Voter ID arguments

Washington Post:

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.

"You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?" Kennedy asked Washington lawyer Paul M. Smith, who argued the case on behalf of the Indiana Democratic Party, the American Civil Liberties Union, and other Hoosier community groups and individuals.

But Kennedy did join liberal justices in expressing concern about what happens to those registered voters who do not have photo identification. Indiana's law requires them to cast provisional ballots and then travel to the county seat within 10 days with the proper identification or other documentation such as a certified birth certificate for their votes to be counted.

Kennedy wondered whether there is a way "the central purpose and the central function of this statute can be preserved but there can be some reasonable alternatives for people who have difficulty."

The issue goes far beyond Indiana, as states with Republican-majority legislatures are pushing similar laws, saying they are a necessary and common-sense way supported by the public to combat voter fraud. Democrats say the laws do not address the most prevalent forms of fraud, such as absentee ballots, but discourage or even disenfranchise those least likely to have a driver's license or passport -- the poor, elderly, disabled or urban dwellers who happen to be most likely to vote Democratic The 2 to 1 decision by a panel of the U.S. Court of Appeals for the 7th Circuit that upheld Indiana's law frankly discussed the political realities -- the dissenting Democratic-appointed judge called it a "not-too-thinly veiled attempt" to discourage voters who skew Democratic. But yesterday there were only limited references from the justices to the political advantages at stake in this election year.

Justice John Paul Stevens asked U.S. Solicitor General Paul D. Clement, who filed a brief on behalf of the Bush administration supporting Indiana, whether it was "fair to infer that this law does have an adverse impact on the Democrats that is different from its impact on the Republicans."

Clement did not answer directly, but he told Stevens that if "this was a cleverly designed mechanism by the Republican Party to disadvantage the Democratic Party, at least in 2006 it looks like it went pretty far awry." As in states with or without voter identification laws, Indiana Democrats did better in those elections than the previous one.

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Justice Samuel A. Alito Jr. seemed inclined to uphold Indiana's law, but he summed up the quandary for the court.

"If you concede that some kind of voter ID requirement is appropriate, the problem that I have is where you draw the line on a record like this, where there's nothing to quantify in any way the extent of the problem or the extent of the burden," he said. "How do we tell whether this is on one side of the line or the other side of the line?"

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Alito shows sound judicial thinking. The challenge fails because the appellants did not build a record to support their case. It also demonstrates the problems many Democrats have on this issue. They presume it is a problem and don't feel a need to support their argument with facts.

Democrats are also on the wrong side of this issue politically. Even though the argument was cast as a Democrat vs. Republican one in the court, the polls show a vast majority of the public supports voter ID. Clement did a good job of destroying the D's v. R's argument by referring to the 2006 election.