January 10, 2008
Voter ID: It's A No Brainer
A familiar maxim warns that a lie can travel halfway around the world before the truth can get its pants on. The half vast editorial staff were left ruefully pondering the truth of that dictum early this morning when the perpetually entertaining Ms. Dahlia Lithwick of SlateMag managed to muck up both the facts and the law before we could grab a cup of coffee and clear the cobwebs from our pea-sized brain.
The golden thread that runs through all of Ms. Lithwick's essays on jurisprudence is the distressing propensity of the Evil, Partisan Roberts Court to brutally oppress hapless orroyo toads, fluffy Angora kittens, people of cholor, and transgendered wolves longing to pick out a china pattern and settle down in The Hamptons. But today she warns of a particularly heinous danger lurking in our midst. Shockingly, the Roberts Court is determined to steal something you may not even have known you possessed: your Constitutional Right to vote. Ms. Lithwick reserves this stunner for the last paragraph of her magnum opus:
I fear I am counting five justices who believe that a nonexistent problem can be constitutionally cured by burdening the fundamental right to vote.
There is just one problem with Ms. Lithwick's alarum. The justices are reviewing the constitutionality of an Indiana law, and contrary to her perfervid perorations, the right to vote is not among the rights explicitly guaranteed by the federal Constitution:
The Constitution contains many phrases, clauses, and amendments detailing ways people cannot be denied the right to vote. You cannot deny the right to vote because of race or gender. Citizens of Washington DC can vote for President; 18-year-olds can vote; you can vote even if you fail to pay a poll tax. The Constitution also requires that anyone who can vote for the "most numerous branch" of their state legislature can vote for House members and Senate members.
Note that in all of this, though, the Constitution never explicitly ensures the right to vote, as it does the right to speech, for example. It does require that Representatives be chosen and Senators be elected by "the People," and who comprises "the People" has been expanded by the aforementioned amendments several times. Aside from these requirements, though, the qualifications for voters are left to the states. And as long as the qualifications do not conflict with anything in the Constitution, that right can be withheld. For example, in Texas, persons declared mentally incompetent and felons currently in prison or on probation are denied the right to vote.
Indeed, Salon.com (that reich-wing rag!) managed to do its homework, huffily informing its readers in an article amusingly entitled You Have No Right To Vote that (for the most part) the exercise of the franchise is a matter left to the states:
Last week, a Missouri judge reminded the state Legislature that citizens of the state have a right to vote. And because it is a right, not a privilege granted by the powerful, Missourians can cast their ballots this November without having to meet identification requirements that seemed designed to make it harder for certain people -- the poor, the elderly, minorities and women -- to exercise that right.
That's the good news. The bad news is that this right comes from the Missouri state Constitution. The U.S. Constitution does not explicitly guarantee a right to vote, and our federal courts currently read the document not to include it.
But that's not the only thing Ms. Lithwick gets wrong. She, like most other commentators on the voter ID affair, makes a frankly silly circular argument about the possibility of voter fraud. You see, there is no such thing. And what's more, the mere suggestion is a transparent attempt to disenfranchise Democrats and throw elections to conservatives (in other words, to commit voter fraud). Oddly, the fact that there is even less evidence (by Ms. Lithwick's own admission) for the latter contention than she contends there is to support the former distresses her not one whit, logic being for The Little People:
When Indiana adopted its voter-ID law in 2005—requiring voters to present a government-issued photo ID before casting a ballot—the state purported to be beating back the malodorous tide of vote fraud that was ostensibly sweeping the nation. But as professor Richard Hasen has ably demonstrated here in Slate, this vote-fraud epidemic is largely fictional. The major bipartisan draft fraud report (PDF) on the subject concluded there's very little polling-place fraud in America. So, increasingly, the effort to stop fictional vote fraud looks like a partisan effort to suppress votes that tend to go to Democrats—and somehow, it's always indigent, elderly, and minority voters who are disproportionately affected.
But the "major bipartisan draft fraud report" Lithwick so triumphantly cites studied only voter fraud cases. Let's think about that for a moment, because there are several logical problems with using a study that cites only cases (and cases that got to appeals court, at that) to estimate the number of voter fraud incidents taking place in a general population.
When you drive to work every day, do you ever see people speeding? Of those speeders, how many get caught by the police and pulled over? Of speeders who are pulled over, how many actually received a citation? Of those cited, how many go to court and challenge the citation? Of those, how many cases are dismissed in court for various reasons?
How accurate would it be to use a "study" of cases that made it all the way through the court system to estimate the number people who actually drive too fast? Not very. It's the wrong metric. But there's a more compelling argument, and John Fund makes it:
Opponents of photo ID laws make a valid point that, while Indiana has a clear problem with absentee-ballot fraud (a mayoral election in East Chicago, Ind., was invalidated by the state's Supreme Court in 2003), there isn't a documented problem of voter impersonation. "The state has to demonstrate that this risk of fraud is more than fanciful. And it really isn't," says Ken Falk, legal director for the ACLU of Indiana.
But Indiana officials make the obvious point that, without a photo ID requirement, in-person fraud is "nearly impossible to detect or investigate." A grand jury report prepared by then-Brooklyn District Attorney Elizabeth Holtzman in the 1980s revealed how difficult it is to catch perpetrators. It detailed a massive, 14-year conspiracy in which crews of individuals were recruited to go to polling places and vote in the names of fraudulently registered voters, dead voters, and voters who had moved. "The ease and boldness with which these fraudulent schemes were carried out shows the vulnerability of our entire electoral process to unscrupulous and fraudulent misrepresentation," the report concluded. No indictments were issued thanks to the statute of limitations, and because of grants of immunity in return for testimony.
Even modest in-person voter fraud creates trouble in close races. In Washington state's disputed 2004 governor's race, which was won by 129 votes, the election superintendent in Seattle testified in state court that ineligible felons had voted and votes had been cast in the name of the dead. In Milwaukee, Wis., investigators found that, in the state's close 2004 presidential election, more than 200 felons voted illegally and more than 100 people voted twice. In Florida, where the entire 2000 presidential election was decided by 547 votes, almost 65,000 dead people are still listed on the voter rolls -- an engraved invitation to fraud. A New York Daily News investigation in 2006 found that between 400 and 1,000 voters registered in Florida and New York City had voted twice in at least one recent election.
Laws tightening up absentee-ballot fraud, which is a more serious problem than in-person voting, would be welcome. But, curiously, almost all of the groups opposing the photo ID law before the Supreme Court today either oppose specific efforts to combat absentee-ballot fraud or are silent on them.
No matter how much voter fraud is caused by voter impersonation, Stuart Taylor of the National Journal reports that "polls show voters increasingly distrust the integrity of the electoral process." He also notes that a 2006 NBC/Wall Street Journal nationwide poll found that, by a 80%-7% margin, those surveyed supported voters showing "a valid photo identification." The idea had overwhelming support among all races and income groups.
That sweeping support helps explain why, in 2005, 18 of 21 members of a bipartisan federal commission headed by former President Jimmy Carter and former Secretary of State James Baker came out in support of photo ID requirements more stringent than Indiana's. "Voters in nearly 100 democracies use a photo identification card without fear of infringement on their rights," the commission stated. Mr. Carter feels strongly about voter fraud. In his book, "Turning Point," he wrote of his race for Georgia State Senate in 1962, which involved a corrupt local sheriff who had cast votes for the dead. It took a recount and court intervention before Mr. Carter was declared the winner.
Right now, half the states have decided that some kind of ID should be required to vote. It makes sense for the Supreme Court to allow federalism to work its will state-by-state. In 2006, the court unanimously overturned a Ninth Circuit ruling that had blocked an Arizona voter ID law. In doing so, the court noted that anyone without an ID is by federal law always allowed to cast a provisional ballot that can be verified later. The court also noted that fraud "drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."
If you think a lot of speeders get off scot-free now, imagine how that situation would be compounded if police were prohibited from using radar guns to identify cars that are exceeding the speed limit. Law enforcement is always short handed, and crimes which are difficult to detect will not be enforced. Police have neither the time nor the resources to go after criminals absent clear, convincing evidence that will stand up in court - they are simply wasting their time. To cite the end product - a lack of prosecuted voter fraud cases - in a situation where voting officials are not allowed to check IDs is circular reasoning. Of course the ratio of successfully prosecuted cases to allegations is low: election officials cannot check the only thing that would make successful prosecution possible: a photo ID.
The real damage from our current situation is the loss of public confidence in our electoral process. Just before the last election, Democrats like Nancy Pelosi were openly undermining public confidence in the integrity of the election process and engaging in fear mongering that, according to such right-wing outlets as the New York Times, was keeping blacks away from the polls. Of course when Democrats took the House, her concerns over the integrity of vote counts and the disenfranchisement of minority voters magically vanished overnight. But how many blacks didn't vote because of her outright race mongering? The fact is that in many precincts in 2000, the black vote handed the election to none other than George Bush.
It's time to move to a system that gets race out of the equation and prevents politicians on both sides from demagoguing the issue, undermining public confidence in our elections, and continually challenging election day results.
If you have an ID, you cannot be barred from the polls and if you want to exercise your franchise, it is not too much to ask as a responsible adult that you obtain a voter ID. As Fund pointed out, there are mechanisms in place to ensure those who don't have their IDs retain access to the franchise.
If third world democracies have figured out how to run peaceful elections where voters are only allowed to vote once and must identify themselves, surely the world's greatest superpower follow their example. Some things really are that simple.
Update: By the Beard of the Prophet we are not making this up to disenfranchise Dahlia Lithwick!
Your delicious irony of the day comes from Florida and Indiana. The litigant who is trying to kill off Indiana’s voter ID law ...appears to have broken the law by registering to vote in both Indiana and Florida, and by claiming homestead tax exemption in both states.At the Charlotte County, Fla. voter registration office, Sandy Wharton, vote qualifying office manager, said Ewing registered to vote in Charlotte County on Sept. 18, 2002, and signed an oath that she was a Florida resident and understood that falsifying the voter application was a third-degree felony punishable by prison and a fine up to $5,000. Wharton said her office checked Ewing’s Florida residency and qualified her on Oct. 2, 2002. On Oct. 4, 2002, they mailed her Florida voter card to her, to the West Lafayette, Ind. address that Ewing gave as a mailing address.
However, Ewing didn’t vote in Florida that year, nor has she ever voted in Charlotte County, Wharton said. But, just a month after receiving her Florida voter card, she did vote in the November 2002 elections in Tippecanoe County, Ind., according to Heather Maddox, co-director of elections and registration in Tippecanoe.
Ewing confirmed that she is registered in both states to vote, but at first said the Florida registration came automatically with her driver’s license. She repeatedly denied signing the oath on the Florida application. She also said Indiana mailed her an absentee ballot, but she didn’t use it or vote that year.
However, Heather Maddox, co-director of election registration in Tippecanoe County, said Ewing voted in Indiana in 2002, 2003 and 2004, before the Indiana ID law took effect in 2005.
When informed that the Florida voter office said she’d registered personally in 2002 for a Florida voter card, and that this newspaper had a copy of her application, Ewing said, “Well, why did I do that? I¹m confused. I can’t recall.” She reiterated that, even though she’s registered in two states, she only votes in Indiana, adding that she does have a car plated in Florida.
That doesn’t satisfy Florida officials.
“She can only be registered to vote in the place where she claims residency,² Wharton said. “You can’t be registered in two states. She has to claim one place or the other.”
Can you say "Unclear on the concept", boys and girls?
I knew that you could.
Posted by Cassandra at January 10, 2008 08:34 AM
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Well the vote is not so precious nor such a big deal using the reasoning of those opposed to wanting a validation of who is entitled to make a choice in the election of our representatives, huh? I mean, we've allowed the dead and convicted felons to vote for generations. Sometimes in more than one locale. And insisting on only one vote per citizen, outrageous!/snark
BTW: a little more on this can be seen over at Hot Air.
Posted by: bthun at January 10, 2008 11:49 AM
So asking for ID before excersizing an implied (unenumerated) right to vote, protected only implicitly by the 9th amendment is down right unconscionable.
However, requiring one to submit multiple forms of ID, pass a background check, sign several forms under penalty of perjury to even obtain/keep an "arm", and then have to pay several hundred dollars to take a class, pass said class, and then pay the state a fee to be able to carry/bear that "arm", a right which is enumerated and explicitely protected by the second amendment is just 'merely reasonable'.
Frankly, destroying confidence in one of our most sacred institutions seems a helk of a lot more dangerous to the fabric of society than the proporionally tiny amount of gun accidents*.
*Not to the individual and families that suffer from it, obviously.
Posted by: Yu-Ain Gonnano at January 10, 2008 12:05 PM
You would have thought that, given their vast experience bringing constitutional cases, the Democrat party and the ACLU would have recognized the inherent risks in raising a facial challenge to the Indiana voter id law. The law, "on its face," did not discriminate, but rather applied to all those seeking to excercise the franchise. (Which is actually a privlege granted either by the constitution or statute, rather than being an unalienable right. Just ask any Virginia convicted felon why, although he is still a citizen, he no longer has a vote in the governing of polite and law-abiding society.) Had the plaintiffs allowed the law to be enforced - even once - they might have been able to argue that the law, while facially neutral, was discriminatory in its application or effect. In other words, even though the law applied to all persons attempting to vote, those turned away were disproportionally poor and/or minority citizens, and therefore the effect of the law was discriminatory, even if there was no intent to discriminate.
The boneheads framing this case were evidently too lazy or too blinded by self-righteousness to bother with the drudgery of documenting for the Court any "actual harm" caused by the statute. Without any real harm, the dopes were asking the Court to envision a situation that just might happen to someone somewhere sometime that just might be discriminatory, or at least take the plaintiffs word for it. I can only imagine that the original complaint was filed by some over-eager first year intern and the adults were too embarrassed later to ask the lower Court that they be permitted to amend it. And to Justice Ginsburg's lament that by requiring the plaintiffs to present actual harm necessarily means that "the cow has already left the barn," I can only ask "So what?" Does she mean that it is now the Court's perogative to preempt the ancient and fundamental requirement that some harm exist before it may be remedied? Don't tell me that Justice Ginsberg is so concerned with upholding the sanctity of democratic elections that she would not consider setting the results aside and ordering new ones had impermissable discrimination been proved. I'm still young enough to remember Bush v. Gore, Your Honor, and I think your argument contrived and pandering. Thankfully, chambers hold wiser counsel.
So, anyway, that's my diatribe for today.
Go get your own.
Posted by: spd rdr at January 10, 2008 03:18 PM
Well, I certainly enjoyed the heck out of it :)
But then I always do.
Posted by: Cassandra at January 10, 2008 03:27 PM
According to Justice Kennedy, isn't SCOTUS supposed to seek guidance from the International Court in The Hague before interpreting the US Constitution?
Posted by: a former european at January 10, 2008 09:57 PM
It would seem to me that the only reason for being opposed to having some proof of identity in order to vote would be for those who stand to gain from voter fraud.
A "no-brainer" indeed...
Posted by: camojack at January 11, 2008 01:27 AM
*sigh* This is why I love VC. I get to come here and read with my mouth open. I have missed doing that.
Posted by: Cricket at January 11, 2008 08:47 AM
The Thunder Run has linked to this post in the - Web Reconnaissance for 01/11/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
Posted by: David M at January 11, 2008 11:16 AM
"The law, "on its face," did not discriminate, but rather applied to all those seeking to excercise the franchise. (Which is actually a privlege granted either by the constitution or statute, rather than being an unalienable right. Just ask any Virginia convicted felon why, although he is still a citizen, he no longer has a vote in the governing of polite and law-abiding society.)"
That gets it backwards. Felons don't have a privilege withdrawn, they have a right denied.
Consider the 26th Amendment:
1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
2. The Congress shall have power to enforce this article by appropriate legislation.
That fixes it: citizens have the right to vote, and the government can't deny it on account of age. They can deny it for other reasons.
But it isn't a privelige granted by government, it's a right.
Posted by: ZZMike at January 11, 2008 03:43 PM
A privilege is a subset of a right:
a right or immunity granted as a peculiar benefit, advantage, or favor ; especially : such a right or immunity attached specifically to a position or an office
as opposed to an inalienable right, which cannot ever be abriged:
inalienable : incapable of being alienated, surrendered, or transferred right something to which one has a just claim: as a: the power or privilege to which one is justly entitled
In theory, you have no inalienable voting rights. You start out with the right to vote, but that is subject to conditions laid out by the several states. The fact that the Constitution LIMITS those conditions doesn't change the fact that a state can take away your right to vote if it can get it's citizens to agree to pass a law so stating and that law doesn't conflict with the USC.
Posted by: Cassandra at January 11, 2008 04:01 PM
The right to vote: It's a floor wax AND a dessert topping!!!
Seriously, I do not disagree with ZZMike that voting is more than a mere “privilege” – an imprecise word that implies an authority to be earned and then exercised at will – like driving a car, staying out past midnight, or using the executive washroom. Rather it is, as Cass writes, a conditional “right” acquired by virtue of one’s citizenship and age, subject to forfeiture or surrender, and exercisable only at such times and places, and under such conditions, as may be prescribed by law without abridgment. (Extra credit: Compare and contrast the lawful restrictions placed upon two adult activities: drinking and voting. Now explain how it is that so many more appear to prefer the former over the latter.)
I casually attempted to distinguish voting from other, “inalienable,” rights that result as a condition of being, rather than being conditional. Proposing marriage to Paris Hilton would have been a more advisable comment. But as my efforts resulted in the entirely foreseeable death of many cuddly kittens, I remain unbowed. Fortunately, it also got me to thinking about my – our – precious “rights,” and exactly from where the hell they actually arise.
One of the beauties of our Constitution is that the Framers succeeded in drafting a compact that, except in a single instance****, does not confer a “right” of anything to anyone. The existence of a "right" to vote, like all other constitutionally protected "rights” is implied by the prohibitions the Constitution makes explicit.
For example, "Congress shall make no law ... abridging... the right of the people peaceably to assemble.” "The right of the people to keep and bear Arms, shall not be infringed." "The right of the people to be secure … against unreasonable searches and seizures, shall not be violated." You get the drift. All rights exist, and the only purpose the Constitution serves (outside of the first three Articles) is to prevent the government from taking them away. Kinda.
Look at Fourteenth Amendment. It doesn’t really hold that the right of every male over twenty-one to vote is inviolate. We all know the part that goes “No State shall make or enforce any law which shall abridge the privileges (that word again) or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The “right” to vote is never mentioned, is it? But look at the second section: But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. that’s not even a prohibition Hmmmmm. So the government is prohibited from abridging anyone’s privileges, but when it abridges a person’s right to vote, well, then, No soup for you!
Fortunately, subsequent amendments made it clear that the government can’t deny or abridge a person’s right to vote because of race, and later sex. Somewhere along the line we also got rid of abridgement due to poll taxes. The polls are wide open, ladies and gentlemen. Free beer for everyone (except for those over 18 but under 21).
I suppose that it’s now become too much to ask that those seeking to exercise their “right to vote” at least prove their eligibility to vote by getting a picture taken at the DMV.
But I’ve got a right to. Don’t I?
****Amendment VI states provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” Note how the Framers purposefully grant explicit “rights” only to those whose unalienable rights to life, liberty, and property are in immediate jeopardy. By drawing this “line in the sand” the Framers’ subtlety acknowledged that, in some things, society shouldn’t be trusted to just work it all out later. Absolutely effin’ brilliant, I’d say..
Posted by: spd rdr at January 11, 2008 08:45 PM
Well dang, spd...
If I'd known you were going to weigh in, I'd have spared everyone my lame commentary and waited for the fireworks :p
Posted by: Princess Leia in a Whipped Cream Bikini at January 11, 2008 09:50 PM
Princess Leia in a Whipped Cream Bikini
Posted by: camojack at January 12, 2008 01:30 AM
Once again this site obfuscates the entire issue. You are right that states can set standards...and courts can decide to overturn or appeal those standards to a higher court if they are viewed to be unconstitutional.
The burden of proof of that unconstitutionality is upon the one appealing. Clearly, voter fraud has occurred in our history with both liberal and conservative factions. Democrats and Republicans. The issue at hand is relative to the objective of the powers that be in limiting that right to vote.
Historically you had Sam Giancana helping JFK get elected. Daly in Chicago. Greg Palast wrote extensively about the 2000 election and voter fraud and disenfranchisement by the Republican party in Florida aided by Choicepoint, and the allowance of Diebold to push through Electronic voting machines in 2004 which created many voting improprieties in Ohio, and most recently the voting issues in NH in the Dem Primary.
Many constitutional scholars and those that research voting will tell you that because of the scrutiny on voting machines and vote counts, the only way states (political operatives and lobbyists) will get around this issue is by limiting rights (or amending their state rules regarding voting.
If you read the discussions regarding the Indiana issue, when it is suggested that the state find ways to help citizens get an ID at the voting stations, Scalia et al don't wish to consider how the state might be capable of assisting voters to have the proper ID. Not only that, but they wish to mandate that the only alternative ID is a state voting card, paid to the state, at the county seat. Hell, even DMV has more offices than government. But the original proposal, would not consider delineating the options for citizens in obtaining an ID.
Thus, what you will see is the ACLU, and many other civil rights groups (including Jesse Jackson) to provide IDs for folks who cannot afford them, or have trouble getting them. Watch the state overreact and declare the IDs illegal. However, if these groups simply went to an agency that issued the proper IDs (in CA you can get an ID at the DMV w/o needing to get a DL). I checked and one can obtain and ID card at the Indiana DMV. Just like CA.
This flies in the face of most states in which you can provide one or two bills from your residence and sign an affidavit that you are who you say you are. Sounds simple. Okay, so now folks must get an ID. So what if an ID is expired, but has a photo and correct address?
The intent is clear. Indiana is a swing state. It is mostly Republican, but has a significant African American population. Minorities make up about 13% of the population. Woman make up 51%. The Republican party is a mess. The fear is this state might be lost. I predict similar attempts in Ohio, Tennessee, and Texas. This is the only hope of controlling the election. The big states like NY, FLA, CA and PA will most likely be DEM, so its' the mid-level states the REPS are going for.
To pretend this is about State's rights and proper voting, why wasn't it done in 2005 after the problems of the 2004 election? This proposal only surfaced within the past 1 or so.
Here is a report by the Ohio St. U and Rutgers on non-voting due to strict ID requirements.
Consider all of this in light of JOhn Tanner the Chief of the Civil Rights division on voting, working closely with Georgia to change voting laws which disproportionately affected minority voters (as well as working with Indiana to craft their new law), resigned in disgrace for his comments and acts to change voting laws. Trying to get all constitutional about this issue, and declare that it is about integrity is as disingenuous as Hillary Clinton. In Republican strongholds, laws will be changed...in Democratic strongholds citizens will enjoy more freedom in voting with assistance in voting properly. The lines are being drawn. Nothing of this helps the average citizen. It helps those that will do what moneyed interests want them to do in government.
Posted by: Miguel at January 13, 2008 10:35 PM
Correction. Indiana does allow for DMV ID to be a form which is accepted.
Posted by: Miguel at January 13, 2008 10:39 PM
As usual nothing in your very long comment addressed the point of my post, which once again you didn't bother to read. The right to vote is not guaranteed by the federal constitution. Arguing minutia about how IDs are issued on a state by state basis sidesteps the point I made, which is you have no federally *guaranteed* right to vote. That comes from the states.
Posted by: Cassandra at January 14, 2008 08:11 AM
Miguel is correct that the burden of proof rest with the party challenging the constitutionality of a statute (be it federal or state). This is precisely the burden that the Dems and the ACLU failed to adequately demonstrate, or at least it would so appear based upon the Court's line of questioning. Remember, by challeging the statute as facially unconstitutional, the attacking party must prove that in every instance, and under every circumstance the statute impermissbly discriminates. See United Sates v. Salerno, 481 U.S. 739 (1987). Good luck, Charlie.
Had the plaintiff's brought an "as applied" challenge, they would have only had to show that the statute's effects were discriminatory in order to shift the burden to the state to show that the burden placed upon voters was permissable when balanced against the state's compelling need to ensure the validity of the election process. That's a situation where the remainder of Miguel's "evidence" would come into play.
Miguel states that "Many constitutional scholars and those that research voting will tell you that because of the scrutiny on voting machines and vote counts, the only way states (political operatives and lobbyists) will get around this issue is by limiting rights (or amending their state rules regarding voting." The "issue" of which Miguel speaks, one supposes, is alleged "voter fraud and disenfranchisement by the Republican party." Even accepting Miguel's premise as true, discriminatory motive, in of itself, is insufficient to overturn a statute unless there haws been a showing of actual discrimination, a fact that was never established in this case.
Moreover, Miguel's contention that "when it is suggested that the state find ways to help citizens get an ID at the voting stations, Scalia et al don't wish to consider how the state might be capable of assisting voters to have the proper ID" is as much besides the point as it is unfounded. "Scalia et al" were not hearing a case concerning whether Indiana has a responsibilty to assist its residents obtain an ID card at every polling place, a responsibility that, if abrogated, would result in de facto discrimination. That's a discussion of a remedy where no harm has yet been proved to exist...at least not by these plaintiffs. It doesn't take a constitutional scholar to tell you that the Court, sitting in its capacity as an appellate tribunal, does not entertain argument on issues not before it. One should make sure that the right question is asked before one disparages the answer it receives. The Plaintiffs just learned that lesson the hard way.
Posted by: spd rdr at January 15, 2008 01:53 PM
Shame on you, mr rdr.
Once again, you insist on obfuscating the issue with your talk of "law" and "facts" when what Miguel wants to talk about is his feelings:
Trying to get all constitutional about this issue, and declare that it is about integrity is as disingenuous as Hillary Clinton.
How DARE the Supreme Court try to get all "Constitutional" about this case???
Ummm... yeah. What is they are supposed to do that keeps their decisions from being judicial activism again?
OH YEAH! They are supposed to keep their big noses out of the business of overturning laws made by the states, unless there is some CONSTITUTIONAL basis for intervening.
In other words, they're *supposed* to get all Constitutional about things, and if they can't find any justification in the US Constitution, they are supposed to stay the hell out of our business and let us run our own lives via representative government, as the Founding Fathers intended, since they are not elected.
Posted by: Cassandra at January 15, 2008 02:36 PM
Seriously, I really like that phrase. It's got "lawyer humor" written all over it. I can't wait put it to good use.
"Objection, your Honor. Counsel is getting all constitutional right in front of the jury!"
"I swear, one more crack outta that guy and I was going to go all constitutional on his fat mug."
"Now, Honey, don't go getting all constitutional about it. It's just a dent."
Posted by: spd rdr at January 15, 2008 03:24 PM
Heh. I wonder if that's anything like going all medieval on your heiny...
Posted by: Cassandra at January 15, 2008 03:54 PM