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Voter ID questions remain after SCOTUS ruling

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The primary election in Indiana has come and gone. Voters had to show photo identification, the same as in other recent elections, but it was the first since the nation's highest court upheld the almost three-year-old state statute requiring specific ID at the polls.

Most agree the U.S. Supreme Court decision April 28 hasn't ended the debate about voter identification laws and that more law-drafting and subsequent litigation prior to the November general election is likely.

Nationally, both voters and the legal community should be ready for more debate because the recent ruling didn't have a clear majority and six justices agreed to some extent that Indiana's law could burden some voters.

The court issued a fractured 6-3 decision in 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, a pair of consolidated cases challenging the Indiana statute passed in 2005. Opponents argued that the law would unfairly target people who might have trouble getting an ID, while the state contended it needed the right to impose the rules to prevent voter fraud.

A plurality opinion led to justices conceding that the law could impose a special burden on some voters, though the record doesn't have enough evidence to show what that burden is and if it's severe enough to overturn the statute entirely. In rejecting challenges to these types of laws, the court determined that future challenges must come in regard to specific laws that are already applied in an election and where evidence can be established.

"They haven't completely slammed the courthouse door shut, but it's going to be problematic whether the right set of facts will come along to convince judges this should be struck down 'as applied,'" said William Groth, an attorney who represented the Indiana Democratic Party. "It is hard to read Justice (John Paul) Stevens' majority opinion and come away with any clear guidelines."

The decision came eight days before Hoosiers went the polls for the May 6 primary election, when a record turnout came as Democrats flooded the polls and the state saw many Republicans switching their ticket to have a voice.

Election Day mostly went well, though scattered reports came about voters - many voting for the first time since the 2005 law took effect - not understanding which government-issued photo ID was needed.

A voter-assistance hot line received several calls from would-be voters in Indiana. They were turned away at precincts because they lacked state or federal identification bearing a photograph, according to the Brennan Center for Justice at New York University School of Law. The center and the Lawyers' Committee for Civil Rights Under Law established the hot line as part of Election Protection, the nation's largest nonpartisan voter protection coalition.

One college freshman in South Bend reported she was turned away from casting her first-ever ballot because she had only a college-issued ID card and an out-of-state driver's license, while a newly married woman reported she was told she couldn't vote because her license didn't match the one with her voter registration record.

While poll workers were trying to help the student, the Election Protection line coordinator reported that a group of 12 elderly Catholic nuns were turned away from the polls because they didn't have proper identification, though they'd known about the requirement beforehand. 

 "These laws are confusing. People don't know how they're supposed to be applied," said Myrna Perez of the Brennan Center for Justice and coordinator of the Election Protection hot line.

Following the ruling late last month, Indiana Secretary of State Todd Rokita dismissed any notion that the laws were confusing and called the ruling a "clear cut victory" for states wanting to impose voter ID rules. He said at least 25 states had called his office about the case since it was argued in early January, and now this ruling can serve as a road map for those jurisdictions wanting to initiate similar reforms. About 20 states already have some type of voter ID regulation, he said.

The Brennan Center for Justice criticized the decision but also noted that this didn't give states a blank check for blocking eligible voters; it called on lawmakers across the country to reject similar laws.

Debate is already rampant about the ultimate meaning of this decision and what comes next.

Ken Falk, legal director for the American Civil Liberties Union of Indiana, said he was disappointed but also encouraged by the possibilities left open by the court. If the law does burden voters at the polls, that could lead to more ammunition for future litigation.

"My sense is that a little has been decided but not all that much," said Michael Pitts, a professor at Indiana University School of Law - Indianapolis. "As predicted, we have a very fractured Supreme Court and there's not really widespread agreement on how to handle these voter-identification cases, or election-law cases in general."

 Justice 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.

The conclusion reached by the court as a whole affirms the previous ruling in April 2006 by U.S. District Judge Sarah Evans Barker in Indianapolis, and the ruling last year by the 7th Circuit Court of Appeals that affirmed her decision
2-1.

While the law stands for now, some justices who voted to uphold the law disagreed and speculated this could lead to more litigation on the issue.

In a concurring opinion, Justice Scalia - along with Justices Thomas and Alito - cautioned 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.

Election law professor Richard Hasen at the Loyola Law School in Los Angeles, who'd filed an amicus curiae brief in the cases, said the six justices who voted to uphold the law did so for different reasons and only three offered a strict interpretation of defending the law. That means uncertainty for lower courts on this issue, he said.

Groth expects to see this case come up in state courts at some point later this year. An interesting opening would be if a suit were filed under the Indiana Constitution challenging the statute as a violation of the state provision of qualifications for voting, such as age, residency, and citizenship. Groth said one could argue that this ruling effectively imposes a fourth condition on voting that isn't mentioned in the constitution, and this is an attempt by the legislature to get around a constitutional amendment.

"That's still an avenue out there, and that kind of lawsuit might be forthcoming between now and November," Groth said.

Meanwhile, Pitts saw Justice Stevens' writing a narrow approach to this issue, possibly a strategy to push the issue down the road to another time. Justice Scalia seems pretty upset about that, Pitts observed, while the three other justices dissent with the ultimate ruling. He predicted litigation will arise after both the May and November elections.

"This is the biggest test since it's the first time this law went into effect in 2005 that we'll have this big a turnout," he said. "This (ruling) opens the door to other challenges, here and elsewhere." • 

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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