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UPDATE: SCOTUS upholds Indiana voter ID law

Michael W. Hoskins
January 1, 2008
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A week before Hoosier voters head to the polls, the nation's highest court has upheld Indiana's law requiring voters to show identification before casting a ballot.

The Supreme Court of the United States issued its decision, this morning in the pair of consolidated Hoosier cases William Crawford, et al. v. Marion County Election Board, et al., No. 07-21, and Indiana Democratic Party, et al. v. Todd Rokita, No. 07-25. The decision rejected the constitutional challenge to the strictest voter ID law in the nation and dismissed any uncertainty that may have existed going into the May 6 primary. In a 6-3 decision, the court didn't have a clear majority and only three wanted a broad interpretation defending the state's almost three-year-old law. The result is what election law scholars had predicted might happen because of limited evidence of voter burden or voter fraud in the record at the lower court levels, though it paves the way for more questions on this issue in the future. "This is by no means a ringing endorsement of voter ID laws," said Ken Falk, legal director for the American Civil Liberties Union of Indiana, which lost its constitutional challenge to the Hoosier statute but finds encouragement in the justices' writing. "Yes, we lost, and we're disappointed. But what's interesting is the plurality opinion that says there wasn't evidence in this case ... but there's a chance for others." Opponents argued that the 2005 law would unfairly target people who might have trouble getting an ID, but U.S. District Judge Sarah Evans Barker in Indianapolis ruled in April 2006 that the law doesn't infringe on anyone's right to cast a ballot. She focused on the fact that opponents had not produced evidence of a single person who would not be able to vote under the law, which is a point the 7th Circuit Court of Appeals joined her on when affirming the decision last year. This decision affirms the 7th Circuit's ruling. Other attorneys on the consolidated cases couldn't be reached for comment at IL deadline. Justice John Paul Stevens authored the majority's 21-page opinion, with Chief Justice John Roberts and Justice Anthony Kennedy concurring; Justices Antonin Scalia, Clarence Thomas, and Samuel Alito concurred in result with a separate opinion, while Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer dissented, calling the Hoosier statute unconstitutional. In the lead opinion, justices conceded that the law could impose some special burden on some voters but that the record doesn't have enough evidence to show what that burden is and whether it's severe enough to overturn the state statute. "When we consider only the statute's broad application to all Indiana voters, we conclude that it imposes only a limited burden on voters' rights," Justice Stevens wrote in the lead opinion, citing Burdick v. Takushi, 504 U.S. 439 (1992). "The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting 'the integrity and reliability of the electoral process.'" The conclusion reached by the court as a whole is that the law may be unconstitutional as applied to a small number of voters who must incur cost in order to obtain the ID, but because this case has no such voters as plaintiffs, it fails to reach that claim. In a concurring opinion, Justice Scalia cautions that the lead opinion could result in more litigation because it relies on the record and, in this particular case, doesn't have enough evidence to show a special burden is severe enough to warrant strict scrutiny of the entire statute. "The Indiana photo-identification law is a generally applicable, nondiscriminatory voting regulation that individual impacts are relevant to determining the severity of the burden it imposes," he wrote, adding later that it's a "universally applicable" and "eminently reasonable" statute. "Even if I thought that stare decisis did not foreclose adopting an individual-focused approach, I would reject it as an original matter. This is an area where the dos and don'ts need to be known in advance of the election, and voter-by-voter examination of the burdens of voting regulations would prove especially disruptive. A case-by-case approach naturally encourages constant litigation." Justice Souter, in his 30-page dissent, found the lead opinion's logic about limited burdens "far from trivial" and wrote the statute threatens to impose nontrivial burdens on tens of thousands Hoosier voters. "The Indiana Voter ID law is thus unconstitutional: the state interests fail to justify the practical limitations placed on the right to vote, and the law imposes unreasonable and irrelevant burden on voters who are poor and old," Justice Souter wrote, adding that he would vacate the 7th Circuit's ruling and remand. Justice Breyer issued a dissent that weighed the statute's voting-related interests with voter burdens, detailing what other states have done and finding that Indiana's law imposes greater burdens than those jurisdictions or a federal commission that had made national recommendations on voter ID regulations. Falk said he's encouraged by the plurality decision. "This isn't sour grapes, we understand we lost and this case is over," he said. "But it leaves open the possibility that if this law does what we think it will and burdens the right to vote, then those people will have judicial recourse."
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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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