What hath the Supreme Court wrought?

May 12, 2008

When Indiana passed a voter ID law, it was ostensibly to protect the integrity of the voting process. What better way to prevent voter fraud than to require those participating in an election to produce identification?

Was there any evidence of a voter-fraud scourge in Indiana? No. Would the law make it harder for “certain kinds” of voters (i.e., the elderly, minorities, and the poor) to participate? Yes. Did this look a whole lot like Republican lawmakers trying to discourage likely Democratic voters from taking part in elections? Obviously.

But in a painfully misguided ruling, the Supreme Court approved the Indiana measure anyway. We’re now seeing the predictable result — conservatives who want voter ID laws to help keep Democrats from the polls are ratcheting up their efforts.

The battle over voting rights will expand this week as lawmakers in Missouri are expected to support a proposed constitutional amendment to enable election officials to require proof of citizenship from anyone registering to vote.

The measure would allow far more rigorous demands than the voter ID requirement recently upheld by the Supreme Court, in which voters had to prove their identity with a government-issued card.

Sponsors of the amendment — which requires the approval of voters to go into effect, possibly in an August referendum — say it is part of an effort to prevent illegal immigrants from affecting the political process. Critics say the measure could lead to the disenfranchisement of tens of thousands of legal residents who would find it difficult to prove their citizenship.

Similar Republican-led efforts are under consideration in 19 states, but Missouri’s effort is the only one that might take effect before this year’s presidential election.

Robin Carnahan (D), Missouri’s secretary of state, estimates that the measure could disenfranchise up to 240,000 registered voters who would be unable to prove their citizenship. (In 2000 and 2004, the margin of victory in Missouri was less than 200,000 votes, meaning that the GOP voter ID plan could easily make a difference in deciding the winner of the state’s electoral votes.)

Digby concluded:

This is what the voter-fraud fraud has always been about: making voting such a hassle that a lot of voters will just figure it isn’t worth the trouble or don’t feel like being treated like dirt by officials who suspect them of being criminals on the basis of their ethnicity. I would imagine that there are a whole lot of older people who’ve never had to prove their citizenship in their lives and wouldn’t have a clue about how to go about doing it.

This whittling away at the franchise will be one of the greatest accomplishments of the conservative movement when all is said and done. They simply don’t believe in the democratic concept of one person one vote. Never have.

I’d just add that it’s far from clear that the Supreme Court would go for this. The court majority endorsed the Indiana measure, but it required a photo ID. If someone doesn’t have a driver’s license, they can get a state ID card for free. It’s a huge hassle, especially for elderly people who can’t get around easily or low-income workers who can’t get time off to go to a courthouse, but there were options. (In other states, utility bills, paychecks, and student or military ID cards meet identification requirements.)

Proving U.S. citizenship is tougher, creating a hurdle that’s harder to clear. Missouri voters would likely have to produce an original birth certificate, naturalization papers, or a passport in order to participate in an election, and a whole lot of eligible voters would likely be denied a ballot or decide in advance it’s not worth the trouble. Maybe five justices would sign off on this, maybe not, but it’s not obvious.

Lillie Lewis, a voter who lives in St. Louis and spoke at a news conference last week organized to oppose the amendment, said she already had a difficult time trying to get a photo ID from the state, which asked her for a birth certificate. Ms. Lewis, who was born in Mississippi and said she was 78 years old, said officials of that state sent her a letter stating that they had no record of her birth.

“That’s downright wrong,” Ms. Lewis said. “I have voted in almost all of the presidential races going back I can’t remember how long, but if they tell me I need a passport or birth certificate that’ll be the end of that.”

A 2006 federal rule intended to keep illegal immigrants from receiving Medicaid was widely criticized by state officials for shutting out tens of thousands of United States citizens who were unable to find birth certificates or other documents proving their citizenship.

Is there any evidence at all to suggest non-citizens are voting and influencing U.S. elections? Not at all; that’s not what this is about.

This is a scheme launched by far-right activists who hope to get fewer Democrats to vote. Plain and simple. Republicans have a choice — try to win elections the old fashioned way (by earning the support of voters), or try to shave a few percentage points off the likely vote totals of the other side. They seem to prefer the latter, even if it means proposing a solution to a problem that doesn’t exit.

As Josh Marshall explained a while back, “Remember, the point of voter ID laws is not to eliminate fraud; it is to eliminate Democratic voters.”

Does Robin Carnahan (nothing like depotism in politics) really believe that there are a quarter of million people in Missouri that could not get a passport. Or is the implication that there are a quarter of a million register voters who have no business voting because they are not citizens?

  • It’s just my memory,but I think the SCOTUS decision would see this as too big a hurdle. I’m sure it will be challenged, and SCOTUS would certainly review it. The original decision consisted of two majority opinions, and Stevens, in the primary one, implied that although the photo ID may not be a “substatial burden”, more restrictive requirements might be, and, in my opinion, might be enough to swing Stevens and Kennedy.

  • Robin Carnahan, as well as many others, believes that many people will not bother to get an (expensive) passport just in orer to vote. Requiring something like this is effectively a poll tax.

    Question for anyone: Could Congress overrule these efforts? Does it not have the power to set standards for Federal elections?

  • The solution to the problem is for the US government to give , FREE OF CHARGE, a passport to every citizen. Then everyone would have the requried ID.

  • No, the implication is that Americans should not have to pay $100 (current new passport fee) to vote.

    By the way, ordering a birth certificate isn’t exactly painless or cost free either.

  • Of course we can and should oppose the enactment of this increasingly outrageous legislation, but as long as the US federal judiciary is owned and operated by the GOP, it is unlikely that we will be able to get rid of the bad laws in time to do any good. As I wrote last week in one of the threads that mentioned the nuns whose lack of ID prevented them from voting in Indiana, I think we need to establish — NOW — programs to help all of those people who need help jumping through the procedural hoops required to obtain adequate ID. Until we’re in a position to make the rules fair, we have to make sure we can win even under the unfair rules.

  • WTF is “depotism”? And WhyTF should you have to get a passport, a foreign travel requirement, to vote in an American election, exactly? You can go to Mexico or Canada without a passport, why should you need it to go to the high school down the street?

    I remember it being discussed in an immigration law class I took some time back, that probably the majority of American citizens do not have any easy access to proof of their citizenship. If they were to be arrested and asked their citizenship status, for example, how would they prove it? Most Americans do not have either an original birth certificate or a passport.

    I don’t know what Missouri’s standards for constitutional amendment are, but this seems unlikely to pass, to me.

  • Richard:
    The core of the SCOTUS decision was that no matter how weird or misguided, the states have a right to regulate their own elections. I’m not sure that something short of a Constitutional Amenedment would work. I’m not expert, though.
    It is a thin line between a “Poll Tax” and what has passed muster in Indiana, SCOTUS seeems to think. No line at all, I think.

  • You know, rather than crying foul and making a stink about Republican dirty tricks here, I think the smart thing for Democrats to do is to get out in front of this issue. Face it: To Joe Sixpack, it probably seems like common sense that a person should need ID to vote (they need to show it at the bank, right?). So instead of swimming against that tide, mount a nationwide effort to make obtaining voter ID’s easy and free. Could be a national ID of some kind or it could be state-by-state. The important thing is that it’s easy — we could have the census folks go door-to-door to every American’s house hooking them up with one — and it’s free. Presto. Problem goes away. Then we turn to the GOP and say “See? No more of that scary (non-existent) voter fraud.” And when they grumble about it we say “I’m sorry, what’s the problem? Isn’t that what you wanted?”

  • If I’m not mistaken the SCOTUS decision was strictly an opinion on the theoretical constitutionality of requiring an official state ID (assuming it wasn’t a backdoor poll tax). It left open the possibility that any particular implementation (or even any implementation generally) of this theoretically kosher idea, might be impractical to the point of unconstitutionality.

  • The general election is just under 6 months away. This is the moment to begin the massive effort to get every registered voter a legitimate photo ID.

    But doing it at a federal level—or even a state level—will be an insurmountable task. Break this thing down into local/township/parish/county levels, and it can be done.

    But it must begin NOW.

    We have a golden opportunity here to ram this “stealth poll tax” down the GOP’s throat—and make them choke on it until, as a viable political entity, they die.

    On a related note: anyone have links to organizations that can take this effort on? It’s late in the academic year, but I’m thinking that students—especially college students—could get this thing ramped up as they go home for the summer….

  • This is what I really love about some elements of today’s Republican party. We’re told on end of how awful the Democrats are, particularly when it comes to campaigning and trying to steal elections. Yet the only significant instances of this happening, outside of some random asshole who takes matters into his own hands, involve the very same people who are complaining that the other side does this. Worse yet, it’s now becoming institutionalized.

    I recently got into an argument with a conservative friend of mind who mocked me when I said measures like the one taken in Indiana would disenfranchise the elderly, the poor, and minorities, as if it’s some sort of unfounded concern. I was in a bad mood at the time and didn’t feel like arguing, but the next time it comes up, I’m going to shove this information right in his face. We’ll see if he expresses the same sort of callous disregard that he displayed last time.

  • Toast @9 makes a good point. In Michigan, we have to show ID, but I believe it does not have to be a picture Id. We get voter registration cards sent to us occasionally – why not have that registration card itself be a valid ID card for voting?

  • What about the people that vote absence t ballott? Are we going to have to reregister at our village hall? I live in Wisconsin and we don’t have to show an ID but that could change. All the voter can register for an absence t ballot that would solve everything.

  • jhm,
    That’s not exactly accurate. The Supreme Court does not issue advisory, or purely “theoretical,” decisions. What the Court held in Crawford was that Indiana’s voter ID requirement, as actually in effect in that state, passes constitutional muster. The question whether the requirements contemplated by Missouri would likewise be found constitutional is a much tougher question; certainly Crawford is the most relevant precedent but I don’t think it answers the question entirely.

  • Want a more perspicacious SCOTUS: abolish the lifetime appointments- give em an 8 year term. It has become a star chamber, and not an impartial Constitutional Interpreter.

  • “It’s just my memory,but I think the SCOTUS [at least as currently constituted] decision would see this as too big a hurdle. I’m sure it will be challenged, and SCOTUS would certainly review it.”

    I think this is true, but it misses the point: it will certainly not review it before this election. So if Missouri passes this law, it could well tip Missouri — and with it, the general election – to the Republicans. Several SCT justices are likely to retire soon. So McCain gets to appoint more republican-friendly judges to the SCT, who then end up extending the Crawford decision (by more than a little bit) to cover this latest infringement on the right to vote as well.

    In short, don’t count on the SCT to save you from this law.

  • Two things: National ID cards will fly even less than requiring IDs to vote. As soon as you start talking about a national ID the Right will attack with a standard “The Left wants us to register so they can control us” line of attack. And that’s what the Right will say. The Left will oppose it too, but some of us will oppose it for a different reason.

    Which leaves me to my second point:

    I’m white, male, middle class — and can’t prove that I’m an American citizen. There was a fire back in ’63 that destroyed the records at the hospital I was born at. My parents divorced messily right around the same time; all their records of things like when their last child was born were on the bottom of the list of things for them to worry about.

    I don’t have a birth certificate.

    Back when I was younger we used a certified copy of a piece of paper that had my name, along with a bunch of other names on it, that said I was born at a particular place and time. Unless that works to get a passport or one of thes “national voter ID cards” you’re talking about (and who knows if it would or not) I’d be SOL.

    “But you’re just one person” you say? I’m hardly unique. And as close as elections have been the last couple of times every single vote counts. I’d really like mine to count too.

  • #17: They might not review it before the election, but if it is taken up in court it would probably have an injunction placed on it until judicial review is finished. And you can bet that someone is just waiting for the bill to become a law so that they can challenge it. So chances are, the state won’t be allowed to enforce it anyway.

    At least, I’m hoping that’s how it would go down.

  • Chuck—when were you born? Did you register for school before the fire? Is that school still standing?

    Public schools—even back when I was little—required shot records and a birth certificate as proof of eligibility for school attendance. If they don’t have an old Zerox copy of your certificate, then they’ll at least have “official documentation” that you had one—which is enough to take to the county records bureau so they can “reverse engineer” a surrogate birth certificate.

    Once you’ve got that—you, my friend, are “back in business….”

  • Republicans know full well that these laws have nothing to do with illegal immigration or voting fraud. It is a cynical, orchestrated attempt to restrict access to the ballot for groups that are more likely to find their interests aligned with the other party. Quite literally, it’s a modern variation of the literacy test or property requirements, which also were ostensibly “neutral.” Given our historical and moral struggles to expand the most fundamental tenet of a democracy (the right to cast a ballot), this is a truly sad moment for all Americans, Republican or Democrat. The strategy, however, is guaranteed to fail; the number of people that get turned away will be more than offset by the rapidly expanding engagement of the young and marginalized (both of whom also lean democratic). This is a vindictive parting shot by a party entering its twilight (at least in its current, extreme right-wing form), whose ideology and policies have been rejected by a critical mass of Americans. After all, a dying star screams loudest right before it goes supernova.

  • Neil Wilson,

    The solution to the problem is for the US government to give , FREE OF CHARGE, a passport to every citizen. Then everyone would have the requried ID.

  • If it is not allowed to be settled at the ballot box eventually it will be settled in the streets.

  • Like Chuck above, my father, a university professor, had a very difficult time obtaining a passport, because the hospital in which he was born had burned down. He eventually was able to get one, but it was a major hassle. Plus, getting birth certificates can cost money, and passports always do. This is just another attempt to disenfranchise less well off Americans. Meanwhile, absentee voting, which is much more vulnerable to fraud than is in-person voting, gets no attention. After all, absentees tend to be better off, thus more likely to vote Republican.

  • It’s not just the old and the poor. There those, like Chuck (@18) and Becky’s (@24) father, whose records got destroyed. But there are also the commune hippies. Remember those? Lots of babies born not just at home but without even a midwife. And they didn’t go to school as they grew older, either; they were home schooled, using library materials (you don’t need a birth certificate to borrow books from a library).

    And, anyway… How’s a birth certificate a proof of anything? Can’t just anyone write to the bureau of statistics and request one? In triplicate, if necessary?

    As for legal immigrants… If the bank burned tomorrow and with it my naturalization certificate and the passport, I’d be really up the creek, because even my original birth certificate (and its notarized translation) are in that lock box, as is my marriage certificate (not that the last would have been of any help, since I was a Polish citizen still at that point)…

  • Why is this so hard for people to come to terms with? Church christening and baptismal records—school records—medical records—several months’ worth of utility bills, rental statements, mortgage payment receipts, credit card statements—good grief, if the post office delivers mail to you, then there’s a legitimate record that you exist.

    Find as many pro-bono lawyers as possible and get this thing going on a grass-roots level. Sue the agency in question and demand that they PROVE you are someone other than you claim to be. Run up the class-action filings and bury these guys in red tape

    Do NOT challenge the ID laws in general; they’re legitimate pieces of legislation being used for scrupulous means. Challenge the specific item in the laws that effectively blocks individuals from voting. Ask the courts to establish alternatives to non-existent records with a specific set of examples (real people instead of straw people), and not just gray-area “what-ifs.”

  • Am I the only one who sees potential for a total backfire?

    Elderly folk are the most likely to have problems getting birth records because there’s been substantial time since the records were made and mishaps have had more time to happen, especially given the lack of computerization, quality filing systems, photocopiers, etc.

    Many may have misplaced their drivers’ licenses, and some may not know or remember where to go for the documentation to replace it.

    Last I heard, elderly folk are more likely to be Republican and conservative. This law may NOT be the GOP’s friend for very long.

    The way conservatives complain about grandmothers being frisked at airports, do they not realize the possibility that Republican seniors will be treated the same as the illegal immigrants they fear so much, but weren’t a problem until they opened their pieholes?

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