SO, HYPOTHETICALLY….

The Supreme Court ruling about Indiana's Voter ID law has been controversial and has attracted national media attention. Perhaps you can help me figure out what in the hell the SC was doing with this case in the first place.

Briefly, Indiana passed a law requiring voters to present a photo ID in order to cast a ballot (nb: an often-omitted fact about the law is that it allows voters to vote without ID so long as they go to the courthouse within 48 hours to sign an affidavit of their identity). The Democratic Party and various allied organizations filed a number of lawsuits challenging the constitutionality of the law. They were eventually condensed into a single case, Crawford v Marion County. It is a facial challenge, unsupported by any demonstrable injury. If you need to support an argument about the politicization of the judiciary and "legislating from the bench," look no further.

Standing is a fairly basic concept. The courts – especially federal appellate courts, whose time and attention are scarce resources – do not deal in pre-emptive justice. They avoid cases in which no party can say "I challenge this law because it harmed me." The Supreme Court (and political conservatives) loathe the idea of cases based on hypotheticals – i.e., this might hurt someone at some unspecified point. And yet both sides of this case base their arguments entirely on conjecture and speculation.

The Democratic argument, represented by plaintiff Crawford, is that this law disproportionately affects the poor, the elderly, the poorly-educated, and those without transportation. In other words, it affects Democrats. Republicans counter that getting to a government building once every 5 or 10 years to acquire or renew a government-issued ID is a reasonable, or certainly not excessive, burden. Neither Crawford nor any other plaintiff in the case actually fits the description the Democrats give. The ACLU's Ken Falk said:

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…

Really? And you couldn't point out a single one when the justices asked? You couldn't find one to use as a plaintiff? His claim makes sense intuitively, but it's also wrong. If these people number in the untold thousands they wouldn't be speaking in generalities in court.

Republicans argue that the law furthers a legitimate state interest in preventing voter fraud. Unfortunately they haven't been able to produce any examples of this either. The idea of people going to the polls pretending to be someone else is something at which they can only darkly hint, not prove.

So we have two sides making purely hypothetical arguments and asking the Court to settle the issue. On the one hand, the Democrats argue that we should not have to wait for an election to be damaged before addressing the law – the potential harm is so great that the Courts need to take extraordinary action. On the other hand, I think we can all see the potential danger in the courts expanding their jurisdiction into the realm of imagination. This is a case that is quite out of character for the SC (especially one with a conservative majority) to hear.

It's not difficult to see why the plaintiffs got hammered in this case – they predicted, they conjectured, they extrapolated, they hypothesized, and they rationalized but they never proved anything. But as all of this was readily apparent before the SC intervened, it doesn't take a mountain of cynicism to suggest that their motive was to give the great Seal of Approval for one of the conservative movement's trendiest pieces of legislation.

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4 Responses to “SO, HYPOTHETICALLY….”

  1. Samantha Says:

    Wait. So has this law actually been passed alredy? On the basis of potential voter fraud, although not one single case of voter fraud has ever been documented in Indiana? Ever? Or was it just deemed not unconstitutional to try and get it passed?

  2. Ed Says:

    The law is on the books.

    Unfortunately, proving fraud is not a prerequisite to the legislature passing the law. And while they were not able to prove fraud in court, the burden rests on the plaintiff and they weren't able to prove anyone was adversely affected by the law either.

  3. Michael Says:

    The plaintiffs no doubt should have anticipated that the court was going to push on that point — it has been increasingly hostile to facial challenges. But in their defense, facial challenges are recognized as a legimate course of action under some circumstances (such as in abortion and free speech cases). It seems like part of the problem here is that the plaintiffs are trying to stand up for people who are barely on the political radar screen. It is not a crowd that is making a point of civic engagement, which results in them being both hard to find and vulnerable to these kinds of laws.