Friday, September 28, 2012

Voter ID: The Supremes coming soon?



THE FRACTIOUS year-long to-and-fro underway over the future of voter ID laws in several states faces a rock-hard deadline: The next presidential election is 39 days away. And a string of decisions by lower courts indicates voter ID laws recently enacted or those being challenged by civil rights orgs are very much in play in some important states:

A U.S. District Court judge issued an injunction against Ohio’s “wrong precinct” law on Aug. 27, ruling that the state can't purge provisional ballots because of poll-worker errors.

On Aug. 28, three U.S. District Court judges blocked Texas’ redistricting plan, citing undue racial impact. The judge ruled that the state “failed to carry its burden” showing that redistricting plans “do not have the purpose or effect of denying or abridging the right to vote no account of race, color, or membership in a language minority group under Section 5 of the Voting Rights Act.”

On Aug. 29, a federal judge permanently blocked Florida’s more restrictive rules on third-party voter registration groups — a big win for such grassroots orgs as Rock the Vote and the League of Women Voters. The next day, a federal judge blocked Texas’ voter ID law in full, saying the law places “strict, unforgiving burdens on the poor.”

And on Aug. 31, a U.S. District Court Judge overturned the provisions of Ohio’s voter ID law that curbed early voting, saying that early voting “places all Ohio voters on equal standing.”

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Some or all of these states — headed by Republican governors and generally dominated by Republican legislatures — are likely to appeal the flurry of last month’s rulings. And new voter ID laws, restrictive  changes to other extant laws, and bills in committee face legal challenge or civic pushback in other states. Result? A disjointed, piecemeal process of debate and resolution, with a potentially ruinous national outcome on Nov. 6.

A new study, released on Monday, points to how bad things could get. The study by The Advancement Project, a civil-rights advocacy organization, found that more than 10 million eligible Latino voters in 23 states “could be deterred or prevented from voting in the 2012 elections” because of new voter IDs laws already laid down or in the works.

According to a recent report by the Brennan Center for Justice, as many as 5 million voters could be barred from voting in November because of the new laws, which critics say unfairly burden poor and minority Americans.

It’s time to put it back out there: If the issue of voter ID laws in the various states can’t be resolved by lower courts in the coming weeks, and with the results of a presidential election possibly in the balance, there’s one recourse left: A petition to advance and be heard by the U.S. Supreme Court, in pursuit of what would amount to the ultimate American class-action lawsuit.

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OUT OF the question? Not necessarily. The logistics would seem to be workable: The Court, which reconvenes on Monday (the first one in October), would have a full plate from the jump, as they always do, but there’d be time to consider and rule on the constitutionality of any of these laws, on an expedited or emergency basis, well before the vote on Nov. 6.

Rather than take on all such laws in 23 states, the Court might focus on two or three states whose electoral-vote weight could make them the deciders in a close election (say, Florida, Ohio and/or Pennsylvania).

And there’s precedent. If the Supremes decided to make a ruling, it wouldn’t be the high court’s first constitutional rodeo at the level of a presidential election. As we all know.

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Wading into the current voter ID matter, the Court would almost certainly invoke a previous decision as a jumping-on point for everything from opening arguments by opposing counsel to the Court’s final, private deliberations.

That earlier decision, William Crawford v. Marion County Election Board, 553 U.S. 181 (2008), was the Court’s ruling on the constitutionality of SEA 483, a 2005 Indiana law that required all in-person voters to show either United States or Indiana photo identification. Under the law, voters without photo ID could cast provisional ballots, but for their votes to be accepted, they’re required to visit the circuit court clerk within 10 days with the required photo identification.

The Court decided that the law did not violate the U.S. Constitution. “Each of Indiana’s asserted interests is unquestionably relevant to its interest in protecting the integrity and reliability of the electoral process,” read part of the opinion.

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THE PARALLELS between the Indiana’s law and the recent rash of voter ID laws and measures are striking: In the case of the Indiana law, much like the ones now being debated and argued elsewhere, the defendants couldn’t offer any proof that the voter fraud that was the impetus for the law even existed — couldn’t prove that the law was anything more than a solution in search of a problem.

And the plaintiffs apparently couldn’t show, with witnesses, that the law’s new requirements were too much of a burden to perform.

But two factors would seem to undercut the Court invoking Crawford as rationale for a future decision: The scope of the current voter ID laws and measures, and the timing of their implementation, deserve the highest judicial scrutiny for their possible collective impact on the voting process now, at the national level, weeks before the next presidential election. Simply put, the stakes couldn’t be higher.

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In his majority opinion upholding the Indiana law, Justice John Paul Stevens (who retired in 2010) said that burdens placed on the state’s voters by SEA 483 would be limited to a small percentage of the population, and were offset anyway by the state’s legitimate, self-protective interest in curbing voter fraud.

From the syllabus: “Finally, Indiana’s interest in protecting public confidence in elections, while closely related to its interest in preventing voter fraud, has independent significance, because such confidence encourages citizen participation in the democratic process.”

But when writ large on a national canvas, if the states’ zeal in protecting confidence in elections is meant to encourage citizen participation, what happens when citizens have no confidence in the state governments conducting the elections? With the potential for millions of citizens unable to vote on the basis of what appears to be coordinated political partisanship, Crawford can hardly be used as a template to resolve a possible disenfranchisement on a national scale.

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IN HIS concurrence with Justice Stevens, Justice Antonin Scalia betrays a preference for deferring to local lawmakers: “It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class,” he writes.

But in its rejection of Texas’ voter ID law, judges relied in part on the fact that Texas is covered under the “preclearance” provisions of Section 5 of the 1965 Civil Rights Act, which requires new voting rules to be “precleared” by the Justice Department before they go into effect.

“A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote,” the opinion said. “Simply put, many Hispanics and African Americans who voted in the last election will, because of the burdens imposed by [the Texas law], likely be unable to vote in the next election.”

That would seem to satisfy Justice Scalia’s threshold of disadvantage to “a particular class,” a likely disadvantage beyond Indiana or Texas.

And Justice Scalia’s opinion presupposes the incremental incidence of such actions by state legislatures — changes to states’ election codes periodically, and on a piecemeal basis — as a foundational condition for upholding Indiana’s voter ID law.

The overwhelmingly comprehensive effort by Republican legislatures across the country to jam through voter ID laws now, in advance of the election — and sometimes against the logistical advice of state and local election officials themselves — suggests “a severe and unjustified overall burden upon the right to vote.”

Hypothetical? That’s not disqualifying: The potential of that burden’s existence shouldn’t carry any less weight among the Justices than the potential for voter fraud that led to the laws in the first place.

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THE OTHER matter, the timing of these laws, is a dicier thing for their champions to defend. The inconvenient problem of a virtual absence of the voter fraud the laws are intended to prevent is lashed to another one: the lack of time to properly implement the laws.

“Pennsylvania is a case study in how not to do this,” argued David Gersch, lead counsel for the plaintiffs, before that state’s Supreme Court. “There’s too little time, too many people affected, no guarantee every qualified elector can cast a ballot.” The plaintiffs include the American Civil Liberties Union and the Advancement Project.

Without evidence of the voter fraud that motivated the law, the urgency for the law’s immediate enactment disappears. That wasn’t lost on the Pennsylvania Justices, some of whom observed that the Pennsylvania Bar Association suggested the voter ID law be put in place over the course of two federal election cycles, Ari Berman of The Nation reported on Sept. 13.

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Also, the Asian American Legal Defense and Education Fund and the Asian Pacific American Bar Association of Pennsylvania have announced support for a lawsuit to block the law, according to the Asian Week news Web site. In a statement, the groups opposing the Pennsylvania law present a compelling argument that’s been previously unexamined:

“Although much attention has been given to African American and Latino voters these laws may have an even greater affect on Asian American voters. Pennsylvania’s new voter ID law is being challenged on just that idea. Due to the diversity of language, foreign name structure and customs, voter rolls are frequently fraught with clerical errors that could cause legally registered voters to be turned away at the polls.”



The absence of real urgency wasn’t lost on Pennsylvania Supreme Court Justice Debra McCloskey Todd, either. Earlier this month, Justice Todd asked Assistant State Attorney General John Knorr two questions, one of them devastatingly simple. “What’s the rush? Would it be better if we had two years and not fifty-five days?”

“It would be better,” Knorr said.

Knorr’s frank admission doesn’t help the state’s case. Neither does the nakedly partisan statement of Republican objectives made on June 23 by Republican House Majority Leader Mike Turzai: “Voter ID, which is going to allow Governor Romney to win the state of Pennsylvania — done.”

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THE SUPREMES established precedent on impacting presidential election outcomes with Bush v. Gore, the ruling that determined the 2000 election, literally ushering in a profound change in the political and economic course of the United States.

The difference between that case and the wave of voter ID laws and bills sweeping the nation is important: If SCOTUS were to rule on any of the electorally pivotal voter ID law states, one would expect they’d hand down a ruling before the Nov. 6 election, rather than after, as the court did in Bush v. Gore.

With the teeth-gnashing, chad-hanging experience of that case as a sobering guideline, a SCOTUS ruling on the voting process rather than the outcome of the voting process obviously makes the most sense.

A new Supreme Court ruling on voter ID in the several states of 2012 wouldn’t be a literal revisitation of Crawford, of course, nor would it need to be. A new SCOTUS ruling would implicitly recognize the distinction between the one, isolated case in Indiana and the disturbingly coordinated pattern of voter ID laws and measures rising nationally in the weeks before the next presidential election.

Anyway, it just makes sense that they’ll weigh in: If the Justices felt compelled to rule on voter ID with one state on the line, how could the same matter under consideration in the several states be any less constitutionally important?

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At the end of the day, the Supreme Court may have no choice but to expand on its thinking in Crawford and hand down a decision on changes in voter ID laws as a potentially disenfranchising national phenomenon. Events are moving quickly. Early voting started in Iowa on Thursday; that state joined about 30 other states where voting’s already going on.

And voting in some pivotal states hasn't started yet: Ohio mails absentee ballots and begins early in-person voting on Tuesday, Oct. 2 — the day after the Court reconvenes.

Florida mails its absentee ballots on Oct. 2 and begins its early in-person voting on Oct. 27.

And Pennsylvania begins absentee voting on Oct. 23. No early in-person voting is available in the Keystone State. You have to show up at the polls on Nov. 6.

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ON Thursday, a judge in Pennsylvania said he may allow the state’s voter ID law to stay intact for the election, as he weighs the merits of a narrow injunction focused on provisional ballots, Angela Couloumbis of The Philadelphia Inquirer reported today.

“What I'm thinking is blocking implementation of one specific section that contains disenfranchisement language,” Judge Robert E. Simpson Jr. said from the bench. “The provisional ballot seems to be the sticking point.” The judge, who gave both sides until this evening to present new motions, has until Oct. 2 to decide whether to block the law from taking effect, Couloumbis reported.

Oyez, Oyez, Oyez! Millions of Americans may have business before the Honorable, the Supreme Court of the United States. Whether they’re admonished to draw near and be heard remains to be seen. That process of discovery begins on Monday.

Image credits: Supreme Court: Reuters/Jim Young. Stevens and Scalia: SCOTUS (public domain) Turzai: via youtube. Status of voter ID laws charts, Advancement Project logo: © 2012 Advancement Project. 

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