Strict scrutiny for Indiana, and democracy for us

Wisconsin Democrats stonewalled Republican attempts to bring AJR17 (photo ID amendment) to a vote yesterday, despite the dramatic fanfare of a GOP press conference that went down in flames.  But a voter ID debate of greater import is raging right now in the uppermost echelons of our nation’s government, as the Supreme Court deliberates the constitutionality of Indiana’s voter ID requirement, which is one of the strictest in the nation.

The New York Times recently reported that the Justices might not overturn the law, despite the slew of amici (including ACORN, the ACLU, the NAACP, and Senator Feinstein and other lawmakers considerably involved in the creation of HAVA), who have filed briefs in support of the petitioners that include some of the best research available on voter “fraud”.  From the Times:

The justices’€™ questioning indicated that a majority did not accept the challengers’€™ basic argument ‘€” that voter-impersonation fraud is not a problem, so requiring voters to produce government-issued photo identification at the polls is an unconstitutional burden on the right to vote.

If you can’t prove a negative, does it automatically make it true?  The 67-page report from the MPD this week and all the other reports of voter “fraud” be damned.  Republicans have exploited and ridden on the politically convenient premise that voter fraud is “just too difficult to prosecute”, all the way to the Supreme Court.  In constitutional analysis, statutes under judicial review receive strict scrutiny when they burden fundamental rights.  No right could possibly be more fundamental to democracy or to the functioning of a citizen than the right to vote.  And with the resounding lack of evidence of voter fraud to date, a Court that resorts to anything less than strict scrutiny in its review is doing nothing more than accommodating the faulty arguments of the GOP.

Under strict scrutiny, statutes that burden fundamental rights must be narrowly tailored to acheive a compelling state interest, by the least restrictive means possible.  The conceivable “compelling state interest” in this case, respondents would contend, is the preservation of electoral integrity.  But certainly, governments must also corroborate the importance of their interests with evidence, lest controlling parties become accustomed to invoking dubious “interests” on a whim with constitutional impunity.

In the absence of such justifications, a statute will inevitably fail to pass constiutional muster.

Circuit Judge Evans stood up for strict scrutiny when Crawford v. Marion County Board was heard in the US 7th Circuit Court of Appeals (read the entire opinion and his dissent here): 

The fig leaf of respectability providing the motive behind this law is that it is necessary to prevent voter fraud … But where is the evidence of that kind of voter fraud in this record? … Nationwide, a preliminary report to the U.S. Election Assistance Commission has found little evidence of the type of polling-place fraud that photo ID laws seek to stop. If that’s the case, where is the justification for this law? Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table? I think not.

As I read it, strict scrutiny may still be appropriate in cases where the burden, as it is here, is great and the state’s justification for it, again as it is here, is hollow.

The Supreme Court should gut the law.  Justice Ginsburg was as willing as Evans to call out the real motives behind Indiana’s voter ID statute when she said in oral argument, “The reason they are bringing a facial challenge is because the horse is going to be out of the barn … They will have the election, and just what they are afraid of could happen ‘€” that the result will be skewed in favor of the opposite party.’€

But Scalia, as incoherent and gregarious as ever, chided instead, ‘€œWhy are we arguing about whether there is one-half of one percent of the electorate who may be adversely affected and as to whom it might be unconstitutional?’€

Right.  What are we, the Supreme Court or something?

This from the guy who literally told us to “get a life” after we questioned his impartiality in a case involving his hunting buddy Dick Cheney.  Please, Scalia – get a job.

Keep Crawford v. Marion County Board in your sights.  The law will bomb if it faces a strict scrutiny challenge.  And we can finally put the voter ID debate to rest in Wisconsin, and focus on overhaul of SVRS and other areas of the system that need help the most – rather than punishing voters.

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