Why progressives should not get too excited by the Recent Supreme Court Photo ID ruling

[usregimechange]

The petitioners brought a facial challenge to the Indiana law.

"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987).

Contrast with an as-applied challenge.

Justice Stevens, the author of the majority opinion, cites this a number of times a "facial attack":

"Given the fact that petitioners have advanced a broad attack on the constitutionality of SEA 483, seeking relief that would invalidate the statute in all its applications, they bear a heavy burden of persuasion."

He notes that the decision was reached “on the basis of the record that has been made in this litigation" and broadly criticizes the lack of evidence presented by the petitioners at the trial court level. He goes on to list the scant evidence in section IV and concludes: "From this limited evidence we do not know the magnitude of the impact SEA 483 will have on indigent voters in Indiana."

Justice Scalia, joined by Justice Thomas and Justice Alito supported a more broad view that would have given state's a green light to start crafting these laws up. "This is a generally applicable, nondiscriminatory voting regulation." That is two short of a majority.

In other words, Stevens and Kennedy, who did not join Scalia's concurring opinion, basically said that there is insufficient evidence to invalidate the law based on a facial challenge not that such evidence does not exist or could not be quantified as it was in Missouri and sent back up as an as-applied challenge. Breyer makes special mention of this quoting Stevens.

[usregimechange]

1. Plus remember that some State courts have invalidated photo ID laws based on their STATE Constitutio

[cloudythescribbler]

2. But some SWING states have restrictive laws about voter IDs -- like MI and FL

Remember, cheating in ONE key swing state can swing a reasonably close election. I think that someone with grant money should do a comprehensive study of voting patterns.

What galls me in all these cases is that there is ZERO standard of proof that the state has to meet as far as the existence of any voter fraud problem, let alone a problem widespread enough to warrant burdening voters with ID laws. In principle, the notion that these laws have the OBVIOUS purpose of keeping down voting turnout among constituencies likely to vote for the Democrats (one of those common sense arguments, the kind the Supreme Court voted DOWN in segregation cases until the sociological findings scratched them where they itched) really ought to be sufficient.

When you rely on sociological studies, often whoever has the most money to sponsor "studies" and their often rigged "results" wins the day. In the case of Brown v Board, a study a few years later put the findings in jeopardy -- as a 'study' "showed" better performance of black students in segregated schools than in mixed-race ones.

The laws are made and upheld on the basis of political agenda, but to overturn them requires a special ritual. (This was also true of attempts to cite "recent research" by Brennan in efforts in the 1980s to overturn the invidious 11th Amendment doctrine of Hans v Louisiana -- another product of the same era and agenda as Plessy.

Our "legal" system was made so that underground privileged Tories would get their way, just like the Weimar Republic jurisprudence was so often the lap-dog of the Nazis.

[usregimechange]

3. Good point

[ProgressiveEconomist]

4. K&R(#3). Good catch. IMO, preventing this kind of partisan attack on voting rights

in the future would best be accomplished by a replacement for the "Help America Vote Act" with MANDATORY national standards and goals for fair elections.

In particular, as Carter-Baker Commission dissenter Prof. Spencer Overton declared, every potential state "improvement" in voting rules must be forced to pass a cost-benefit analysis test. If the purported "improvement" would deter more legitimate votes than the number of fraudulent votes it reasonably could be expected to prevent, it CANNOT be allowd to stand.

The three justices who voted "NO" to upholding the Indiana lower-court ruling applied the kind of cost-benefit analysis I'm suggesting. See the GD thread at http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x3223625 for links.

[Postman]

5. republicans want voter ID cards but no paper trails from electronic voting machines.

Hypocrite republicans are all for a government ID card when it's existence is designed to limit voters from voting but they're up in arms when an ID card is proposed for a national healthcare plan, screaming they don't want the government to pry into their business.

Guess what a social security card is?, you friggin' schmucks...