The Supreme Court heard arguments last week in a hugely important case about voter ID laws. Asking for identification at the polls may sound reasonable, but an Indiana law disenfranchises large numbers of people without driver’s licenses, especially poor and minority voters. If the court upholds the law, as appears likely, it will be a sad new chapter in its abandonment of voters, a group whose rights it once defended vigorously.
As long as there have been elections, there have been attempts to keep eligible people from voting. States and localities adopted poll taxes, literacy tests, “white primaries,” “malapportionment” — drawing district lines to give a small number of rural voters the same representation as a large number of urban voters — and restrictions on student voting. In recent decades, the Supreme Court has rejected all of them.
The court understood that the Constitution guaranteed a robust form of democracy and saw its clear value for the nation. During the tumultuous late-1960s, Chief Justice Earl Warren declared that most of the country’s problems could be solved through the political process if everyone “has the opportunity to participate on equal terms with everyone else and can share in electing representatives who will be representative of the entire community and not of some special interest.”
In recent years, however, with a conservative majority in place, the court has become increasingly hostile to voters. During the oral arguments in the Bush v. Gore case in 2000, Justice Sandra Day O’Connor showed disdain for voters who had trouble with Florida’s disastrous punch-card ballots. After insisting that the directions “couldn’t be clearer,” she suggested that the court ignore the ballots of voters who had failed to master the intricacies. That is precisely what it did, by a 5-4 vote.
Since Bush v. Gore, disdain for voters has become the norm. The court rejected two successive challenges to gerrymandered Congressional districts. One was Tom DeLay’s brazen redrawing of the lines in Texas, which all but guaranteed a Republican victory and made the voters seem irrelevant.
The justices also seem poised, if comments during oral arguments are any indication, to uphold New York’s undemocratic process for selecting state court judges. An appeals court rightly ruled against the system of shadowy nominating conventions, which allows political machines to thwart the will of the voters and handpick judges.
It might seem that today’s court is simply judicially restrained, deferring to rules adopted by the democratically elected branches. Recently, however, the court struck down parts of the McCain-Feingold campaign finance law that limited “Swift boat” style attack ads on the eve of elections. It was perfectly willing to reverse a federal law when the political power of corporations and wealthy individuals was at stake.
The Indiana voter ID case should not be a hard one. Restrictions on voting are subject to heightened constitutional scrutiny, and the state cannot justify the enormous burdens the law imposes. There is no evidence that in-person vote fraud has ever occurred in the state, but there is considerable evidence that voters will be disenfranchised. Indiana could have deterred fraud in less harmful ways, including by accepting a wider range of ID’s.
Critics of the court are already dubbing the voter ID case Bush v. Gore II, and ascribing political motives. The Indiana law, like others nationwide, was pushed through by Republican legislators, evidently with the intent of reducing Democratic turnout.
The five conservative justices may like the fact that voter ID laws increase the odds that Republicans will hold on to the White House in 2008. Or they may have a disregard for poor and minority voters that transcends partisan politics. At the oral arguments, Chief Justice John Roberts suggested that if a voter has to travel 17 miles by bus to a clerk’s office to fight over whether his vote should count, it is no great concern since the trip is not “very far.”
When the court struck down parts of the McCain-Feingold law, Chief Justice Roberts emphasized that the Constitution “requires us to err on the side of protecting political speech rather than suppressing it.” When it comes to voters’ rights, the court appears eager to err in the opposite direction.