Analysis: Is The 2008 Election Already Lost?
WASHINGTON, D.C. –
Posted Jan 10th, 2008 12:18 PM by Mark Kernes
The U.S. Supreme Court heard a landmark case yesterday, and from all indications, their ruling will hand the 2008 presidential election, and likely many national and state elections, to the Republican Party.
The case is Crawford v. Marion County Election Board, a case from Indiana in which the Indiana Democratic Party and the American Civil Liberties Union sued the state for having enacted a voter identification law that requires would-be voters to produce a state-issued picture identification card before being allowed to cast their ballot.
As the New York Times noted in an editorial yesterday, "The idea of asking voters for ID may not sound unreasonable, but the devil is in the exclusionary details."
What's nearly uncontested, even by the two governments – Indiana's and the feds – that oppose the lawsuit's claims, is that the law will make voting more difficult for minorities and the poor, a recognizable percentage of whom do not drive (and hence have no driver's licenses) and who cannot afford to take the time off from work during the day (when government offices are open) to obtain alternative photo IDs. Also, if turned away at the polls, they are unable, for similar reasons, to provide the required IDs within the 10-day "grace period," after which the provisional ballots they are allowed to cast under the law would be invalidated. (It is also noteworthy that provisional ballots cast in some states – notably Ohio – in the 2006 election were never counted, even though most of those casting the ballots did so legally and properly.)
And oddly enough, most of those people vote Democratic.
It is also worth remembering that by the official count, President Bush won the Florida presidential ballot by less than 600 votes, thus securing that state's electoral votes and the presidency, and lost the popular vote to Al Gore by roughly 540,000 votes, or .5% of the total vote.
Hence, it may seem a bit disingenuous for Justice Anthony Kennedy to have asked petitioners, "You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?"
However, the New York Times noted that a study in Georgia, which had enacted its own voter ID law, later struck down by the state Supreme Court, found that black voters were at least 83% more likely than whites not to have driver's licenses or a state-issued ID, and Hispanics were nearly twice as likely not to have them.
That made no difference to Chief Justice John Roberts.
"How far away is the furthest county seat for somebody in the county?" Roberts, a former Indiana resident, asked. "County seats are not very far away in Indiana."
Robert seemed oblivious to the fact that if the high court upholds Indiana's law, the move will be seen as a green light for similar laws to be enacted throughout the country, several of which do have county seats far away from potential voters, and which have poor public transportation systems.
Indeed, Indiana Democrats' attorney Paul M. Smith replied that the county seat in Lake County was a 17-mile bus ride from the county's urban center of Gary. "If you're indigent, that's a significant burden," he said.
But Kennedy's question was particularly troubling, since he is now considered to be the high court's "swing vote" on many important issues – and there is little doubt that the court's conservative bloc – Chief Justice Roberts and Associate Justices Samuel Alito, Antonin Scalia and Clarence Thomas – will vote to uphold the law.
"You had not come up with a single instance of somebody who was denied the right to vote because they didn't have a photo ID," Roberts told Smith, referring to the evidence the plaintiffs had presented at trial.
"You seem to accept that a facial challenge is appropriate here," said Scalia to Thomas M. Fisher, the Indiana solicitor general, who had not raised that issue at trial. "Why can't the people injured by this law appear themselves?"
Of course, a facial challenge to a law is the type that does not require evidence of an actual injury to a person, but merely the likelihood of such injury. And Roberts failed to note that despite several "voter fraud" prosecutions begun by U.S. attorneys under former Attorney General Alberto Gonzales, not one produced evidence that more than a handful of voters committed fraud, and even in those cases, there was no evidence that such fraud had been organized by any group.
And as Justice Ruth Bader Ginsburg pointed out, in the 2007 election, 32 legal voters had had their ballots rejected under the Indiana law, even though the incidents occurred after the original lawsuit had been filed.
"It does give you some confirmation that it isn't mere speculation that there are going to be many people whose vote will not count," Ginsburg said. "That's not hypothetical. That's real."
Her comment did not stop Solicitor General Paul D. Clement from arguing that the Supremes should wait to decide the issue until someone who was actually barred from voting brought his or her own lawsuit, but two of the Court's more liberal justices saw through that ruse immediately.
"That would be a virtue," responded Justice David Souter, "but one of the vices would be that it would be after the election, and the entire matter would be academic for another two years."
"The reason they are bringing a facial challenge is because the horse is going to be out of the barn," agreed Justice Ginsburg. "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."
Scalia, however, summed up the conservatives' view succinctly, that for the party in power – Republicans – it doesn't really matter whether enough Democrats are disenfranchised so as to swing the election results to keep them in power.
"Why 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?" he asked Fisher, adding, "This court is sitting back and looking at the ceiling and saying, 'Oh, we can envision not the case before us, but other cases. Maybe it's one-half of one percent or maybe it's 45%; who knows? But we can imagine cases in which this law could be unconstitutional, and therefore, the whole law is unconstitutional.' That's not ordinarily the way courts behave, is it?"
It is, when fundamental rights like voting are involved – but that lack of respect for such rights is just another result of the type of Justice (and, indeed, justice) that President Bush favors, considering that he nominated Roberts and Alito specifically because they seemed stamped from Bush's favored Scalia mold.
But the bigger picture here is that with the country still closely divided over whether Republicans or Democrats should set the country's national and international policy, and with the Republicans, after eight years of failed economic and social policies, likely to be replaced in January, 2009 by a Democratic president and solid Democratic majorities in both houses, a Supreme Court decision upholding Indiana's voter ID law and others like it around the country may very well prevent the very citizens who want – and are entitled to – change from casting their legal ballots to bring that change about.