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The Court Fumbles on Voting Rights
The New York Times | Editorial
Tuesday 29 April 2008
Democracy was the big loser in the Supreme Court on Monday. The court upheld
Indiana's voter identification law, which solves a nearly nonexistent problem
by putting major barriers between voters - particularly minorities -
and the ballot box. Worse, the court set out a standard that clears the way
for other states to adopt rules that discourage disadvantaged groups from voting.
It is a sad reversal for a court that once saw itself as a champion of voting
rights.
In 2005, Indiana passed one of the nation's toughest voter ID laws. It requires
voters to present government-issued photo ID at the polls. Private college IDs,
employee ID cards and utility bills are unacceptable. For people without a driver's
license - who are disproportionately poor and minority - the burden
is considerable. To get acceptable ID, many people would be forced to pay fees
for underlying documents, such as birth certificates.
This should not have been a hard case. The court has long recognized that the
right to vote is so fundamental that a state cannot restrict it unless it can
show that the harm it is seeking to prevent outweighs the harm it imposes on
voters.
The Indiana law does not meet this test. The harm it imposes on voters, some
of whom will no doubt be discouraged from casting ballots, is considerable.
The state's interest in the law, on the other hand, is minimal. It was supposedly
passed to prevent people from impersonating others at the polls, but there is
no evidence that this has ever happened in Indiana. It seems far more likely
that the goal of the law's Republican sponsors was to disenfranchise groups
that lean Democratic.
Unfortunately, only three justices voted to hold the law unconstitutional.
The other six fell into two groups. Three - Justices John Paul Stevens
and Anthony Kennedy and Chief Justice John Roberts - signed a lead opinion
that set a disturbingly low bar for what sort of interference with voting the
Constitution permits. A second opinion, signed by Justices Antonin Scalia, Clarence
Thomas and Samuel Alito, was worse. It argued for upholding all but the most
severe and unjustified burdens on voting. Richard Hasen, a Loyola Law School
professor, notes that if the court had taken this opinion's approach in 1966,
it is not clear it would have overturned the poll tax.
Hovering over Monday's decision was a case that was not mentioned: Bush v.
Gore. In 2000, the Supreme Court took seriously the claims of one individual
- George W. Bush - that his equal protection rights were being denied
by a state election system, and the court had no hestitation about telling the
state what to do.
On "60 Minutes" on Sunday, Justice Scalia yet again told the public
to "get over" that ruling. There are many good reasons to remember
Bush v. Gore, and Monday's ruling was a reminder of one of them. Seven years
after it invoked the Constitution to vindicate what it saw as Mr. Bush's right
to fair election procedures, we are still waiting for the court to extend this
guarantee with equal vigilance to every American.
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