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Postman on Politics

Chief political reporter David Postman explores state, regional and national politics.

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April 28, 2008 10:09 AM

U.S. high court says voter i.d. laws OK

Posted by David Postman

The U.S. Supreme Court today said states can require voters to show photo identification before casting a ballot. In a split ruling, the court upheld a Republican-sponsored law in Indiana. Democrats and voting rights groups challenged the law, saying it would discourage voting by poor, elderly and minority voters.

Election law expert Rick Hasen says the decision in Crawford v. Marion County Election board is a “significant win for those who support stricter voter identification laws, even if they support such laws for partisan purposes.” (Hasen filed a pro bono brief in support of the challenge to the law.)

He writes at his electionlawblog:

It will encourage further litigation, because it relegates challenges to laws imposing onerous burdens on a small group of voters to "as applied" challenges, but those challenges will be difficult to win. The lack of a majority opinion, moreover, injects some uncertainty into the appropriate standard for reviewing other challenges to onerous election laws.

Washington state plays into today’s decision in two ways. In the controlling opinion by Justice John Paul Stevens, it is clear that to defend a voter ID law there doesn’t need to be very strong evidence of past voter fraud. The Indiana law was designed to prevent in-person, voter impersonation fraud at polling places. But as Stevens himself made clear:

The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor —though perpetrated using absentee ballots and not in-person fraud—demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.

And what is the evidence of the “occasional examples” that surfaced in recent years? As it says in footnote 12 today:

While the brief indicates that the record evidence of in-person fraud was overstated because much of the fraud was actually absentee ballot fraud or voter registration fraud, there remain scattered instances of in-person voter fraud. For example, after a hotly contested gubernatorial election in 2004, Washington conducted an investigation of voter fraud and uncovered 19 “ghost voters.” Borders v. King Cty., No. 05-2-00027-3 (Super. Ct. Chelan Cty., Wash., June 6, 2005) (verbatim report of unpublished oral decision), 4 Election L. J. 418, 423 (2005). After a partial investigation of the ghost voting, one voter was confirmed to have committed in-person voting fraud.

The evidence cited in the footnote for the one case is a story from the P-I.

There’s a local angle with more far-reaching effect, though. Today’s case follows a line of reasoning the court used recently in its recent decision upholding Washington’s top-two primary law. The court is making it clear that to successfully challenge an election law, petitioners have to be able to show actual damage. It’s not enough to say that a law appears to be unconstitutional or that it could disenfranchise voters - as the claim in today’s case - or political parties, as claimed in the top-two case. What the court calls facial challenges are not enough. The petitioners have to show constitutional violations as the law was applied.

Stevens wrote today that petitioners “bear a heavy burden of persuasion in seeking to invalidate (the law) in all its applications.”

This Court’s reasoning in Washington State Grange v. Washington State Republican Party, 552 U. S., applies with added force here. Petitioners argue that Indiana’s interests do not justify the burden imposed on voters who cannot afford or obtain a birth certificate and who must make a second trip to the circuit court clerk’s office, but it is not possible to quantify, based on the evidence in the record, either that burden’s magnitude or the portion of the burden that is fully justified. A facial challenge must fail where the statute has a “ ‘plainly legitimate sweep.’ ”

While the lawsuit that led to today’s decision had partisan roots, the mix of opinions in the split decision today could mute charges that the court issued a political decision. Stevens is generally considered among the court’s liberals.

Washington's voter identification law requires proof of i.d., but not a photo. Republican lawmakers have pushed for tougher requirements.

Olympia-based Evergreen Freedom Foundation filed an amicus brief in support of Indiana's law. EFF attorney Jonathan Bechtle issued a statement this morning that said:

This is a victory for everyone who cares about protecting the ballot box. I am thrilled that the Court upheld Indiana’s law. Now every other state, including Washington, will be able to confidently enact security measures like requiring voter ID and proof of citizenship to ensure only legal voters can vote.

In fact, the Court ruled in Indiana’s favor precisely because, as Justice Stephens wrote, ‘the application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting the integrity and reliability of the electoral process.

For another conservative view, read Michelle Malkin who declares it good news and says:

The race-mongers and open borders lobby will be in an uproar.

Liberals worry, though, about what the decision means for upcoming elections. At DailyKos, a writer says the ruling will open “the door to all sorts of harassment for minority, elderly and other traditionally Democratic voters.”

Bottom line, friends? The Great Disenfranchisement of 2008 has begun. These laws are not neutral, are not innocent, but are an attempt by Republican legislators to prevent traditionally Democratic voters from casting their ballots. We need to do whatever it takes to help all qualified voters obtain whatever records they need so that they can vote this November; we cannot let them win.

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