Missed opportunity ID’ed

OPINION:

The United States Supreme Court missed a golden opportunity to blunt the exploitation of legislative power for partisan political advantage through manipulating electoral rules in Crawford v. Marion County Election Board (April 28, 2008).

There the court upheld an Indiana “Voter ID Law” whose transparent motivation was to benefit the Republican Party. It requires a photo ID issued by the federal or state government to cast an in-person ballot. The voting head wind created by the photo ID requirement disproportionately handicaps groups inclined to prefer Democratic over the Republican candidates in Indiana: the poor, the elderly, the disabled, and minorities.

The fear of voter fraud was concocted. Indiana’s Republican state legislators who cobbled together the law knew that for 192 years since Indiana joined the Union in 1816, or for more than two sightings of Halley’s Comet, not a single case of in-person voter impersonation at polling places had been recorded!

The court in Marion County should have declared that voting laws primarily calculated to boost the fortunes of a political party are unconstitutional. They war with the electoral principal that parties should prosper or falter based on their responsiveness to voters; and, they advance no licit constitutional purpose.

Article VI, clause 3 of the United States Constitution declares: “The senators and representatives before mentioned, and members of the several state legislatures… shall be bound by oath or affirmation to support this Constitution.”

Most members of Congress and state legislatures, however, are ignorant of the Constitution they are sworn to uphold. They generally are unable to distinguish between the Bill of Rights, the Declaration of Independence, George Washington’s Farewell Address, and Abraham Lincoln’s Gettysburg Address. Their knowledge of freedom of speech, the Commerce Clause, habeas corpus, or separation of powers is sophomoric. They do not appreciate that the Constitution nowhere mentions political parties or hints that voting rules could be skewed for the sole objective of favoring one party over another.

Their intellectual universe is largely confined to inventing “wedge” issues to divide their political opponents. The result is a legislative agenda wildly discrepant from the purposes enumerated in the Constitution’s Preamble.

Indiana’s Voter ID Law is emblematic. In the state legislature, 52 Republican House members voted for the bill, 45 Democrats voted against. In the Senate, 33 Republican senators voted in favor and 17 Democratic senators voted against.

The bill addressed an imaginary problem: namely, voter fraud by in-person voter impersonation at polling places. Indiana had never encountered the problem. No evidence even hinted that it might become a future problem. A criminal penalty deters would-be impersonators. Moreover, a single instance of voting fraud would be politically senseless and relatively easy to detect by precinct workers who know their community.

On the other hand, large-scale organized campaigns of impersonation could affect electoral outcomes, but would be virtually impossible to conceal. As Benjamin Franklin reminded, “Three may keep a secret if two of them are dead.”

Legislators characteristically respond to immediate crises or clamors from special interest lobbies craving an economic or other edge. When, as with Indiana’s Voter ID Law, legislators act on their own initiative, the suspicion is overwhelming that partisan mischief is afoot.

Indeed, the federal district court in Marion County described the litigation as a partisan dispute that had “spilled out of the state house into the courts.”

The law should not be blind to what everyone can see. It would be vain to deny that Indiana’s Republican state legislators raised a barrier to in-person voting in hopes of gaining an electoral advantage, simpiciter.

A constitutional doctrine that invalidated electoral laws because of an illicit partisan motivation would be no novelty. The equal protection clause of the 14th Amendment condemns laws afflicted with a racially discriminatory intent. Thus, in Hunter v. Underwood (1985), the Supreme Court invalidated a provision in the Alabama Constitution of 1901 that disenfranchised persons guilty of crimes of moral turpitude. Writing for the court, then Associate Justice William H. Rehnquist reasoned that the disfranchisement standard had been chosen “to establish white supremacy in this state.”

The establishment clause of the First Amendment similarly prohibits laws inspired to advance religion. So, in Wallace v. Jaffrey (1985), the court nullified an Alabama “Moment of Silence” law whose sponsors professed their intent to return voluntary prayer to public schools.

In sum, courts would not be at sea in determining whether an electoral law was motivated by an illicit desire for partisan advantage. Further, invalidation for partisan motivation would not handcuff the legislature in addressing genuine as opposed to contrived electoral problems. It would simply require the legislative discourse to stay inside a broad constitutional playing field. Legislators might be motivated to learn something about the Constitution.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.