optimistic When I got into the story, I was expecting "Bush v Gore II: Bush Harder," yet another 5:4 vote by which the Republican judges sided with the Republicans. And I could already feel myself getting pinched in a tight place, pinched by my own insistence, a while back, that there are still enough safeguards in place to prevent dishonest and/or ignorant and/or partisan hacks from getting a majority on any appellate court bench in America. But then I went over to SCOTUSblog, which unsurprisingly has some excellent coverage of this, and saw that maybe, just maybe, my faith in the universe and in the robustness of American democracy was not entirely misplaced. Because the actual vote was 6-3, the actual official ruling has some interesting implications, and I think maybe there's a coincidence that even the analysts at SCOTUSblog haven't noticed. First, some links to the SCOTUSblog.com coverage, all dated 4/28/08:
- Lyle Denniston, "Court rejects voter ID challenge; no new grants," their main news story,
- Ben Winograd, "From Election Law Blog: Initial Thoughts on the Supreme Court’s Decision in Crawford," by a lawyer who filed an amicus brief against the Indiana voter ID law, and
- Jason Harrow, "More on Crawford: The Court Steps Back From Electoral Refereeing," by a lawyer who filed an amicus brief in favor of the Indiana voter ID law.
And if you look at the official ruling, its defense of this law is pretty tepid. Because what's really going on here, the side that really won (of the three sides), is the side that's on the winning side of a very long argument that's been going on these last couple of years about an entirely unrelated point of constitutional law: namely, the role of the Supreme Court in what are called facial challenges. A facial challenge is one in which someone argues that even though they can't show any one person who's been hurt yet by a law or other government action, and can't even show one actual plaintiff who will be hurt by it, they can still challenge the constitutionality of the law in front of the Supreme Court by arguing that the law is so blatantly awful on the face of it (the "face" in "facial challenge") that it must be struck down, preemptively, to protect the U.S. Constitution. What's going on here, pretty much all of the analysts from both sides agree, is that this is just the latest in a series of rulings, this year, in which the Supreme Court is sending a clear message: they want to get completely out of the business of hearing facial challenges. The three-vote ruling majority (by virtue of the 3-vote non-binding concurrence) as much as says, in the ruling, show us even one voter who's been improperly disenfranchised by this law, bring us a case in which that person has first been harmed by a voter ID law, then proven in a lower court that they've been harmed, and then that person will have the legal standing to challenge the constitutionality of these laws. Until then? They're saying "get out of our ... well, get out of our face," not to make too awful a pun out of it, I hope.
Which brings me to an interesting observation of my own. Note the timing of this ruling: one week, to the day, before the Indiana primary. One week from today, there will be Indiana voters who will have to vote by provisional ballot, then at their own expense travel to the nearest county seat sometime in the next 1 to 10 days and file an affidavit confirming that it was them who cast their ballot. (What, exactly, this proves, escapes me; anybody who impersonates a voter once will quite cheerfully do it twice, won't they? But that, apparently, is irrelevant to this one case, to Crawford v Marion County, IN.) And since there's an existing case, brought up in the footnotes of Crawford, that reminds us that even a $1.50 non-discriminatory poll tax was struck down as an improper burden on the right to vote, if it takes them more than 2/3rds of a gallon of gas to drive the round-trip, then they'll have standing to challenge this law. And isn't it an amazing coincidence that they issued this ruling in time for this new, non-facial challenge to be filed with respect to an election in which the Republicans can not actually benefit from any disenfranchisement that happens? Bet your bottom dollar that the Indiana Civil Liberties Union will be on the ground, next Tuesday, looking for that one victimized legitimate voter. And if nobody changes their votes between this case and that case, then the voter ID laws will be struck down, permanently, by the same bipartisan 6-3 majority, while allowing the Court to make its little political point about how much it hates having to decide facial challenges.