Partisan Fissures Over Voter ID
Tuesday, December 25, 2007
The Supreme Court will open the new year with its most politically divisive case since Bush v. Gore decided the 2000 presidential election, and its decision could force a major reinterpretation of the rules of the 2008 contest.
The case presents what seems to be a straightforward and even unremarkable question: Does a state requirement that voters show a specific kind of photo identification before casting a ballot violate the Constitution?
The answer so far has depended greatly on whether you are a Democratic or Republican politician -- or even, some believe, judge.
"It is exceedingly difficult to maneuver in today's America without a photo ID (try flying, or even entering a tall building such as the courthouse in which we sit, without one)," Circuit Judge Richard A. Posner, a Ronald Reagan appointee, wrote in deciding that Indiana's strictest-in-the-nation law is not burdensome enough to violate constitutional protections.
His colleague on the U.S. Court of Appeals for the 7th Circuit, Bill Clinton appointee Terence T. Evans, was equally frank in dissent. "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic," Evans wrote.
For justices still hearing from the public about their role in the 2000 election -- "It's water over the deck; get over it," Justice Antonin Scalia impatiently told a questioner at a college forum this year -- the partisan implications of the issue are hard to miss.
The case has pitted Democrats against Republicans, conservative legal foundations against liberal ones, civil rights organizations against the Bush administration.
"Voter ID laws have become the most politicized" of governments' efforts to try to limit fraud and voting irregularities, said Richard L. Hasen, an election-law expert at Loyola Law School in Los Angeles, who filed a brief supporting the law's challengers. "It's in the nation's best interest for the court to resolve it."
Hasen is one of those who point out that the partisan division on voter ID laws often extends to the judiciary. Not only did the 7th Circuit's 2 to 1 vote to uphold Indiana's law break down along the lines of which party nominated the judges; so, with one exception, did the full court's decision not to reconsider the ruling. Michigan's Supreme Court justices -- who are elected in partisan races -- upheld that state's voter ID law, with the five Republicans voting to support it and the two Democrats opposing it.
Hasen does not believe that the decisions reflect a desire to aid one political party over another, but rather a philosophical divide on the question of whether protecting the integrity of the voting process from fraud is of equal or greater value than making sure as many eligible voters as possible take part in the process.
"People come in with a worldview, and judges are no different," Hasen said.
The Indiana case seems to offer a perfect example. The state's Republican-led legislature passed the law in 2005 requiring voters to have ID, even though the state had never prosecuted a case of voter impersonation.