Fisher’s Day in Court
…the High Court, that is. As reported in an earlier post, Indiana’s Solicitor General and classmate Tom Fisher finally presented his arguments before the U.S. Supreme Court on Wednesday. (Wabash story) The question: Does a law that requires voters to present either a state or federal photo identification unduly burden citizens’ right to vote? You’ll remember that Tom helped out when Wabash students argued this very question in this fall’s Moot Court.
If you want to learn more about the controversial and thought-provoking case, check out the New York Times story. If you want to look over the transcript of the case, click here. When the audio is available, it will be posted here. And just for fun, we found an artist rendering of his appearance!
Because the Indianapolis Star keeps stories online for only a week, I’m reprinting it here. We’ll see if we can get Tom’s impressions of his performance and post the justices decision later this year.
Justices seem hesitant to toss Indiana’s voter ID law
Some on high court appear to search for middle ground on law that is toughest in nation
WASHINGTON — Some Supreme Court justices questioned Wednesday whether Indiana could fashion a voter identification law that would help prevent fraud but be less burdensome than the law the state passed in 2005.
But the justices appeared reluctant to throw out the law, considered the toughest in the nation, that requires voters to show a photo ID issued by the federal or state government.
“You want us to invalidate a statute on the ground that it’s a minor inconvenience to a small percentage of voters?” asked Justice Anthony Kennedy, a frequent swing voter.
Challengers, who include the Indiana Democratic Party, say the law places substantial practical and financial burdens on voters, particularly on the poor, the elderly, minorities and others who might be less likely to have a driver’s license or passport and more likely to vote Democratic.
Kennedy asked whether there are ways “the central purpose of this law can be preserved but it could be less stringent.” Justices Stephen Breyer and Ruth Bader Ginsburg asked whether it would work to take photos of voters at the time of registration.
Indiana Solicitor General Thomas M. Fisher responded that the system chosen by the Indiana General Assembly has been proved effective and that a government-issued ID is accepted worldwide as identification.
“It’s worth bearing in mind that this form of identification is necessary to do so many everyday activities,” Fisher said. “And it’s not as if the state of Indiana went out and created an entirely new system.”
Those without a driver’s license or passport can get a free photo ID from the Bureau of Motor Vehicles if they have a birth certificate or a certificate of naturalization plus another document that shows their name and address.
Paul Smith, the attorney for the plaintiffs who argued before the court, cited the Lafayette Urban Ministry, which tried to help 150 lower-income people get photo IDs. About half could not complete the “bureaucratic maze” because they did not have the photo identification needed to obtain a birth certificate.
Smith said the court’s job is to weigh the burdens on voters and decide whether they’re justified in preventing people from impersonating others at the polls.
Unless the benefits outweigh the burdens, Smith argued, the court must throw out the state’s law.
The justices wrestled with whether there’s sufficient evidence to either show Indiana has a problem with voter-impersonation fraud or evidence that the burdens on voters are too great.
Ginsburg pointed to the November municipal elections in Marion County, where the Election Board said 34 people needed provisional ballots because they did not have the proper ID. Only two completed the provisional balloting procedure by bringing proper identification to the county clerk’s office later so their votes would be counted.
“It does give you some confirmation that it isn’t mere speculation that there are going to be many people whose vote will not count,” Ginsburg said.
Fisher, however, said it’s not known why the Marion County voters didn’t complete the voting process.
“For all we know,” he said, “those may have been fraudulent ballots.”
Although there’s no record of people impersonating others at the polls in Indiana, the state argued it could have been happening because Indiana has one of the most inflated voter registration lists in the country. Indiana has admitted to federal officials that it hadn’t been adequately purging ineligible voters and is under a consent decree to do better. But Fisher said local authorities are under no requirement to cancel the names of duplicates and deceased voters identified by the state.
“Are you making the argument that you can place a heavier burden on voters to identify themselves because your state officials refuse to follow the law?” asked Justice David Souter.
But Chief Justice John Roberts was sympathetic to the state’s argument that in-person voter fraud is hard to detect and therefore it’s hard to know how often it occurs.
Smith countered: “Many kinds of fraud do get caught, and they are no more easily detected than this kind of fraud. But this kind of fraud is not being caught. No one has been punished for this kind of fraud in living memory in this country.”
Justice Antonin Scalia questioned whether the law even could be challenged by the Democratic Party, rather than by a voter.
“Why can’t the people injured by this law appear themselves?” he asked.
Smith said the challenge was brought before an election was held, so the plaintiffs do not include a voter who was unable to cast a ballot.
The case, which is the first big election law dispute heard by the Supreme Court since it decided the 2000 presidential election, is expected to be decided before the 2008 general election.
A survey released Wednesday by American University’s Center for Democracy and Election Management found that more than two-thirds of registered voters in Indiana, Mississippi and Maryland would trust the election system more if voters had to show an ID. About 1.2 percent of those surveyed lacked a government-issued photo ID, which the center’s co-director said shows the photo ID requirement is not a serious concern.
Co-director Robert Pastor said ID requirements have given the false impression that they disenfranchise voters because they have not been implemented uniformly and gradually.
“States could transform what was perceived as a problem into an opportunity by sending mobile units to actively register voters and provide them free photo IDs,” he said.
