Intern Ben Conniff’s blood is boiling. Read why:
The New York Times reports today that a five-person majority of Supreme Court justices are leaning towards upholding Indiana’s requirement that all voters show government-issued photo ID at the voting booth. This is a tricky issue. Requiring voters to show a government ID might stem voter fraud to some extent, but at the same time it presents a real burden to lower-income voters, who are less likely to have IDs or the time and resources to obtain them (see this study).
But what bothers me more than the majority’s stance on IDs is that they’re rejecting the Indiana Democratic Party and ACLU’s right to challenge the law at all. The case is a facial challenge, which means that the IDC and ACLU are opposing a restriction that they see as unconstitutional before it actually causes harm. This method has been accepted historically and, as Linda Greenhouse of the Times points out, was a key to overturning poll tax and gerrymandering laws before they actively disenfranchised voters.
Today our conservative justices are suggesting that we wait until individuals are harmed by a given law before we address its constitutionality. They call this “judicial restraint.” If that individual’s grievances can be fixed retroactively by awarding damages, this approach is fine. But election results are permanent. If the court waits to rule on a specific voter’s case, the election will have already been stolen.
Whether Indiana’s voter ID law is constitutional or not, facial challenges are necessary to protect voter rights and keep elections fair. Unfortunately, this won’t be the first time the current Court has acted to dismantle our means of challenging corrupt laws. Check out last summer’s decision in Hein v. Freedom From Religion Foundation, in which the court barred U.S. citizens from suing to stop unconstitutional White House spending. Our justices aren’t just making the wrong decisions; the precedent they’re setting is whittling away our ability to defend our Constitutional rights. They’re becoming the bad government they were meant to prevent.
RSS 2.0
Comments on this entry:
All the more reason why 2008 is the most important presidential election since 1932. The next president will likely be making at least two Supreme Court appointments in the next four years alone, and thus will have an absolutely pivotal role in shaping the Court's direction for the next generation. With even "moderates" like Giuliani and McCain publicly stating their intention of continuing the trend of appointing Justices like Alito and Scalia - well, you do the math. Damage already is being done; imagine a Court where the rights of the little guy get short shrift in landslide numbers, and it's a recipe for unfairness gone haywire.
nice blog. did you read the NYT's past coverage of the case? the article from jan 7 includes this quote, from the bush administration's brief defending the law even in the absence of any evidence of voter fraud: "The state's interest in deterring voter fraud before it happens is evident from the monumental harm that can come from such fraud."
So the state can prevent voter fraud before it happens, but the judiciary can't prevent voter disenfranchisement before it happens.
Also, that article talks about 31 specific voters who were disenfranchised by the new law. But I guess because they're not listed as plaintiffs it still counts as a facial challenge?