There’s no shortage of analysis on the Supreme Court’s ruling striking down a challenge to Indiana’s law that requires voters to present a government-issued photo ID in order to cast a ballot. Some of it correct. Some of it not. But somewhere El Paso County Clerk and Recorder Bob Balink is smiling.As Colorado Confidential reported in February, state GOP lawmakers — encouraged by Clerk Balink and Secretary of State Mike Coffman — attempted to pass similarly strict legislation. One bill requiring citizens to provide proof of citizenship when registering to vote and another, like Indiana’s law, to show government-issued photo identification before being allowed to vote. Both bills died in committee.
Without any data showing that people are illegally casting votes, opponents have often described largely Republican-led efforts to install proof-of-citizenship requirements to vote a “solution in search of a problem.”
In 2006, Balink published, courtesy of El Paso County taxpayers, a newsletter that contained a letter to constituents demanding to know, “Where’s the outrage?” and likening illegally voting to the “threats” of gay marriage and people trying to take the “Christmas” out of Christmas trees.
This year, Balink hasn’t been making such rhetorical comparisons. But he is still among the chief proponents of requiring people to prove citizenship and provide photo IDs before voting. Last week, he testified to the legislative committee that an informal, unscientific poll he conducted in his office showed that 97 percent of the people who responded agreed with him.
And, to his hometown daily, Balink has indicated that, “while he would prefer the Colorado Legislature pass a law, he is willing to unilaterally enact the policy in El Paso County to spark a lawsuit that would put the issue in front of a judge.”
Currently, Colorado allows voters to produce a wide variety of identification proof, including util ity bills, bank statements, certified birth certificate or photo ID.
With just six days remaining in the 2008 Colorado legislative session, it’s highly unlikely that Republican voter ID proponents could muster the political will to re-introduce the measure. However, the Supreme Court’s ruling will most certainly reinvigorate the issue as a conservative rallying point heading into the election season.
And with such a political hot potato, misinformation — both intended and not — has made its way into rushed press reports.
The Indiana law was not found to be constitutional
U of Miami law professor Michael Froomkin is careful to make the distinction that the opinion does not find that the voter ID requirement is constitutional — only that it is not unconstitutional.
Froomkin writes on his blog, Discourse.net:
Today’s Supreme Court opinion striking down the first set of challenges to Indian’s voter-ID law will probably create an electoral nightmare, and will probably disenfranchise many voters – although how many is disputed. It’s highly likely that those voters – maybe even tens or even conceivably hundreds of thousands of them – would mostly vote Democratic, at least if they voted their pocketbooks, since they are overwhelmingly likely to be poor. Voters without ID will only be allowed to cast provisional ballots, and will have to appear within 10 days with an ID or with an affidavit explaining why they don’t have one. In practice, few if any of these provisional ballots will ever be counted.
But while the opinion may be an electoral nightmare, three things keep it from being the doctrinal nightmare that it could have been: the procedural posture, some of the facts, and the fractured nature of the opinions. Unfortunately, this case is going be spun as holding that “Voter ID laws are constitutional” when in fact it holds only that they are not per se unconstitutional.
Procedurally, this was a facial challenge to the statute. A facial challenge is one where the plaintiffs argue the statute is invalid by its nature and should not be applied to anyone. Rejection of a facial challenge means that it is still open to individual plaintiffs or groups of plaintiffs to explain how the law discriminates unfairly against them given their particular circumstances and should not be applied to them. That’s why the three most conservative Justices wrote separately: they wanted to prevent future fact-based challenges. And on this, they failed.
The barriers of photo ID laws for minority, poor and elderly voters are very real
Supporters of the Indiana law claim that the harms are overstated.
At an American Constitution Society for Law and Policy panel held last fall before Crawford v. Marion County Election Board was heard by the court, voting rights expert Julie Fernandes discussed her concerns about the potential for disenfranchising voters without photo IDs.
The political stakes — past and present — of institutional voter disenfranchisement
Political author, journalist and blogger Rick Perlstein (by way of Digby) wrote nearly a year ago of historic GOP efforts to trim voter rolls of likely Democratic Party supporters by any means necessary:
The “vote fraud” fantasies are tinged by deeply right-wing racial and anti-urban panics. I’ve talked to many conservative who seem to consider the idea of mass non-white participation in the duties of citizenship is inherently suspicious. It’s an idea all decent Americans should consider abhorrent. It is also, however, a very old conservative obsession — one that goes back to the beginnings of the right-wing takeover of the Republican Party itself.
Let me show you. Read this report from 1964, running down all the ways how Barry Goldwater’s Republican Party was working overtime to keep minorities from voting. The document can be found in the LBJ Library, where I researched my book Before the Storm: Barry Goldwater and the Unmaking of the American Consensus.
Adam Bonin at DailyKos sarcastically raises the “Hollywood defense”:
…no one’s ever tried to commit voter fraud like this, but they’ve done it some other way, and, um, what’s that historical answer?
“One infamous example is the New York City elections of 1868. William (Boss) Tweed set about solidifying and consolidating his control of the city. One local tough who worked for Boss Tweed, “Big Tim” Sullivan, insisted that his “repeaters” (individuals paid to vote multiple times) have whiskers:
‘When you’ve voted ’em with their whiskers on, you take ’em to a barber and scrape off the chin fringe. Then you vote ’em again with the side lilacs and a mustache. Then to a barber again, off comes the sides and you vote ’em a third time with the mustache. If that ain’t enough and the box can stand a few more ballots, clean off the mustache and vote ’em plain face. That makes every one of ’em good for four votes.’ — A. Callow, The Tweed Ring 210 (1966) (quoting M. Werner, Tammany Hall 439 (1928)).”
Yes, America, they’re using Gangs of New York to justify this.
Tuesday’s editorial in the New York Times also reminds us of the true stakes of the court’s decision — some voters are more equal than others:
Hovering over Monday’s decision was a case that was not mentioned: Bush v. Gore. In 2000, the Supreme Court took seriously the claims of one individual — George W. Bush — that his equal protection rights were being denied by a state election system, and the court had no hestitation [sic] about telling the state what to do.
On “60 Minutes” on Sunday, Justice Scalia yet again told the public to “get over” that ruling. There are many good reasons to remember Bush v. Gore, and Monday’s ruling was a reminder of one of them. Seven years after it invoked the Constitution to vindicate what it saw as Mr. Bush’s right to fair election procedures, we are still waiting for the court to extend this guarantee with equal vigilance to every American.