Print
How Many Scalias in the Jar?
In January I wrote that the Supreme Court oral arguments in the Indiana voter ID cases dramatized the stakes in this election: democracy’s level playing field. The final decision issued on Tuesday in Crawford v. Marion County Election Board which was consolidated with Indiana Democratic Party v. Rokita reminds us yet again that no matter what you think of the current battle for the Democratic Party Presidential nomination, the winner will probably appoint a justice or two who could alter the course of American democracy well into this century.
Issued a week before the Indiana primary, the impact of this decision will reverberate into November as the Republican Counterrevolution continues its attempts to make it more difficult for people to vote. The question looming over this decision is whether some GOP state legislatures will try to rush through more laws like Indiana’s now that the Court has given them the green light.
Of course the results of the oral arguments suggested that a 6-3 decision in favor of Indiana was the most likely outcome, mainly because attorney Paul Smith gave such a poor performance. Even with Justice Souter trying to help him out with some softball questions, Smith seemed unable to mount an effective argument against the Indiana law.
Justice Souter asked if Smith could cite specifics about voters 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 appeared to have no knowledge of the study, whiffing at the question instead of hitting it over the fence.
No one, not even the bumbling Smith, asked the most important question of all: why in a democracy should it cost anything to vote? While Indiana argued that its IDs were “free,” there is a cost associated with obtaining them, especially for people with no transportation or who can’t afford Halliburton gas. Maybe we should issue church IDs just to be sure there is no fraud going on there and the same thing with free speech. Pretty soon we will need an ID for everything. This is the ultimate consequence of a Republican Counterrevolution that does not trust the American people, but instead seeks to make sure only the “right” people vote.
Essentially this is what the American Civil Liberties Union said in response to Tuesday’s decision. ACLU Legal Director Steven R. Shapiro commented:
We are very disappointed in today’s decision, but it leaves the door open to future challenges in Indiana and elsewhere by registered voters who are denied their right to vote based on onerous and unconstitutional voter ID laws. We should be seeking ways to encourage more people to vote, not inventing excuses to deny citizens their constitutional voting rights.
Ken Falk, Legal Director of the ACLU of Indiana and lead counsel on the case added:
Today’s decision minimizes the very real burden that Indiana’s voter ID law places on tens of thousands of eligible voters who lack a government-issued identification while accepting at face value Indiana’s unsubstantiated claim of voter fraud.
Falk and Shapiro gave two of the clearer statements of the level playing field I have read recently. Essentially they were saying that if we make it difficult for certain people, especially a certain class of people, to exercise their franchise then we are not truly a democracy but an oligarchy where power rests not in the people but in the privileged.
It has been almost four years since a task force of distinguished academic researchers representing the American Political Science Association (APSA), released American Democracy in an Age of Rising Inequality, a sobering document whose conclusions ominously bring to mind Tuesday’s decision. In the section “The Uneven Playing Field,” the task force wrote:
Government is expected to help insure equal opportunity for all, not tilt toward those who already have wealth and power.
The report went on to indict the current state of American politics:
We find disturbing inequalities in the political voice expressed through elections and other avenues of participation. We find that our governing institutions are much more responsive to the privileged than to other Americans.
The report included a graph that dramatized the differences in political participation between those making over $75,000 and those making under $15,000.
Note particularly the first bar graph that shows voting participation.
The Court’s words will not help improve that percentage. Like many recent decisions this one has multiple opinions, leaving legal scholars to puzzle over the potential implications. There has been much ranting in the liberal press about the decision, but the scary part is that when you actually read the decision those rants seem tame.
If you care about American democracy you owe it to yourself to read it. People sometimes get put off by reading Court opinions because they think they are full of legalese–that reading one of them is like trying to read your insurance policy. Certainly there is plenty of legalese, but there is also some prose that slaps you hard.
The first interesting aspect of the decision is that the Four Horsemen–Scalia, Scalito, Thomas and Roberts–did not vote together on this one. The lead opinion is written by Justice Stevens joined by Kennedy and Roberts. The most telling sentence in that opinion reads:
Petitioners ask this Court, in effect, to perform a unique balancing analysis that looks specifically at a small number of voters who may experience a special burden under the statute and weighs their burdens against the State’s broad interests in protecting election integrity. Petitioners urge us to ask whether the State’s interests justify the burden imposed on voters who cannot afford or obtain a birth certificate and who must make a second trip to the circuit court clerk’s office after voting. But on the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified. [p. 17]
Note the words “on the basis of the evidence in the record.” If ever there was a clear signal of the inability of the attorneys involved to marshal their case, this is it. The fact that Stevens and Kennedy made up two thirds of this opinion is telling, for they seemed to say that perhaps if a better case could have been made, then the opinion might have gone differently.
Still there is a second telling sentence in this opinion:
Finally we note that petitioners have not demonstrated that the proper remedy—even assuming an unjustified burden on some voters—would be to invalidate the entire statute.: [p. 19]
This is an unbelievable sentence. It is democracy by the numbers. If an injustice impacts only a few people then it is not an injustice. Think of all the momentous opinions of the Court that revolved around the rights of a single person, then ask whether Stevens and company are truly serious about applying their standard to these cases.
If you think this is bad, then read on to the opinion of three of the Four Horsemen, written by none other than the patron saint of originalism, Justice Scalia. Here is the key sentence:
For the sake of clarity and finality (as well as adherence to precedent), I prefer to decide these cases on the grounds that petitioners’ premise is irrelevant and that the burden at issue is minimal and justified. [p. 1]
Read that one over again and then again, then ask where American voting rights would be if this standard had been rigidly adhered to through the life of this republic. By this reasoning, special burdens on women and the 18th Amendment are irrelevant as are all the various strategies that were used to prevent people of color from voting.
It gets worse:
A voter complaining about such a law’s effect on him has no valid equal-protection claim because, without proof of discriminatory intent, a generally applicable law with disparate impact is not unconstitutional.
If I read this one right it says that the voter must prove “discriminatory intent” in order for there to be any challenge to voting laws. If you remember the history of segregation, the South once applied literacy tests to voters who were given such bizarre tasks as counting jelly beans in a jar to test their “intelligence.” The justification for this was that voters needed to be “intelligent” enough to cast their ballots. Scalia’s reasoning seems to say that this would be acceptable since there was no “discriminatory intent.”
Even more puzzling is how does one know discriminatory intent when one sees it. In the past, discriminatory intent could be proven by showing that a class of people were systematically deprived of a right. Scalia seems to be moving towards a position that would throw out this entire line of reasoning. It is chillingly similar to Justice Thomas’ decision in last year’s school desegregation cases:
Racial imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us. [p.4]
Both Scalia and Thomas seem to be arguing that those practicing discrimination need to say that is what they are doing. If they can mask it in some other rationale–such as testing “intelligence”–then it is not discrimination.
In the Indiana voter ID decision, Scalia does not stop with the intent issue, instead he goes on to say precedent doesn’t matter in this case, which is an interesting perspective for a so-called “strict constructionist.” But Scalia has found a new set of glasses through which to view the Constitution which he terms “originalism.” We find out in this case just what originalism means:
Even if I thought that stare decisis did not foreclose adopting an individual-focused approach, I would reject it as an original matter.
He goes on to say:
Voter-by-voter examination of the burdens of voting regulations would prove especially disruptive. A case-by-case approach naturally encourages constant litigation.
The example he gives is that a state reducing the number of polling places “would be open to the complaint it has violated the rights of disabled voters who live near the closed stations.” Scalia may have thought he was citing an extreme case that no one would possibly see as discriminatory, but as a disabled person, I can see that there might be instances where it is discriminatory.
Even more relevant, the Three Horsemen (maybe we should call them the Troika) construct a straw man by invoking “individual discrimination.” The Indiana case was not about individual discrimination it was about discriminating against a class of people.
Since attorney Smith was so bamboozled by the Four Horsemen and the justices are living in a different world than most Americans, it is important to review what has happened to voting rights in this country. Much has been written by me and others about how income disparities in America have regressed to the point of where they now resemble the early years of this century. What has received less attention is how the wealthy have come to dominate our political process as the participation of low income voters has also declined.
In 1996, 34% of all voters had an income under $30,000. In 2000 this declined to 23% and stayed there for the 2004 election. In an influential 2002 paper, “Where Have All the Voters Gone?” (later released as the book The Vanishing Voter) Kennedy School of Government professor Thomas Patterson noted:
The period from 1960 to 2000 marks the longest ebb in turnout in US history. Turnout was nearly 65 percent of the adult population in the 1960 presidential election and stood at only 51 percent in 2000.
Patterson’s conclusions echo those of the APSA task force:
Although a class bias in turnout has been a persistent feature of U.S. elections, the gap has widened to a chasm. The voting rate among those at the bottom of the income ladder is only half that of those at the top. During the era of the economic issue, working-class Americans were at the center of political debate and party conflict.
The Court’s decision in the Indiana voter ID case just like its decision in the desegregation cases means what I term two of the four cornerstones of Liberal America–voting rights and educational equity–have been compromised by this court. A house with two cornerstones out of kilter will not stand long; neither will a democracy.
Print Posted by: liberalamerican
