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National Issues

The Court Decides to Consider Voter ID: Good Grounds to Worry on the Morning After PDF  | Print |  Email
By Bob Bauer   
September 26, 2007

This article was posted at Bob Bauer's Blog and is reposted here with permission of the author.


It is simply not gratifying to observe the Supreme Court grabbing the reins and riding off to settle the voter identification quarrel in a hurry. The Seventh Circuit decision authored by Richard Posner that it will review is unfortunate in a number of respects: a correction from the Supreme Court, affirming the importance of the right to vote, would be welcome. But to assume that Posner will be corrected on this point, but that nothing unexpected and harmful will come of the rest of the Court’s review, is to assume a great deal. 


Let's assume that the Court—the same Court that decided Purcell v. Gonzalez — decides that Posner's reasoning went too far and that it should be clear that a) voting matters, and b) states must develop more rigorous rationales for imposing ID requirements in the name of voting security. The first should be easy; the second will turn heads, but on second look, the Court could ask for a little more care but not much, effectively giving voting rights advocates opposed to ID requirements the rhetorical victory but no chance of winning the war. The Court could explain what is needed, which is not to say that it will come to grips meaningfully with the issue on the spare record before it, or show much solicitude for the voters most disadvantaged by ID requirements like those enacted in Georgia or Indiana.


Posner is the easy target, in other words:  on the best case analysis, he went way too far, and the Seventh Circuit is an easy mark for a Court wishing to score a point for compassion without adopting a test that makes it count in practical terms. The advocates for ID requirements are most on the defensive when defending Posner; they are, on other fronts, on comfortable grounds and well-prepared. The course of events in the Georgia litigation demonstrates that they can also learn from experience, implementing measures to absorb some portion of the cost to voters of acquiring the IDs and sanitizing the ID effort sufficiently to survive judicial challenge. Of the two camps gathering to present arguments to the Court, the ID movement is the one with the immediate history of success with the issue, and the fact that Judge Posner served up the case in its most unappetizing form, does not rob those on his side of the issue of other, superior arguments they can press on the Court.


Rick rightly sees an opportunity for the Court to affirm the right to vote.  But he is more ambitious than that, more hopeful and, it could be said, trusting. Hasen argues that the Court can provide "guidance" but he wants more; he wants standards, so that the guidance is protective. The parameters he lays out for those standards show that the scope of protection they guarantee could prove weak.


On the justification for ID enactments, Hasen would ask for "actual evidence" for fraud, but he would settle for a showing of "serious potential" for fraud. Posner would say that legislatures could very reasonably conclude that there is such "serious potential." Then, once an ID requirement is established, Hasen would ask that the state pay "all costs" of acquiring approving ID and that voters with limited means be "accommodated " when encountering difficulties in obtaining the needed documentation. But on virtually any accounting, there will be some costs, and so the question is how much cost should the voter be expected to bear; and what, for that matter, constitutes an acceptable "accommodation." If this is where the argument settles, it is not clear why Rick should expect an outcome to his liking. 


The recent Georgia trial court decision, finding that the state had done what was required to meet the needs of low income or minority voters, offers a clue to where this may all lead. The judge there was satisfied that the state was aware of burdens on these voters and responded to them:  this was more or less all he needed to hear. The state did something; it made some provision for the poor voters, and if this meant that they had to hitch a ride, or travel some distance, or herd their children along with them, at least there was some accommodation.


The problem with the ID argument, once it moves to these considerations, is that it travels away from what to its critics is so offensive about it.  As the dissent states in the Seventh Circuit case, it is clear that certain communities of voters were targeted not because they were possibly ineligible to vote, but because of whom they voted for—because they favored, overwhelmingly, candidates for one party rather than another. This targeting is ignored by Posner; it may be ignored as well by the Supreme Court, if the Purcell case is any guide. This is the heart of the matter, though, is it not?: that voters were subject to regulation to reduce the incidence of voting, when there is no evidence that illegal voting is occurring but lively concern on the part of the law's drafters about whom these voters are casting their ballots for.


Now the issue will be joined in the Supreme Court on terms not favorable to the ID movement's critics—not favorable in the composition of the Court, not favorable in the ready quality of the case they need to make. Other than in the criticism of Posner's theoretical excesses, the momentum does not lie obviously with this side of the case. Which is not to say that it cannot be "won," if opponents of the ID movement are realistic about what winning would mean, and creative in the fashioning of arguments better than the ones failing across the country. 

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