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A Voting Test for the High Court

By Richard L. Hasen
Wednesday, September 19, 2007

At a private conference next Monday, the Supreme Court will consider whether to hear a challenge to Indiana's new law requiring voters to show photographic identification at the polls. The court should take the case, both to correct a troubling partisan divide among lower-court judges over the constitutionality of such laws and to reject a pernicious opinion by federal Judge Richard A. Posner that belittles the right to vote.

It is no secret that a partisan divide over election administration has emerged since the 2000 Florida debacle. Republican state legislators push for laws that they say will prevent voter fraud, and Democratic legislators push for laws they say will prevent voter intimidation and remove barriers to voting. Every state legislature that has passed a voter identification law since 2000 has done so along party lines.

Less well known is that a partisan divide has also emerged in the courts. The Michigan Supreme Court, for example, recently voted 5 to 2 to uphold that state's voter identification law, with all five Republican justices voting to uphold and both Democrats concluding that the law is unconstitutional.

That vote came on the heels of the decision by the U.S. Court of Appeals for the 7th Circuit regarding the Indiana law. Democrats and the American Civil Liberties Union argued that Indiana's law, passed by the state's Republican-controlled legislature, would have a disparate impact on the poor and minorities, who are least likely to have proper voter identification or to be able to afford the documentation (such as a certified copy of a birth certificate) necessary to procure it. Although the law allows someone to file an "indigency affidavit" in lieu of producing ID, the process is burdensome. A poor voter in Gary, for example, would have to cast a provisional ballot at a polling place, then make a 30-minute car trip within 10 days to file an affidavit in the county seat. There's no public transportation or government subsidy available to help the voter get there.

Indiana has conceded that there have been no cases in state history of voter impersonation that an ID law would have prevented. While there is a history of voter fraud through absentee ballots, such ballots -- often favored by Republicans -- were not covered by the new law.

A three-judge panel of the 7th Circuit split: The two Republican-appointed judges voted to uphold the law and the one Democratic appointee dissented. When the entire 7th Circuit considered whether to rehear the case, the court again split, almost perfectly along party lines.

Judge Posner's majority opinion declared the benefits of voting "elusive," given the small chance that one could cast a decisive ballot in an election, and he analogized voter fraud to the crime of "littering." He did not discuss at all the burdens the law placed on indigent voters. Posner did not care that Indiana produced no evidence of voter fraud by impersonation. He said such fraud occurred in other states but failed to support this claim with any evidence. And a federal district court in Georgia relied on Posner's opinion in ruling Sept. 6 that the state did not need to produce any evidence of voter fraud to justify its new voter ID law.

Posner regarded it as important that the plaintiffs did not produce any voters who claimed to be disenfranchised by the law. Plaintiffs did submit a report from a political scientist showing that such disenfranchisement would occur, but they were denied the chance to prove the claim in a trial.

I don't believe that the judicial partisan divide reflects a conscious attempt by judges to benefit their political parties. Rather, judges come to these cases with the same partisan worldviews as the rest of us about the credibility of voter fraud and vote-suppression claims.

By hearing the Indiana case, the Supreme Court can help lower courts escape this divide by providing clear guidance on how to balance competing claims about voter fraud and disenfranchisement. The court can also use the case to reaffirm the importance of the right to vote. The justices should hold that in the absence of evidence of actual impersonation fraud or serious potential for fraud at the polls, states cannot pass voter ID laws that place onerous burdens on the poor or anyone else. If states want to require ID, they must pay all the costs of a voter identification program and accommodate those who cannot obtain necessary supporting documents through no fault of their own.

Many accused the Supreme Court of partisanship in deciding Bush v. Gore, and some voting rights advocates fear that the court could make things worse if it takes the Indiana case. Perhaps, but this case gives the court the opportunity to prove that when it comes to issues of election administration, it is ready to stand up for the right recognized in Bush v. Gore to be free of "arbitrary and disparate treatment" in the administration of elections.

Richard L. Hasen, a professor at Loyola Law School in Los Angeles, writes a blog on election law athttp://electionlawblog.org.

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