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National Issues

The United States Supreme Court at the Polls, in Arizona: The More Things Change… PDF Print Email
By Bob Bauer   
October 21, 2006

The Supreme Court of the United states ruled unanimously yesterday that Arizona may enforce Proposition 200, which requires voters to show a photo identification card at the polls on Election Day this year, despite a pending lawsuit by opponents who say the measure will disenfranchise the poor, minorities and the elderly.

 

Download the Supreme Court Opinion 

 

See also Analysis at Moritzlaw.com 

 

This article appeared on Bob Bauer's Blog. It is reposted here with permission of the author. 

 

It might have been thought—devoutly hoped—that the Supreme Court would measure its steps carefully without striding once again in the territory of Bush v. Gore.  But this was not to be: this urge to intervene in the electoral controversies of the day seems ingrained in its very constitution (in a manner of speaking).

Yesterday’s decision in Purcell v. Gonzalez  shows that the Court can be severely faulted on one of two grounds: 1) it is careless with the very appearance of its interventions, rendering decisions of political moment while lost in the weeds of intra-court politics; or 2) it knows precisely what it is doing.  In any event, in the middle of the struggle over enfranchisement mislabeled as a debate over fraud, the Court chose sides, advancing the prospects of one side of the conflict.  It did so with an insouciance that was fairly astonishing, assuring readers that it was withholding judgment on the merits and merely tending to proper order.

Of course, the Justices had their reasons. The Ninth Circuit Court of Appeals had enjoined the Arizona voter ID in flat but unexplained disagreement with a District Court. But the District had yet, as the Supreme Court concedes, to make findings of fact. The schedule for ultimate disposition might have been somewhat messy, but election law litigation does not travel the most orderly of paths, and the Ninth Circuit Order froze in place, putting off final adjudication to another day, restrictions on the franchise.


The Justices show little interest in this feature—or effect—of the lower court decision.  It chose instead to outline the case in favor of the very restrictions at issue. It opens its argument with a solemn reaffirmation of the evils of voter fraud. Then it takes the next step, to the certain exhilaration of John Fund, of extemporizing about the disenfranchising impact of simple fears, the very worry, about voter fraud.

Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.  

These are the speculations of a Court otherwise critical of the Ninth Circuit’s decision to proceed in the absence of lower court findings of fact. That the Supreme Court can freely disregard disciplines that its preaches to lower courts is, one supposes, what makes it supreme.

Now the zealous campaign to restrict the franchise depends mightily on the power of this argument.  Having failed to make the case especially for any major problem of voter impersonation, or for the inadequacy of current remedies to detect and punish it, the anti-fraud warriors must appeal to voter “confidence” and peace of mind. A strong empirical case, fit for legislative judgment, must be shored up if not replaced altogether by one focused on “fear” and “feeling” and “distrust” and “confidence”.  Critics of campaign finance regulation are well familiar with the pop psychology under-girding this kind of jurisprudence. The Supreme Court has now extended this thinking to the defining “right to vote” issues of the day.  

The Court tries to minimize the real-world impact of its behavior by commenting approvingly on the design of the Arizona law. Voters appearing without voter IDs are free to vote provisionally: they need only return with their IDs within five business days. And early voting, the Court notes, is an option, made available without the encumbrance of an ID requirement.  For this reason, the Court concludes that “the election procedures implemented to effect Proposition 200 do not necessarily result in the turning away of qualified, registered voters by election officials for lack of proper identification.”  The question, of course, is whether these procedures do have this disenfranchising “result”, even if we cannot now conclude that they “necessarily” do: and the Ninth Circuit chose to resolve the issue in favor of those voters, while the Supreme Court intervened, for all practical purposes, against them.

Nothing more suits the Court’s choice here than the concurrence of Justice Stevens, who commends the Court for its “wisdom.”  Now we will have a real election under these restrictions, he writes, and this will allow us to judge, from the results, whether the law produces disenfranchisement and the scope of any anticipated fraud.  We can’t make an omelet without breaking eggs, can we?  We will at least have “historical facts” rather than “speculation”, even if Stevens cannot say how we will know the full story of the resulting disenfranchisement, or how, in this election rather than in previous ones, we will come to some firmer empirical grasp on the “prevalence and character of…fraudulent practices.”  And how will we know, for that matter, how many voters, comforted by these requirements, will proceed to the polls rather than permit their “Fraudian” anxieties to keep them at home?

Multiple re-readings of Stevens’ finishing touch does not help to make it go down more easily.  In its shallowness, indeed in its callousness, it is a conclusion perfectly fitted to the opinion as a whole. But the Supreme Court’s action in Purcell v. Gonzalez is not only a problem of design or execution.  It is a success, the dimensions of which cannot yet be gauged, for the growing movement to burden and restrict voting by those most vulnerable to attack.
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