1.
While the failed media predictions in New Hampshire this week should leave "predictors" skeptical about their foreseeing prowess, the media eagerly resumed their task in regards to the Indiana Voter ID cases, which were argued before the Supreme Court this Wednesday. My observations follow.
Justice Scalia opened by directing the petitioners to address the issue of standing, leading to what may be the pivotal issue of whether the facial challenge was the appropriate means for challenging the law. Stuart Taylor of the National Journal discussed this issue prior to the arguments and Linda Greenhouse wrote on it after the arguments. (The standing issue was raised in the amicus brief submitted by the Lawyers Democracy Fund.) Standing also may be a key issue in the decision because it may gather at least a 5-4 majority. Justice Kennedy noted, "I just think it's hard to confine [the petitioner's] rationale if you say that any association can sue."
Regarding the issue of whether vote fraud occurs, Justice Alito pointed to the Carter-Baker Commission: "If [vote fraud] is not a problem at all, how do you account for the fact that the [Carter-Baker Commission] recommended a voter ID requirement, and many other countries around the world have a voter ID requirement?..[W]hy would they even require that if it's not any problem at all? Doesn't it at least show that it is a problem of some dimension, maybe not as severe as Indiana claims, but there would be no need for any sort of photo ID...requirement, if there were no problem whatsoever."
Justices Souter and Ginsburg expressed concern about the burden on indigent voters. In response U.S. Solicitor General Clement noted, "I think if we had an as-applied challenge that wasn't this kind of grab bag challenge that looks at all the various different classes of people that might be adversely affected" the State would be better able to put evidence on record regarding why they made the policy choice that they did. "If there were that kind of as-applied challenge, one of the virtues of it would be that the remedy at the end of the day would not be to strike the statute down on its face, but it would be an injunction consistent with the teaching of this Court..."
In rebuttal, the petitioner pressed the Court to find the entire law unconstitutional because "it imposes a range of burdens on people from quite severe to less severe, and those burdens vastly outweigh ... any incremental state interest that is being served." Justice Scalia closed the session questioning this rationale: "[I]f you want to talk about increments, why shouldn't we also ask whether ...the remedy for the inconvenience to a small number of people is to wash away the whole statute, which in most of its applications is perfectly okay?"
Shortly before the arguments, an Indiana paper published an article revealing that one of the individuals highlighted by opponents to Indiana's Voter ID law is illegally registered in two states. The woman had attempted to vote in Indiana in 2006 using her Florida driver's license. When the poll workers refused to let her vote on a regular ballot, she declined to vote using the provisional ballot. Her story was highlighted in the brief by the Brennan Center.
2. "Voter IDs Are Not the Problem"
American University's Center for Democracy and Electoral Management released a study that found, based on a survey of registered voters in Indiana, Maryland and Mississippi that only 1% of registered voters lacked a photo ID. In Indiana alone the percentage was only .3%. It also found that over 2/3 of the respondents felt "the U.S. electoral system would be trusted more if voters were required to show a photo ID."
While the failed media predictions in New Hampshire this week should leave "predictors" skeptical about their foreseeing prowess, the media eagerly resumed their task in regards to the Indiana Voter ID cases, which were argued before the Supreme Court this Wednesday. My observations follow.
Justice Scalia opened by directing the petitioners to address the issue of standing, leading to what may be the pivotal issue of whether the facial challenge was the appropriate means for challenging the law. Stuart Taylor of the National Journal discussed this issue prior to the arguments and Linda Greenhouse wrote on it after the arguments. (The standing issue was raised in the amicus brief submitted by the Lawyers Democracy Fund.) Standing also may be a key issue in the decision because it may gather at least a 5-4 majority. Justice Kennedy noted, "I just think it's hard to confine [the petitioner's] rationale if you say that any association can sue."
Regarding the issue of whether vote fraud occurs, Justice Alito pointed to the Carter-Baker Commission: "If [vote fraud] is not a problem at all, how do you account for the fact that the [Carter-Baker Commission] recommended a voter ID requirement, and many other countries around the world have a voter ID requirement?..[W]hy would they even require that if it's not any problem at all? Doesn't it at least show that it is a problem of some dimension, maybe not as severe as Indiana claims, but there would be no need for any sort of photo ID...requirement, if there were no problem whatsoever."
Justices Souter and Ginsburg expressed concern about the burden on indigent voters. In response U.S. Solicitor General Clement noted, "I think if we had an as-applied challenge that wasn't this kind of grab bag challenge that looks at all the various different classes of people that might be adversely affected" the State would be better able to put evidence on record regarding why they made the policy choice that they did. "If there were that kind of as-applied challenge, one of the virtues of it would be that the remedy at the end of the day would not be to strike the statute down on its face, but it would be an injunction consistent with the teaching of this Court..."
In rebuttal, the petitioner pressed the Court to find the entire law unconstitutional because "it imposes a range of burdens on people from quite severe to less severe, and those burdens vastly outweigh ... any incremental state interest that is being served." Justice Scalia closed the session questioning this rationale: "[I]f you want to talk about increments, why shouldn't we also ask whether ...the remedy for the inconvenience to a small number of people is to wash away the whole statute, which in most of its applications is perfectly okay?"
Shortly before the arguments, an Indiana paper published an article revealing that one of the individuals highlighted by opponents to Indiana's Voter ID law is illegally registered in two states. The woman had attempted to vote in Indiana in 2006 using her Florida driver's license. When the poll workers refused to let her vote on a regular ballot, she declined to vote using the provisional ballot. Her story was highlighted in the brief by the Brennan Center.
2. "Voter IDs Are Not the Problem"
American University's Center for Democracy and Electoral Management released a study that found, based on a survey of registered voters in Indiana, Maryland and Mississippi that only 1% of registered voters lacked a photo ID. In Indiana alone the percentage was only .3%. It also found that over 2/3 of the respondents felt "the U.S. electoral system would be trusted more if voters were required to show a photo ID."
3. Media Responses to the Indiana
Case
There has been a swarm of media attention to photo voter ID in light of the Crawford case.
John Fund has another excellent piece defending Indiana's Voter ID law. He concludes, "In 2006, the court unanimously overturned a Ninth Circuit ruling that had blocked an Arizona voter ID law... The court also noted that fraud ‘drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.'...So the high court itself has already defined the nub of the case it is hearing today...Given the obvious political nature of the argument, here's hoping a clear Supreme Court majority reprises its 2006 finding and holds that such questions are best resolved by the elected branches of government and not by unaccountable courts."
One piece by Robert Bluey supportive of the statute was recently published on townhall.com. Bluey concludes "If the United States is to set an example for the rest of the world, we must maintain the integrity of our electoral process. This case should be a slam dunk for the Supreme Court."
Here are the recent stories from the Indianapolis Star, the Washington Post, the Washington Times, and the New York Times. Comments from Indiana Secretary of State are available here.
Check the Lawyers Democracy Fund blog for further updates.
4. Continued Attacks on Vote Fraud Preventing Legislation
A federal district court in Florida enjoined the state from enforcing its two-year old voter registration law that requires that Social Security and driver's license numbers match records in federal and state databases. The judge asserted that there was evidence of "actual harm to real individuals" while the Secretary of State Kurt Browning said the state will appeal and "questioned the timing of the decision." Florida's primary is on January 29th. Residents had to register by the end of December to vote.
The Brennan Center, one organization challenging the Florida law, mounted a similar challenge in Washington in November 2006. The Evergreen Freedom Foundation examined the negative impact of such legislation in their report "Election Security Under Fire."
6. A Solution to Concerns Over Electronic Ballots?
The New York Times editorial page offered an interesting solution to the growing concerns over verifying ballots cast on electronic voting machines. In the wake of states decertifying machines, two election law experts have proposed that voters be sent home with a photocopy of a randomly selected ballot with a serial number, which, following the election, they could check online to see if the ballot was voted correctly. By handing out random ballots, the system would avoid vote buying by union bosses or the like. Relying on serial numbers would protect the secret ballot. "[U]nder the system proposed by Professor Rivest and Dr. Smith, should corrupt poll workers "forget" to count some ballots, people would notice and complain."
7. Notes from the States
Missouri: The St. Louis Dispatch reports "8 Charged in StL Voter Fraud." The eight volunteers for ACORN were indicted for instances that occurred during 2006 elections.
Tennessee: The Tennessean.com reported "Computer Heist Puts Voter IDs in Danger." They stole a laptop containing voter registration information - names, address, phone numbers, the last four digits of Social Security numbers - of 337,000 people. Investigators are apparently blaming a security guard for failing to prevent the break-in.
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There has been a swarm of media attention to photo voter ID in light of the Crawford case.
John Fund has another excellent piece defending Indiana's Voter ID law. He concludes, "In 2006, the court unanimously overturned a Ninth Circuit ruling that had blocked an Arizona voter ID law... The court also noted that fraud ‘drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.'...So the high court itself has already defined the nub of the case it is hearing today...Given the obvious political nature of the argument, here's hoping a clear Supreme Court majority reprises its 2006 finding and holds that such questions are best resolved by the elected branches of government and not by unaccountable courts."
One piece by Robert Bluey supportive of the statute was recently published on townhall.com. Bluey concludes "If the United States is to set an example for the rest of the world, we must maintain the integrity of our electoral process. This case should be a slam dunk for the Supreme Court."
Here are the recent stories from the Indianapolis Star, the Washington Post, the Washington Times, and the New York Times. Comments from Indiana Secretary of State are available here.
Check the Lawyers Democracy Fund blog for further updates.
4. Continued Attacks on Vote Fraud Preventing Legislation
A federal district court in Florida enjoined the state from enforcing its two-year old voter registration law that requires that Social Security and driver's license numbers match records in federal and state databases. The judge asserted that there was evidence of "actual harm to real individuals" while the Secretary of State Kurt Browning said the state will appeal and "questioned the timing of the decision." Florida's primary is on January 29th. Residents had to register by the end of December to vote.
The Brennan Center, one organization challenging the Florida law, mounted a similar challenge in Washington in November 2006. The Evergreen Freedom Foundation examined the negative impact of such legislation in their report "Election Security Under Fire."
6. A Solution to Concerns Over Electronic Ballots?
The New York Times editorial page offered an interesting solution to the growing concerns over verifying ballots cast on electronic voting machines. In the wake of states decertifying machines, two election law experts have proposed that voters be sent home with a photocopy of a randomly selected ballot with a serial number, which, following the election, they could check online to see if the ballot was voted correctly. By handing out random ballots, the system would avoid vote buying by union bosses or the like. Relying on serial numbers would protect the secret ballot. "[U]nder the system proposed by Professor Rivest and Dr. Smith, should corrupt poll workers "forget" to count some ballots, people would notice and complain."
7. Notes from the States
Missouri: The St. Louis Dispatch reports "8 Charged in StL Voter Fraud." The eight volunteers for ACORN were indicted for instances that occurred during 2006 elections.
Tennessee: The Tennessean.com reported "Computer Heist Puts Voter IDs in Danger." They stole a laptop containing voter registration information - names, address, phone numbers, the last four digits of Social Security numbers - of 337,000 people. Investigators are apparently blaming a security guard for failing to prevent the break-in.
More new features than ever. Check out the new AOL Mail!