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Tuesday, April 29, 2008

Courts - Still more on: Supreme Court rejects voter ID law challenge

New or expanded stories today in the Indiana voter ID ruling yesterday by the Supreme Court.

Lesley Stedman Weidenbener of the LCJ reports here. The Fort Wayne Journal Gazette's Sylvia Smith's story has been expanded and appears here.

Tony Mauro of Legal Times writes:

The Indiana law won the support of six justices, who divided on the rationale. The main opinion in Crawford v. Marion County Election Board, authored by Justice John Paul Stevens, found that the state's interest in protecting the integrity of the voting process outweighed the insufficiently proven burdens the law imposes on voters.

"The evidence in the record is not sufficient to support a facial attack on the law," wrote Stevens, who was joined by Chief Justice John Roberts Jr. and Justice Anthony Kennedy.

The Stevens opinion also acknowledged that all of the state's Republican legislators, and none of the Democrats, voted for the law in 2005. But partisan motivation does not invalidate a law, Stevens said, as long as there are "valid neutral justifications" such as reducing voter fraud.

Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel Alito Jr., wrote separately to assert that the burden on voters imposed by the law is "minimal and justified" and therefore no further inquiry about the nature of the burden is needed.

While the opinion leaves open the possibility of an "as applied" challenge by actual voters who show the law disadvantaged their right to vote, analysts on both sides indicate the Court's opinions will make it difficult for those suits to succeed.

Even the dissenters recognized the state's interest in preserving the integrity of the elections, and none of the justices embraced the difficult-to-meet strict scrutiny standard urged by the challengers to Indiana's law, says Thor Hearne of Lathrop & Gage.

"This should shut the door on efforts to manipulate the election process by lawsuit," says Hearne, who wrote a brief for members of Congress who favored the Indiana law.

"This opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections," wrote Richard Hasen, a professor at Loyola Law School Los Angeles, on his widely read Election Law Blog. Hasen wrote a brief on the side of challengers to the law.

Hasen adds that if laws like Indiana's must now be challenged "as applied," that is "going to make it tough for a lot of plaintiffs who are burdened" to make their case.

Robert Barnes' story yesterday for the Washington Post is expanded here this morning.

Warren Richey of The Christian Science Monitor has this story, subheaded "Monday's ruling gives a green light to aggressive antifraud efforts often favored by the GOP."

Linda Greenhouse of the NY Times has a lengthy story this morning. Some quotes:

Six states in addition to Indiana — Florida, Georgia, Hawaii, Louisiana, Michigan, and South Dakota — now require voters to provide photo identification before casting a ballot. Bills are pending in two dozen other states, although they are not likely to pass this year in more than a handful, due to short legislative sessions and Democratic opposition.

The Indiana law, adopted by the Republican-controlled legislature in 2005 without a single Democratic vote, is regarded as the strictest in the country. It requires a voter to present a photograph as part of an unexpired document issued either by Indiana or the federal government, a requirement that in most cases can be satisfied only by a current driver’s license or a passport. The state’s motor vehicle agency provides a free photo ID card for people who do not drive, but obtaining it requires a “primary document” like an original birth certificate or a passport. * * *

The Indiana law was challenged in separate suits filed by the Indiana Democratic Party and by another group of plaintiffs that included elected officials and community groups. The plaintiffs argued that the state had failed to justify a requirement they said would place a special burden on thousands of eligible voters in Indiana who lack driver’s licenses, a group that disproportionately includes the poor, the elderly and people with disabilities.

The plaintiffs lost, both in Federal District Court in Indianapolis and in the United States Court of Appeals for the Seventh Circuit, in Chicago. Writing for the 2-to-1 majority at the appeals court, Judge Richard A. Posner agreed with the plaintiffs that the law would have the greatest impact on people who were “low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates.” While that fact gave the Democratic Party standing to sue, he said, it did not make the law unconstitutional.

The suits were filed before the statute took effect, challenging the law “on its face.” This technique, known as a “facial challenge,” has been a staple of election litigation, based on the notion that once an election has taken place, the asserted damage has been done and it is too late to make judicial amends.

A debate over the legitimacy of a facial challenge in the voter ID context did not enter this case until the Bush administration filed a brief at the Supreme Court stage supporting Indiana. Solicitor General Paul D. Clement told the court in his brief that, as a facial challenge, the suit was premature and based on nothing more than “speculation and as-yet untested evidence.” In the decision on Monday, Crawford v. Marion County Election Board, No. 07-21, the Supreme Court did not go quite so far as to make facial challenges unavailable. But Justice Stevens said in his opinion that in their effort to invalidate the statute in all its applications, the plaintiffs failed to carry their “heavy burden of persuasion,” given the weight of the state’s interest in election integrity.

In his dissenting opinion, which Justice Ginsburg also signed, Justice Souter examined the case from the opposite end of the telescope. Given that there was “no evidence of in-person voter impersonation fraud in a state, and very little of it nationwide,” he said it was Indiana’s job to justify placing even a slight burden on even a limited number of people. “The interest in combating voter fraud has too often served as a cover for unnecessarily restrictive electoral rules,” Justice Souter said.

Justice Breyer, in a separate dissenting opinion, compared Indiana’s law with those in Georgia and Florida, which also require photo identification but accept a range of more broadly accessible documents. Florida accepts student identification cards, employee badges and cards from neighborhood associations, for example, and accepts a provisional ballot as long as the voter’s signature matches one on file. Indiana has not justified its “significantly harsher” requirements, he said.

The vote of Justice Stevens, a reliable anchor of the court’s liberal bloc, was something of a surprise. Some speculated that his strategic aim was to keep Chief Justice Roberts and Justice Kennedy from joining the Scalia camp. Edward B. Foley, an election law expert at Ohio State University, said the Stevens opinion might represent an effort to “depoliticize election law cases.”

Also in the NY Times today, a report by Ian Urbina headed "Decision Is Likely to Spur Voter ID Laws in More States," that examines the potential impact of the decision.

For earlier ILB coverage on yesterday's opinion and what led up to it, see this long list of ILB entries on "voter ID".

Posted by Marcia Oddi on April 29, 2008 08:52 AM
Posted to Ind. (7th Cir.) Decisions