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Thursday, January 10, 2008

Ind. Decisions - "Justices seem hesitant to toss Indiana's voter ID law"

That is the headline to this long story today by Indianapolis Star Washington editor Maureen Groppe. It begins:

WASHINGTON -- Some Supreme Court justices questioned Wednesday whether Indiana could fashion a voter identification law that would help prevent fraud but be less burdensome than the law the state passed in 2005.

But the justices appeared reluctant to throw out the law, considered the toughest in the nation, that requires voters to show a photo ID issued by the federal or state government.

"You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?" asked Justice Anthony Kennedy, a frequent swing voter.

Sylvia A. Smith, Washington editor for the Fort Wayne Journal Gazette, begins her story:
WASHINGTON – Indiana’s voter ID law could be rewritten to be less of a hassle for some Hoosiers, a few Supreme Court justices said Wednesday, but the court seemed hesitant to say the three-year-old law is unconstitutional.

Justice Ruth Bader Ginsburg was the only member of the nine-judge panel who appeared to fully reject the law, which requires voters to present a driver’s license or other government-issued photo identification before they vote.

People who show up to vote without the proper ID may cast a provisional ballot, which is then counted if the voter goes to the county courthouse within 10 days to show his driver’s license or other photo ID.

Washington lawyer Paul Smith, who represented the Democratic Party, said the law passed by the GOP legislature is particularly hard on low-income people without cars and elderly people who no longer drive, especially if they have to get to the courthouse to verify their identity. Voters in those categories skew Democratic.

Chief Justice John Roberts, who grew up in Indiana, seemed skeptical.

“How far away is the furthest county seat for somebody in the county? … County seats are not very far away in Indiana,” he said.

Indiana’s attorney, Thomas Fisher, said the law is important to reduce voter fraud.

But attorneys for neither side could quote specific numbers about how much fraud occurs or how many people have been denied a vote under the law.

Fisher acknowledged under sharp questioning that some people might have a tougher time voting because of the law, but “you’re talking about an infinitesimal portion of the electorate.”

Justice Anthony Kennedy asked Smith: “You want us to invalidate the statute because it’s a minor inconvenience to a small number of voters?”

Several justices seemed unsure how to balance an individual’s right to vote against the state’s need to guard against ballot-box fraud.

“Where do you draw the line?” Justice Samuel Alito asked. “There’s nothing to quantify in any way the extent of the problem or the extent of the burden. How do we tell if this is on one side of the line or the other?”

That distinction seemed less troubling to Roberts. He said the government is right to be concerned about voter fraud in close elections.

Nonetheless, Roberts scolded Indiana officials for doing “a lousy job” on voter registration. The federal government sued the state for not keeping its registration lists cleared of people who had died or moved.

Ginsburg suggested there are other ways for the state to guard against fake voters on Election Day that wouldn’t cause anyone any additional steps. She said, for instance, a photo could be taken when a person registers to vote, making for a one-stop registration and identification process.

Justice Stephen Breyer appeared to like that idea. “That ... would satisfy your anti-fraud interest much better than the way you have chosen,” he told Fisher.

David G. Savage of the LA Times writes:
WASHINGTON -- For a second time this week, a liberal challenge to a disputed state law floundered in the Supreme Court because lawyers could not show hard evidence that anyone had been harmed by the statute.

At issue Wednesday was Indiana's election law, the strictest in the nation, which requires voters to show an official photo identification, such as a driver's license or a passport, before casting a ballot.

Democrats challenged the law as a voting rights violation, contending the Republican-backed measure would deter thousands of poor, minority or elderly voters from casting a ballot.

But they filed their lawsuit in 2005, before the law had gone into effect and without naming any people who said they would be prevented from voting by the photo identification rule. That led to a round of skeptical questions from the court's conservatives, including how the law might have hurt voters.

"You want us to invalidate a statute on the grounds that it's a minor inconvenience to a small percentage of voters?" Justice Anthony M. Kennedy asked near the end of the hourlong arguments.

Led by Chief Justice John G. Roberts Jr., the high court has been increasingly unwilling to strike down state laws or regulations based on broad, hypothetical complaints. Roberts has insisted on real plaintiffs who cite specific problems.

The same theme was on display Monday when the court heard a challenge to lethal injections in a Kentucky death penalty case.

Defense lawyers insisted that the method of carrying out executions should be struck down as unconstitutional because, if done wrong, the condemned person might suffer searing pain. But the lawyer arguing the case had to admit there was no evidence that the method had been done wrong in Kentucky, which has not carried out an execution since 1998.

Robert Barnes' report in the Washington Post begins:
The Supreme Court appeared unmoved yesterday by arguments that an Indiana law requiring voters to present photo identification imposes an unconstitutional burden. Some justices, however, appeared to search for a middle ground on the divisive and partisan political issue.

Experts on voting rights see the legal battle over Indiana's toughest-in-the-nation voter identification law as the most starkly partisan case to reach the court since Bush v. Gore decided the presidential election in 2000.

And the court's questioning during an hour-long oral argument broke quickly along its own ideological divide. But the justice most often in recent years to play the decisive role -- Anthony M. Kennedy -- made it clear he did not share the challengers' view of the burden that producing a photo ID imposes.

Linda Greehouse begins her report in the NY Times:
WASHINGTON — There are many ways to lose a Supreme Court case, and by the end of an argument that was before the court on Wednesday, the Democrats who were challenging Indiana’s voter-identification law appeared poised to lose theirs in a potentially sweeping way, with implications for many future election cases.

The justices’ questioning indicated that a majority did not accept the challengers’ basic argument — that voter-impersonation fraud is not a problem, so requiring voters to produce government-issued photo identification at the polls is an unconstitutional burden on the right to vote.

The tenor of the argument suggested, however, that rather than simply decide the case in favor of the state, a majority of five justices would go further and rule that the challenge to the statute, the strictest voter-identification law in the country, was improperly brought in the first place. Such a ruling could make it much more difficult to challenge any new state election regulations before they go into effect.

Posted by Marcia Oddi on January 10, 2008 03:29 PM
Posted to Ind. (7th Cir.) Decisions