a troubling partisan divide among lower-court judges over the constitutionality of such laws and to reject a pernicious opinion by federal Judge Richard A. Posner that belittles the right to vote.

It is no secret that a partisan divide over election administration has emerged since the 2000 Florida debacle. Republican state legislators push for laws that they say will prevent voter fraud, and Democratic legislators push for laws they say will prevent voter intimidation and remove barriers to voting. Every state legislature that has passed a voter identification law since 2000 has done so along party lines.

Less well known is that a partisan divide has also emerged in the courts. The Michigan Supreme Court, for example, recently voted 5 to 2 to uphold that state's voter identification law, with all five Republican justices voting to uphold and both Democrats concluding that the law is unconstitutional.

That vote came on the heels of the decision by the U.S. Court of Appeals for the 7th Circuit regarding the Indiana law. Democrats and the American Civil Liberties Union argued that Indiana's law, passed by the state's Republican-controlled legislature, would have a disparate impact on the poor and minorities, who are least likely to have proper voter identification or to be able to afford the documentation (such as a certified copy of a birth certificate) necessary to procure it. Although the law allows someone to file an "indigency affidavit" in lieu of producing ID, the process is burdensome. A poor voter in Gary, for example, would have to cast a provisional ballot at a polling place, then make a 30-minute car trip within 10 days to file an affidavit in the county seat. There's no public transportation or government subsidy available to help the voter get there.

Indiana has conceded that there have been no cases in state history of voter impersonation that an ID law would have prevented. While there is a history of voter fraud through absentee ballots, such ballots -- often favored by Republicans -- were not covered by the new law.

A three-judge panel of the 7th Circuit split: The two Republican-appointed judges voted to uphold the law and the one Democratic appointee dissented. When the entire 7th Circuit considered whether to rehear the case, the court again split, almost perfectly along party lines.

For background, start with this June 30, 2007 entry.

Posted by Marcia Oddi on September 19, 2007 09:17 AM
Posted to Ind. (7th Cir.) Decisions