Reasonable or snake oil remedy? Supreme Court seems to think former for Indiana Voter ID law David Edwards and Muriel Kane

Published: Wednesday January 9, 2008



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Print This Email This Court seems to back Indiana voter ID law A suit challenging an Indiana law that requires voters to present a photo ID at the polls was heard today by the Supreme Court. The law, which was passed by Indiana Republicans in 2005 on a party-line vote, has been criticized by Democrats as likely to disenfranchise elderly, poor, and minority voters, who are most likely to have trouble obtaining the necessary documentation. Attorney Paul Smith, who represents the challengers, told the Associated Press that if this sort of fraud were actually occurring to any significant degree, we would be hearing stories about it. The fact that there are no reports of hundreds of dead people voting every year suggests it isn't a problem. "It's a totally inefficient way to actually affect an election," Smith said, explaining that if you're serious about committing election fraud, "you want to be on the inside, or you want to have access to the voting machines." Indiana Solicitor General Thomas Fisher told AP that there have, in fact, been several prosecutions for voter fraud in one Indiana county, and that "when citizens see that kind of fraud, they assume it happens all over." He called the use of ID cards "a reasonable security measure ... to protect the right to vote." However, Talking Points Memo reports that, when interviewed on television, Indiana's Secretary of State was unable to come up with even one case of a prosecution in the state for voter impersonation. Court seems to back Indiana voter ID law The Supreme Court appeared ready Wednesday to uphold the nation's strictest requirement that voters show photo identification before casting a ballot. The justices are faced with a partisan dispute that echoes the bitterly divided decision that sealed the 2000 presidential election for George W. Bush. Now, as then, the court seemed divided along ideological lines. Wednesday's arguments were over a challenge to an Indiana law, passed in 2005, that is backed by Republicans as a prudent way to deter voter fraud. Democrats and civil rights groups oppose the law as unconstitutional and call it a thinly veiled effort to discourage elderly, poor and minority voters  those most likely to lack proper ID and who tend to vote for Democrats. But Justice Anthony Kennedy, often a key vote on the court, did not sound persuaded that the challengers had made their case. "You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?" Kennedy said near the end of the lively session. Kennedy did, however, voice concern over some aspects of obtaining an ID, including the difficulty the poor have in getting the birth certificates that are needed to get photo ID. More than 20 states require some form of identification at the polls. Courts have upheld voter ID laws in Arizona, Georgia and Michigan, but struck down Missouri's. The Indiana case should be decided by late June, in time for the November elections. The justices could use the case to instruct courts on how to weigh claims of voter fraud versus those of disenfranchisement. Paul Smith, representing the challengers, told the justices that there is no evidence of in-person voter fraud in Indiana. He said the law is a subtle way "to skew the outcome on election days." Indiana Solicitor General Thomas Fisher said the vast majority of Indiana voters easily comply with the law. "You're talking about an infinitesimal portion of the electorate that could be burdened," Fisher said under sharp questioning from Justice David Souter. Justice Samuel Alito, who appeared more sympathetic to Indiana's case, posed the question that troubled several justices. With little evidence of fraud or of voters who have been kept from voting, Alito said, "The problem I have is, where do you draw the line? There is nothing to quantify the extent of the problem or the extent of the burden." Chief Justice John Roberts, who grew up in Indiana, and Justice Antonin Scalia indicated strong support for the state law. Justice Clarence Thomas said nothing, but most often votes with his conservative colleagues. When Smith said poor voters lacking ID have to visit the county courthouse within 10 days of an election and sign a sworn statement there to have their ballot counted, Roberts asked, "How far away is the furthest county seat? ... County seats aren't very far for people in Indiana." The court's four liberal justices were more critical of the state. Justice Ruth Bader Ginsburg focused her questions on the difficulties for indigent voters who lack IDs. Why, she asked, can't the state allow those voters to sign a sworn statement on Election Day, which would eliminate the second trip to the county courthouse? Told Indiana wants to avoid congestion at the polls, Ginsburg said the state wants to have it both ways because it argues relatively few people are affected by the law. "If there are so few of them, I don't understand why they should be put to the burden," Ginsburg said. Souter and Justice John Paul Stevens both pressed Fisher on the state's problems with voter registration rolls, which Fisher acknowledged are among the nation's worst in terms of retaining the names of the dead and those who have moved. Indianans are not required to show photo ID to register. "Is it the policy to have it tougher to vote than to register?" Stevens said. "That doesn't make sense to me." Justice Stephen Breyer wondered why the state doesn't just give photo IDs to newly registered voters who otherwise lack them. "That ... would satisfy your anti-fraud interest much better than the way you have chosen," Breyer told Fisher. The consolidated cases are Crawford v. Marion County Election Board, 07-21, and Indiana Democratic Party v. Rokita, 07-25. According to Justin Levitt, a counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law, "requiring voter ID at the polls is a snake-oil remedy." "Snake oil is back, and gumming up our elections," Levitt writes in an op-ed for the Daily Press. "Like the old-timey liniments of dubious provenance, the new policies sound promising but don't solve the problems advertised, and sometimes cause real harm." Excerpts from Levitt's editorial: # For those without the right ID, it can be a burden to obtain: It takes ID to get ID. You have to spend time and money digging up or sending away for a birth or naturalization certificate, with an additional bureaucratic detour if you have changed your name. Then you have to leave work and trek  without a driver's license  to a particular office during government hours. The older or poorer you are, the harder this may become. As a result, eligible citizens are left out in the cold. In one brief filed with the Supreme Court, defendant Marion County admitted that dozens of real voters, including many who had voted for years, were turned away from municipal elections held just a few weeks before, votes uncounted. Snake-oil salesmen use familiar dodges to counter the hard data. They recycle the canard that government-issued photo ID must be ubiquitous because it is so often required. They claim that you must have the ID to fly, cash a check, buy cigarettes, rent a video. Though oft-repeated, this is not true. It is also beside the point. Nobody ever died for the right to rent a video. Men and women have given their lives to secure every eligible American citien's inalienable right to vote. Restrictive ID rules endanger that sacred trust, but for precious little reward. The laws are advertised as common- sense cures for voter fraud. Like Dr. Sibley's Reanimating Solar Tincture, they don't live up to their advertising. # This video is from The Associated Press, broadcast January 9, 2008.





(with wire reports)



