Reading the arguments before the Supreme Court in the Indiana voter ID cases reminds you of the stakes in this election: our democracy and a level playing field.
While the Democrats seem on the verge of going into yet another of their famous self-destruct acts and people argue about the importance of this or that issue, I have yet to see a survey or hear a candidate stress the importance of the Supreme Court. There is a good possibility our next President could nominate two or more new justices. With the Court already leaning strongly toward the right, it means America could face the equivalent of the infamous nine old men who so infuriated Franklin Roosevelt he threatened to enlarge the Court. The problem is many of the right-wing justices are young by Supreme Court standards–and you can be sure if the Republicans win they will not be stupid enough to appoint any older justices–so we are talking about what could be two decades of opinions that attempt to take the country back to the nineteenth century.
The Indiana case provided an excellent illustration of just what is at stake. An inordinate amount of the questioning directed at attorney Paul Smith from Justice Scalia concerned whether the petitioners had standing to file the case Indiana Democratic Party v. Rokita. This is not a small issue, but in most cases, it is decided by the Court before the case is argued. The justices meet and make their ruling on whether the petitioners have standing and if they do not, send the case back.
Here is the beginning of the exchange after Smith has made his opening argument:
JUSTICE SCALIA: Before — before we get to that, can we talk about standing a little? Who are the — who are the complainants here?
Things go downhill from there.
JUSTICE SCALIA: But that doesn’t mean that I’m willing to have the Democratic Party represent me for all sorts of purposes. And these people can bring their own individual challenges. I mean, I’m not questioning their ability to do it. But, but why is the Democratic Party their representative?
Several pages follow with Souter, Scalia and Kennedy going back and forth about whether the Democratic Party has standing to bring the case before the Court. Finally Chief Justice Roberts intervenes seeking some end to the debate.
CHIEF JUSTICE ROBERTS: We can limit your standing argument to — I guess it’s based on the affidavits of Ms. Holland and Ms. Smith, the one who is a clerk for the Democratic Party and the other who is a judge for the Democratic Party. We don’t have to agree with you that anybody who votes, might vote Democratic, is enough to give you standing.
But Scalia will not let the matter drop.
JUSTICE SCALIA: Excuse me. Even in its own right, it has to identify somebody that’s a member or not.
Finally on Page 13, we get into a more substantive discussion. Justice Alito and Justice Kennedy ask:
JUSTICE KENNEDY: Although that leads to the next question, is whether or not there are ways in which the — the central purpose of this law can be preserved but it could be less stringent.
Smith answers:
If there’s any degree of burden being imposed on the voter by some additional identification requirement, then I would say it’s unconstitutional.
Justice Ginsberg then wonders if it would be OK if pictures were taken of the voters at the polling place with no charge to the voters, which Smith admits would probably be OK.
Then the questioning takes another bizarre turn that we have come to expect from this Court. Chief Justice Roberts asks one of the more insensitive and dumb questions ever asked by a Chief Justice:
CHIEF JUSTICE ROBERTS: County seats aren’t very far for people in Indiana.
This question seems like something out of the South in the 1950s. Roberts clearly hasn’t a clue to the lives poor people lead–and more tellingly–no desire to know about them. This blind spot in a Chief Justice of the United States Supreme Court is about as appalling a demonstration of ignorance as if I had asked why don’t the poor use their welfare Cadillacs to get there. Smith quickly corrects him, but the damage has already been done.
MR. SMITH: No. If you’re an indigent person, Your Honor, in Lake County, in Gary, Indiana, you’d have to take the bus 17 miles down to Crown Point to vote every time you want to vote. And if you’re indigent that’s a significant burden, and –
Scalia interrupts with an even more appalling bit of class prejudice.
JUSTICE SCALIA: It’s not a burden if you’re not indigent?
MR. SMITH: Well, it’s — it’s less of a burden, Your Honor, considerably less of a burden.
JUSTICE SCALIA: 17 miles is 17 miles for the rich and the poor.
So let them walk 17 miles so they can vote, Scalia seems to be saying.
Finally, a quarter of the way into oral argument we get to the heart of the matter: preventing voter fraud. The Chief Justice seems to place great weight on a report that there is a 41.4% figure of bad registrations in Indiana. A bit of an explanation of this is necessary to understand the case. Indiana was under a court order to fix its voter registration system, whose records were so bad that, as the Chief Justice points out, almost half of them were a mess. Indiana’s solution is the voter ID law.
Smith tries to explain the difference between bad records and voter fraud.
The situation has existed for now a number of years, and the salient fact here is that there’s not a single recorded example of voter impersonation fraud.
A bit later after the Chief Justice goes on to say duplicate voting is a problem, Smith again tries to correct the false impression:
It’s not happening and, indeed, every single indication in this record is that the evidence of this kind of fraud occurring, to call it scant is to overstate it.
Justice Scalia then raises the old graveyard voter red herring, tipping his hand as he always does in an effort to bully the other justices and the plaintiff:
MR. SMITH: It’s certainly possible that someone could commit this kind of a crime.
JUSTICE SCALIA: I’d say likely.
Unfortunately Smith must have been so unnerved by now that he had trouble digging himself out of the hole Scalia and company have dug for him. Alito begins press the advantage:
JUSTICE ALITO: Well, if you concede that some kind of voter ID requirement is appropriate, the problem that I have is where you draw the line on a record like this where there’s nothing to quantify in any way the extent of the problem or the extent of the burden, how many people will actually be prevented from voting or significantly burdened from voting as a result of the requirement? How do we tell whether this is on one side of the line or the other side of the line?
Now Smith is really in a bind. Justice Souter again tries to help him out asking if he can cite specifics about voters being prevented from voting by not having an ID. Smith could have referenced the Eagleton Institute Study cited in Part One of this series. The 2007 study found:
Data showed that registered voters in states that require photo identification as a maximum requirement were 2.9 percent less likely to say they had voted compared to registered voters in states that required voters to state their names.
But Smith appears to have no knowledge of the study. Souter continues to ask leading questions.
JUSTICE SOUTER: But how do — how are we going to — how is a court going to arrive at some kind of a bottom line judgment on this issue?
MR. SMITH: Well, because you — you basically have to take into account all of those factors: How many people are potentially affected; how difficult it is; how similar it is to, say, a poll tax, for example, and say — and then look at what purpose is being served here. Is there any real incremental benefit to anything by –
Smith does not seem inclined to use the argument that if a law makes it difficult for ANYONE to vote, it is unconstitutional. Some on the Court seem to be arguing that voting rights is a quantifiable matter: if only a few people are prevented from voting it is not important.
Scalia explicitly affirms this line of reasoning later in the oral argument:
But why — what precedent is there for knocking down this entire law on a facial challenge when I think everybody agrees that in the vast majority of cases it doesn’t impose a significant hardship?
Note the words “vast majority of cases.” So this is to be America’s new standard in deciding voting rights: as long as a vast majority do not face a significant hardship we don’t have a problem. Since Scalia loves to nitpick, let’s throw a bit of his own medicine back at him. Just what the heck is a “vast majority?” Is it bigger than a “large majority?” And just what is a “significant hardship?” Having to walk 17 miles apparently is not a hardship?
By this line of imprecise reasoning–I say imprecise because of Scalia’s vague terminology–something so fundamental to the functioning of a free country as voting could come down to–dare I say it–the equivalent of jelly bean counting. For this is what the court is doing–by weighing the number of voters inconvenienced by the law against the red herring of voter fraud they are counting the equivalent of jelly beans to come to a decision. God help this Republic if this is the mindset of our most esteemed judicial officials.
How would Brown v. Board and a host of Civil Rights cases have been decided had the Court used Scalia’s reasoning. What is notable is that no other justice called him on it. Apparently no one on this Court is willing to say that if a law deprives even one person of the right to vote, or some other right, that law is wrong.
Even more troubling about the line of questioning coming from Scalia and the Chief Justice is their total ignorance of what it means to be poor in this country. To these justices having to pay $20 plus bus fare plus perhaps lose time off work in order to be able to vote is no big deal. Let’s say the cost is $50 on the low end and over $100 at the high end. That could amount to the equivalent of a week’s worth of groceries or being able to pay your utility bill to get your voter ID–starve or vote, freeze or vote.
No one, not even the bumbling Smith, asked the most important question of all: why in a democracy should it cost anything to vote? Voting is a right guaranteed by the Constitution. Since when has someone decided we suddenly have to pay for our rights? How much is free speech worth? Freedom of religion? Maybe we should issue church IDs just to be sure there is no fraud going on there and the same thing with free speech. This is the ultimate consequence of a Republican Counterrevolution that places a monetary value on everything.
It takes the always level-headed Breyer to come back to reality. In questioning Thomas Fisher, who was defending the Indiana law, Breyer states:
I’m saying your whole system is a system designed to assure that the person at the voting booth is the same as the person who registers. I accept that, absolutely right. And I’m simply saying given that, why didn’t you say Mr. Proto — Mr. Likely, like to register: “Come in. If you don’t have a photo ID, we will give you one.” Now, what’s the objection to that?
Then it’s time for Souter to nail Fisher:
JUSTICE SOUTER: Well, are you making the argument that you can place a heavier burden on voters to identify themselves because your State officials refuse to follow the law?…I mean, surely you’re not going to rest your case on that, are you?
Finally, on page 62 Justice Stevens identifies the elephant in the room, the one Justice Scalia was hinting had no standing:
JUSTICE STEVENS: But don’t you think it’s fair to infer that this law does have an adverse impact on the Democrats that is different from its impact on the Republicans?
The answer by Indiana’s attorney was that the Democrats did well in 2006.
Based on the oral arguments, the obvious question on everyone’s mind is how will the Court rule? The Democratic Party could well find itself in deep trouble due to the standing issue. That Scalia should spend 8 pages of the 81 page summary in a lengthy exchange about standing suggests to me only two possibilities: first, this Court is deeply divided to the point of disfunctionality if it cannot decide standing before a case is argued or Scalia was deliberately trying to throw a wrench into the works by focusing on standing rather than on the merits of the case. But something more subtle may be at work here, for Scalia is suggesting that the Democratic Party may not have standing in any case. Scalia’s questioning suggests a cat playing with a mouse, for Smith does not seem to have anticipated this argument very well.
In fact, Smith’s less-then-stellar performance quite frankly would make it surprising if the Court rules in his favor. Having read a fair number of oral arguments and cases, I would rate Smith’s performance no better than a “C.”Even with Souter, Ginsberg, Breyer and Stevens feeding him leading questions, he seemed unable to provide satisfactory answers, which seemed to irk Souter the most.
The Four Horsmen all seemed to tip their hands in favor of the Indiana law. Kennedy’s questions suggest he may again be maneuvering to write one of his separate opinions that like some of his recent efforts leaves legal experts shaking their heads as he did in the desegregation cases. Five to four in favor of Indiana looks to be probably a best case scenario, with six to three not out of the realm of possibility.
Unless I am presently surprised, the results of the Court’s ruling will reverberate through the next election as Republican states rush to push through their own voter ID laws modeled on Indiana’s–which the Smith called one of the most restrictive in the nation. Millions of the poor, the elderly and people of color will again find the voting booths barred to them as they have been before in our nation’s history. The Court’s opinion will amount to nothing less than the systematic disenfranchisement of these voters.
Unlike some who see the upcoming election as the Democrats’ to lose, I think the contest will be close enough that without these voters the Court’s decision could tip the election in favor of the GOP. The Bush v. Gore of 2008 will occur before the election, for if the Eagleton Institute study is right, the Democrats have already lost 2.9% of their voters.
The even more tragic angle on the Indiana cases is that none of the current Democratic Presidential candidates appears to care about these voters, with all of them bumping into each other in their attempts to court the middle class. John Edwards’ two Americas have become three Americas–the rich, the middle class, and the ignored. The poor, who FDR once characterized as the “Forgotten Man,” have again been forgotten.
The reasoning of the Court’s current Four Horsemen of the Apocalypse strikes me as extremely scary, not so much because it favors the Indiana law, which given Smith’s weak arguments seems a given, but because of what they reveal about the justices underlying mental models. If you remember your history, the Four Horsemen was the name given the four conservative justices who precipitated Franklin Roosevelt’s Court-packing scheme. The most disturbing assertion from these new Four Horsemen is Chief Justice Roberts’ and Justice Scalia’s assertion that seventeen miles is no barrier to registration which should go down in history as our own version of “let them eat cake,” only in this case it is “let them walk.”
Then we have the new Four Horsemen’s reviving the red herring of voter fraud. Much of their discussion had all the intellectual rigor of the rants of talk radio call-ins. Justice Scalia’s crack about graveyard voters suggests these justices feel democracy faces a takeover by ghosts. Better to prevent people from voting than risk an attack of imaginary zombies.
But the zombies won, wearing the robes of the Supreme Court. This isn’t about graveyard votes–as the justices well know–it is about whether our system of voting shall intentionally favor the well-to-do and the Republican Party. Should we have expected less?
That such a question should be raised in the twenty-first century is sad, after two centuries of expanding the franchise, we appear poised to take several steps backward. Will we hold our democracy accountable to its own ideals by putting the Court on center stage during the upcoming election? Wolf Blitzer and company, maybe you need to ask a question about the Court and its desegregation and voting rights decisions.
The performance of the new Four Horsemen brings to mind a famous quote from one of the original Four Horsemen of the 1930s, Justice George Sutherland. In Associated Press v. National Labor Relations Board he wrote:
The saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was.
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