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Supreme Court Allows Voter ID Law:
Surprising action on a Friday afternoon from the Supreme Court: The Court vacated the Ninth Circuit's order that had enjoined Arizona's Voter ID law: the 6 page per curiam opinion is here. The gist of the Supreme Court's decision is that the Ninth Circuit enjoined the voter ID law with an entirely unreasoned 4-sentence order, and this was a no-no:
Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of aninjunction, considerations specific to election cases and its own institutional procedures. Court orders affectingelections, especially conflicting orders, can themselvesresult in voter confusion and consequent incentive toremain away from the polls. As an election draws closer, that risk will increase. So the Court of Appeals may havedeemed this consideration to be grounds for prompt action. Furthermore, it might have given some weight to thepossibility that the nonprevailing parties would want to seek en banc review. In the Ninth Circuit that procedure, involving voting by all active judges and an en banc hearing by a court of 15, can consume further valuable time. These considerations, however, cannot be controlling here.It was still necessary, as a procedural matter, for the Court of Appeals to give deference to the discretion of the District Court. We find no indication that it did so, and we conclude this was error.

Although at the time the Court of Appeals issued its order the District Court had not yet made factual findings to which the Court of Appeals owed deference, see Fed. Rule Civ. Proc. 52(a), by failing to provide any factual findings or indeed any reasoning of its own the Court of Appeals left this Court in the position of evaluating the Court of Appeals' bare order in light of the District Court's ultimate findings. There has been no explanation given bythe Court of Appeals showing the ruling and findings ofthe District Court to be incorrect. In view of the impending election, the necessity for clear guidance to the State ofArizona, and our conclusion regarding the Court of Appeals' issuance of the order we vacate the order of the Court of Appeals.
Thanks to Howard for the link.

  UPDATE: Perhaps the most interesting aspect to this case is that it reveals a continuing interest among the Justices in the workings of elections, even post Bush v. Gore. Here the Supreme Court treated a request for a stay as a cert petition, granted the petition, and reversed — that's something rare enough to seem sort of like a lightning bolt from above. Of course, we're dealing here with the Ninth Circuit, so maybe the Court's interest is narrower, but I wouldn't be surprised if the Court gets involved in more election cases in the future.

  Commentary from Rick Hasen is here.

  ANOTHER UPDATE: The Ninth Circuit's 2-judge order below is here, and was signed by Judges Tashima and Willie Fletcher.
Steve:
In Ex Parte Quirin, a case that has attracted no small amount of attention of late, the Supreme Court decided to issue a hasty order due to the press of time, and worry about justifying it with an opinion later. Many of the Justices came to later regret handling the case in such a manner.

Incidentally, I find Justice Stevens' concurring opinion completely bizarre. "This decision will let the election go forward with the voter ID requirements that might or might not be unconstitutional in place... but that's a GOOD thing, as it means we will have better evidence about how many people were actually disenfranchised!" Well it's good, I suppose, if you think of this election as just some trial run with no real consequences for anyone.
10.20.2006 6:12pm
Major John (mail) (www):
Shocking - the Supremes actually want an Appellate Court to follow Rules and provide facts and reasoning. The 9th adds more luster to its already gleaming reputation with the Supremes...
10.20.2006 6:18pm
John (mail):
It is interesting that they not only vacated the Ninth Circuit order, but went on to say, "Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules."

This seems to suggest that the Ninth Circuit shouldn't even go for the mulligan in the next couple of weeks, before the election. That seems odd to me, unless you accept the Stevens rationale of let's see how it works before deciding anything.

Both the "hands off" comment, and the Stevens notion seem quite odd. Or am I wrong here?
10.20.2006 6:29pm
Daedalus (mail):
Amazing.....I finally feel like my vote will count again. As a resident of Arizona, this issue has been the subject of much discussion and other not so polite actions. However, when you see people in line to vote that need interperters and foreign language ballots, you must ask yourself why they are there, and what their real understanding of the issues are, particulary when a command of English is a requirement of citizenship.....or are they just voting at someone's direction and don't really understand the issues. I don't have an answer to the question, but do believe it is a valid question.
10.20.2006 6:31pm
Beyondo:
Steve,

A skeptic might say that Stevens is "counseling" the activists of his political stripe to keep Arizona clean. He hints that if they pull Arizona off with no real evidence of attempted fraud, then that weighs into the analysis. A skeptic would suggest he's writing the script to get the law overturned by letting the people who oppose the law know that they need to be alert for and shut down any pro illegal voting, at least in Arizona, during the coming election. Then the "chilling effect" of the ID requirement will look large in comparison to the amount of fraud evenutally not found. See how that works.
10.20.2006 6:32pm
Steve:
Yeah, it's amazing how "skeptics" have no problem reinventing anyone to the ideological left of center as a partisan Democrat, but that's still a pretty implausible argument for the "skeptics" to make.

What I take your comment to mean is that the "skeptics" believe the evidence is already in, and any contrary indications from this election will be taken as intentional manipulation designed to impact the outcome of the court case. You're probably right.
10.20.2006 6:45pm
Houston Lawyer:
Stevens is saying that he'd like to see some facts, not just speculation. I'm OK with that.

There are about 12 million illegal immigrants and quite a few more legal immigrants in this country. They are not entitled to vote. Despite this fact, there are organizations that are encouraging these people to vote. As the per curiam opinion states, allowing fraudulent votes is every bit as damaging as preventing proper votes.

I've worked as a poll watcher. The id you can provide to vote is a joke.
10.20.2006 7:04pm
John Thacker (mail):
"This decision will let the election go forward with the voter ID requirements that might or might not be unconstitutional in place... but that's a GOOD thing, as it means we will have better evidence about how many people were actually disenfranchised!" Well it's good, I suppose, if you think of this election as just some trial run with no real consequences for anyone.

Well, he's actually saying that we'll have evidence on:
1) How many people were illegitimately prevented from voting, and
2) How many people were prevented from voting fradulently.

Justice Stevens is acknowledging that there are interests on both sides, and thus the Constitutionality depends (in his mind) on how burdensome the requirement is vs. how effective it is at preventing fradulent votes.

Surely fradulent voting disenfranchises voters. Suppose that some Diebold voting machines counted everyone's votes, but also added a few thousand extra into one column, tipping the result. Certainly wouldn't you think that some voters had been disenfranchised?
10.20.2006 7:10pm
Beyondo:
Steve,

Please save the outrage.

Faced with this ruling the opponents of the voter ID have two "options" and this should be plain to anyone.

Under the first option (one championed to great success by the ACLU in civil rights cases - i.e., in the "reading" and other poll tests of the Jim Crow era), they would get as many latino, poor, but legal citizens to the polls so as to have them turned away and produce evidence of the chilling effect. The problem is that this approach (even unbeknownst to the voter ID opponents) could easily provide cover for a large number of attempting voters who turn out to be non-citizens. That would be dramatic and terribly harmful to their goals, and Stevens is making sure they know that. Its very easy for the PROPONENTS of the Voter ID thing to go to the public and say: "Look, for every one of these non-citizens who votes, that cancels out the vote of a citizen as if that citizen never even voted." It also provides the kind of direct evidence of voter fraud that would be looked at to sustain the law requiring voter ID checks.

The other approach available to the anti voter-ID forces is an expensive canvase and study which focuses on voter turn out, especially under minority and poor areas, and which by multiple regression analysis attempts to isolate the impact, among other factors, of the need for identification as something that kept from the polls people who would have gone there but for the new law. Stevens is hinting they'll need to go this route in order to keep the election clean. A dirty election basically wins the case for those wanting a voter ID thing.

Good day.
10.20.2006 7:10pm
Robert West (mail) (www):
Something I don't understand which I wish the more legally knowledgeable could answer for me:

Why is it that laws which require people to pay for IDs in order to vote (since state IDs are not free) do not run afoul of the 24th Amendment? It seems to me that requiring people to buy an ID is a <em>de facto</em> poll tax, insofar as it boils down to an indirect requirement that people shell out money in order to vite.

(Of course this argument would not apply if the ID were free.)
10.20.2006 7:18pm
Syd (mail):
Robert West: They do run afoul of the 24th Amendment if the ID is not free.
10.20.2006 7:21pm
Beyondo:
Robert West:

If you live more than a mile from the polling place, does the fact you have to either miss work (i.e., give up regular wages), or take a bus (i.e., pay bus fare) seem to you to be a "poll tax"? Is it a poll tax if we do not personally pick up and drive, at government expense, everyone who wants to vote but cannot pay today's gas prices to do so?

I make a couple of absurd points, but my recollection of the poll tax cases was that there was a fee charged that had no nexus to anything other than the privilege of voting, and that fee was only related to the privilege of voting. The drivers' license or state I.D. costs money, sure, but that fee is not limited in its application to something that hits you just to vote. Its a fee justified and with a nexus to the general purposes of the license or ID more broadly. Its an expense of living and going about your life in modern American, just like bus fare and gas expenses.
10.20.2006 7:24pm
Robert West (mail) (www):
Beyondo: not so, sir! Until i got a driver's license at the ripe old age of *30*, I survived *just fine* without a state ID.

There are people who do not have an ID, and never have a need for one, who would be required to get one specifically for the purpose of voting. How is that not a poll tax?
10.20.2006 7:26pm
MnZ (mail):
Orin Kerr said:
I wouldn't be surprised if the Court gets involved in more election cases in the future.


Hmmm...I wonder if the Court should consider International legal norms in Voter ID cases.
10.20.2006 7:35pm
err (mail):
Wait, is the contention that if you purchase an ID specifically for voting, it's a poll tax, but if the state gives you an ID, and the cost of the ID is payed by tax revenue, then it's ok?
10.20.2006 7:35pm
KingOfMyCastle:
Robert, I do not mean this as an insult, but you are a bit of an oddball. I'm sure the number of people without any form of state ID/drivers license/passport/military ID is incredibly small. Since you need them to cash checks, buy alcohol, board a plane, buy cigarettes, drive a car, and many other things that most people consider a part of everyday life, it's not an unreasonable expectation that they be required to vote.
10.20.2006 7:36pm
nemo:
Robert West

People are currently required to present ID for the purpose of voting everywhere that I know of. Is that not the case where you live?

This ID can take different forms, such as college ID and utility bills. Leaving aside the fact that such ID's do not meet the constitutional requirement of proof of citizenship, the fact is that they cost money, usually a lot more money than the ID's being struck down.

A utility bill typically runs $30-$50/month. Using these as voter ID looks a lot more like a genuine poll tax than the proposed new voters ID's.
10.20.2006 7:39pm
The Human Fund (mail):
I am mostly certain that in Mississippi, poll workers are prohibited from asking you for a form of ID.

I am completely certain that in the times I voted in Mississippi, I was never asked for an ID, and neither was anyone in line with me.
10.20.2006 7:41pm
dick thompson (mail):
If you ever got a check and tried to cash it or if you ever tried to buy a bottle of beer or wine or if you ever tried to charge something or if you ever tried to buy an airplane ticket (or bus ticket these days), then you need a valid ID. In some states you need a valid ID to enter a club or buy a pack of cigarettes or get a prescription. Actually you have to have a valid ID to get a job if the companies follow the law, and if they don't they can get fined. I know that when I got a job here in NYC I had to provide a valid ID to show that I was who I said I was.

Given all that why is it a problem to have voters provide an ID to get to vote? It just seems to make common sense to me that if you want to vote and you have to be a citizen to vote, then provide an ID to show that you are a citizen. No biggie. You need it for almost anything else you do.
10.20.2006 7:44pm
nemo:
Human Fund, how do you register to vote? I'm certain that you do have to provide some sort of ID.
10.20.2006 7:46pm
Eric Anondson (mail):
Wait, is the contention that if you purchase an ID specifically for voting, it's a poll tax, but if the state gives you an ID, and the cost of the ID is payed by tax revenue, then it's ok?

Indeed, would the difference then seem to be between forcing someone to pay the cost directly, and forcibly taking the equal amount through a hidden mechanism to cover the cost?
10.20.2006 7:53pm
Robert West (mail) (www):
KingOfMyCastle: I agree that i'm a bit of an oddball, and that the number of people in the situation I describe is small. However, the class is not empty; particularly since passports do not meet the criteria for ID in the case of many of the laws I have seen; they have to be issued by the state, not the federal government. Since it is possible for people to go about their lives without ID, and since there are people who do, I find requiring ID in order to vote to be unreasonable --- unless those IDs are provided free of charge. Otherwise, there exists a class of people who can only vote if they give the state money for the privilige of voting.
10.20.2006 7:55pm
nemo:
Robert West

If you lack any ID, how do you register to vote?
10.20.2006 7:56pm
Robert West (mail) (www):
Nemo: I have been a pollworker in counties in the state of California during every election save one since 1992.

Prior to 2004, poll workers were prohibited by state law from asking for state-issued identification. Under certain circumstances, say when the voter had moved within the last 28 days, we could ask for proof of residence, but not proof of identification —- unless someone had challenged the voter's right to vote. Absent such a challenge, asking for ID was illegal.

After 2004, certain voters marked as such in the roster *had* to be asked for identification, but it was illegal to ask anyone else.

(In answer to your last question: in California, when you register, you check a box saying that you swear under penalty of perjury that you are a US citizen, and you provide on the form either your state DL/ID number or your SSN. You are never required to show ID to anybody).
10.20.2006 7:56pm
The Human Fund (mail):
Nemo, it appears that you're correct:
10.20.2006 7:57pm
Robert West (mail) (www):
Also, prior to the adoption of HAVA at the federal level, you did not need to provide DL or ID; you just filled out the form and swore you were a citizen.
10.20.2006 7:57pm
Robert West (mail) (www):
Eric: ISTM that anyone who can't afford the USD$6 to pay for the state ID is not going to be paying much in the way of taxes, either.
10.20.2006 7:58pm
Robert West (mail) (www):
Dick Thompson: since I was able to establish a checking account without an ID, have bought alcohol without an ID, and worked for many years without a state-issued ID (because other things are acceptable proof of right to work), I question the validity of your claims regarding these things. :)
10.20.2006 8:00pm
nemo:
Robert West

".. in California, when you register, you check a box saying that you swear under penalty of perjury that you are a US citizen, and you provide on the form either your state DL/ID number or your SSN"

So you are saying that anyone in California can vote, regardless of their status?

The US Constitution, and most state constitutions, place certain restrictions on voting. Typically, you must be a US citizen, must be resident in the state and locality you are voting in, and (often) must be of "sound mind".

These are constitutional requirements, not options. I have trouble understanding how any law aimed at enforcing the Constitution can be un-constitutional or unlawful.
10.20.2006 8:05pm
Robert West (mail) (www):
Nemo: I'm saying that in California, in order to register to vote, you fill out a form and mail it in. The form requires you to provide either your DL # or SSN, but it did not prior to 2004. If you provide those numbers, the poll workers are not allowed to ask for ID. If you don't provide those numbers, poll workers are required to ask for ID.

It's almost entirely honor system. Yeah, you aren't allowed to vote if you're a felon, for example, and you are required to vote in the precinct where you live. But the enforcement mechanisms are weak.

I have trouble understanding how any law aimed at enforcing the Constitution can be un-constitutional or unlawful.

Surely there are unconstitutional means which cannot be used in the pursuit of constitutional ends? What I'm after here is a legal rationale for why requiring people to give money to the state for an ID which they must use to then vote is not an unconstitutional poll tax. That the end being served is constitutional doesn't seem to me to reflect on whether the means being used is.
10.20.2006 8:10pm
nemo:
CALIFORNIA CONSTITUTION
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL


SEC. 2. A United States citizen 18 years of age and resident in
this State may vote.

===========

This was written in an earlier age. Nowdays the first thing we would notice is that it does NOT say that a non-citizen may not vote, nor a twelve-year old for that matter. I'm sure the 9th Circuit will give this their due attention.
10.20.2006 8:11pm
KingOfMyCastle:
I'm by no means an expert on poll taxes, but my understanding is that they were used to specifically target minority voters to prevent them from voting. They also often contained grandfather clauses that gave a pass to previously registered (white) voters.

Requiring a drivers license doesn't single out any group and no group is given an exception. The fees for ID aren't prohibitive.
10.20.2006 8:12pm
Robert West (mail) (www):
Note that under HAVA, the registrar is required to check your DL/SSN before allowing you to vote, so in some sense *a form* of ID is required. However, the SSN isn't a picture ID, and I believe that you don' thave to pay money to get one.
10.20.2006 8:13pm
KingOfMyCastle:
Robert, how about a compromise...

The states begin issueing FREE state ID's that can only be used for voting purposes.
10.20.2006 8:16pm
Robert West (mail) (www):
KingOfMyCastle: I'll get on that bandwagon with no complaint whatsoever.
10.20.2006 8:19pm
nemo:
Robert West

"It's almost entirely honor system."

Yes, it sounds that way. But I don't see a compelling rationale for keeping it that way.


You wonder "why requiring people to give money to the state for an ID which they must use to then vote is not an unconstitutional poll tax."

You are asserting that ANY form of voter ID is a "poll tax", if I read you correctly. The term has a precise historical meaning, and its not the one you are giving it.

NY requires a drivers license, a bank statement, a utility bill, or some other form of government documentation showing name and address. This the norm from what I can see. And these laws have never been struck down as being a poll tax, even though all require the voter to spend money.
10.20.2006 8:23pm
Dave in W-S (mail):
I lean heavily to the side of preventing voter fraud. But I can see some merit in the insistence that those (relatively few) who might potentially be disenfranchised by the burden of paying for a state ID should be provided with an acceptable ID freeof charge. Several states have already made that part of their Voter ID proposals.

Having said that, I also have to say that I can't envision a large number of voters who would fall into that category. I would prefer to see the taxpayer absorb the cost only in the event of hardship, not universally. If the state provides everyone with an ID free of charge, I can see a slippery slope where possession of the ID is compulsory, and that, in my estimation, would be unacceptable to a large number of people.

The need to eliminate and prevent voter fraud is critical. The discussions I have seen in this thread are all about the mechanics of doing it and that is as it should be. However, I am highly suspicious of any who oppose voter ID as a matter of principle. Why would any responsible citizen see the elimination of voter fraud as a bad thing?
10.20.2006 9:03pm
arbitraryaardvark (mail) (www):
I post here as arbitrary aardvark. In meetspace, I'm Robbin Stewart. I blog extensively about voter licenses at ballots.blogspot.com where yesterday I posted a draft of a voter ID lawsuit I hope to file next week in Indiana. gtbear at gmail.
I, and my roommate Joell Palmer, were prevented from voting in the primary,and expect to be prevented from voting in the general election if we can't get an injunction.
Palmer does not consent to a search. His right to not consent to a search was upheld in Indianapolis v Edmonds.If the state wants to go through his pockets, they can get a warrant. Denying him the vote is voter fraud. He is a duly registered voter, personally known to the precinct officials. he does not need to be poor to object to a poll tax. Missouri and Georgia courts have found that voter ID is a poll tax as well of a violation of numerous provisions of the state constitution.
I posted to the election law list about a month ago requesting "lawyers guns and money." I can't do all this alone. For an aardvark, I'm a pretty good lawyer, but I recognize the other side has me outgunned, and time is short.
Preventing illegal aliens from voting is a reasonable goal. The way to accomplish this is at registration. One a person is duly registered, they have a right to vote. If you think the person trying to vote is not the actual registered person, document your reasonable suspicion and apply for a warrant. My ancestors fought a war over this point at one time. Declaration of Independence. Incidentally, neither Palmer nor I is a Democrat; this isn't about partisanship, it's about vested rights and democratic process.
10.20.2006 9:21pm
Syd (mail):
KingOfMyCastle:
I'm by no means an expert on poll taxes, but my understanding is that they were used to specifically target minority voters to prevent them from voting. They also often contained grandfather clauses that gave a pass to previously registered (white) voters.

Requiring a drivers license doesn't single out any group and no group is given an exception. The fees for ID aren't prohibitive.


Eh, it singles out those who don't drive.
10.20.2006 9:27pm
Greowulf (mail) (www):
Syd: It doesn't even single out those who don't drive. Arizona, at least, offers a state ID, which you need anyway to cash your paycheck. It costs $12. That's 2 trips to McDonalds. It's also free for anyone on SSI, disability or anyone over 65. Hardly what I'd call a hardship. Based on the price of milk, it means cutting 250 calories out of your diet each day for a month (which would probably help many people). If you feel that strongly about it, lobby the Catholic church and others to raise funds to help those who are truly unable to afford a one time fee of $12 (of whom I am certain there are very few).

Aardvark: honestly, what is the big deal about pulling your wallett out to prove you are who you say you are? You already have to give your name to make sure you're on the list. What takes more effort and consumes more public funds, asking someone to pull out their wallett at the polls or "document[ing] your reasonable suspicion and apply[ing] for a warrant", then having the police investigate each and every allegation of fraud? Utterly ridiculous.
10.20.2006 10:36pm
dick thompson (mail):
When you open a bank account you are legally supposed to provide a SSN number or some other ID before the bank can open it. That is because if you should ever deposit over $10K to your account, the bank is legally required to notify the feds that you did so they can expect something to show up on your IRS forms. When you get a job the company is legally supposed to state that they have a copy of some form of ID that proves you are a citizen or are legally eligible to work in the US. If they do not have that on file they can be fined big time for not being able to prove that you have shown you are legal to work. When you get a driver's license you are supposed to show that you are who you say you are or they are not supposed to allow you to drive. Failure in any of these matters is actually breaking the law and those who permit it can be fined big time. In the case of the companies who permit you to work without providing proof of being legally able to work can result in the company being shut down in extreme cases. If you check into the I-9 form you will see what I was talking about. They really are not supposed to even let you start work without providing that proof. I have hired people whose start date was delayed until they got the ID to prove to HR that they were eligible and it was because of the laws. That you have gotten away without proving this is just luck on your part. Legally you don't have a leg to stand on.
10.20.2006 10:55pm
nemo:
aardvark

"If you think the person trying to vote is not the actual registered person, document your reasonable suspicion and apply for a warrant."

I'm trying to think of some reason against expecting people to produce ID at voting time, as opposed to voter registration time. So far I'm drawing a blank. What is your and Mr Palmers objection to producing ID?
10.20.2006 11:05pm
FantasiaWHT:
Our governor in Wisconsin vetoed an ID requirement even though it contained a provision where you can apply for a fee waiver (in Wisconsin you can get a state picture ID for $5)

aardvark, requiring a picture ID at registration would have virtually no effect on voter fraud. In Milwaukee county during the last presidential election there were somehow thousands more votes cast than registered voters in the entire county. Were those votes investigated? Sure. Were they thrown out? Nope. Was anyone prosecuted? A handful. Did the fraudulent voters achieve their objective? Yep.

In the same county, thousands of provisional ballots were cast. No registration? No problem- write down your address and vote. Your vote gets counted unless it's challenged. The county voters board (forget the exact name) verifies your address after the election and removes you from the registration list (only for the next election) if it was an invalid address. Well it turned out that over 80% of the provisional ballots were created using addresses that didn't exist, or that the person didn't live at.

The margin for Kerry in Wisconsin was only a few thousand votes...

The interest of the state in protecting the election from fraud, the interest in the legitimate voters in not having their votes cancelled out fraudulently outweighs the interest of the incredibly small number of people who somehow would not be able to get a free ID card.
10.21.2006 12:02am
Lev:
If the dead can vote, what do you need an id for?
10.21.2006 12:56am
real id issue:
The real ID issue, and the reason that it is being compared to a poll tax is that to get the ID, whether the ID itself is free or not, may require the individual to get a copy of their birth certificate to or citizenship papers in those states that now require PROOF, rather than a statement made under penalty of prosecution or fine, of citizenship at the time of voter registration. So far, as best as I know, the state vital records dept was not waiving charges for copies of one's birth certificate nor was the INS or whomever stores naturalization papers waiving the costs of getting those records.

The cost of supplying the underlying documentation to qualify for the state-issued ID, whether free or not, is a significant part of the claim of "poll tax."

And plenty of people don't have these records already at hand. The states with the strictest ID requirements want a picture ID. Sure, HAVA says a utility bill is fine (as is a list of other things), but some states, Arizona comes immediately to mind, are saying that their own state requirements trump HAVA and they can require a picture ID in all cases. That's what the problem is.

That, and the fact that little to no documentation exists on the problems, if any, of in-precinct voter fraud or voter impersonation. It might happen--certainly HAS happened, but there's nothing to suggest it is a widespread problem.

If one really wants to do away with voter fraud, then absentee ballots should go, as well as much/most mail-in voting. That's where the real problems lie, IMHO.
10.21.2006 1:25am
Erasmus (mail):
Does anyone know whether other circuits typically issue full blown opinions to resolve motions? My understanding is that it is common practice for circuit courts to resolve motions with one or two line orders. Is the Supreme Court saying that practice should stop with all motions, with all emergency motions, or just all emergency motions dealing with voters rights? I'm tottally baffled.

And why would the Ninth Circuit need to tell the Supreme Court that it did its job and considered the relevant factors? The Court doesn't seem to mind when circuit courts issue short opinions upholding a criminal conviction. Should that practice stop as well?
10.21.2006 1:48am
Matthew Gross (mail):
A poll tax has a well known definition, it's a fee required to vote. Mere expenses involved in the voting process are not poll taxes. If there's a real legal debate over the meaning of a poll tax, I hope SCOTUS clears it up for us.

Right now, all they've done is overturn an injunction.
10.21.2006 2:05am
Jim Carlile (mail):
The Arizona law also requires 'proof of citizenship' when registering to vote. It's much more involved than just a simple I.D. requirement, as discussed above. In order to prove citizenship, you have to provide a passport or birth certificate, which could involve some not-so-little cost. If this is not a "poll tax," it could certainly play one on TV.

Stevens' concurring opinion made me laugh out loud, for he is clearly setting up the proponents if and when the law comes to the Court. If the Arizona election turns out to be a debacle, and there's evidence of voter suppression or disenfranchisement (there will be,) then that will constitute "historical facts rather than speculation."

So proponents of voter I.D. and citizenship proof requirements should not be dancing in the street quite so soon.
10.21.2006 6:34am
Jim Carlile (mail):
A poll tax has a well known definition, it's a fee required to vote. Mere expenses involved in the voting process are not poll taxes. If there's a real legal debate over the meaning of a poll tax, I hope SCOTUS clears it up for us.

Ultimately so far, there hasn't been much of a debate. Courts all over the country have thrown out similar laws. Obviously the opinion today revolved around how the Ninth handled the case when it came in front of them.

In regards to the above cited question of poll taxes, I noticed, too, that in their wisdom, the ratifiers of the 24th amendment in 1964 made it clear that the right to vote for federal office "shall not be denied or abridged by the United States or any other State by reason of failure to pay any poll tax or other tax."

That's pretty broad and conclusive. It's not just a "poll tax" that's prohibited. Obviously, voting should be free and unencumbered by any monetary concerns-- at least that's my reading. If so, that makes the prospects pretty grim for Arizona's Proposition 200.
10.21.2006 6:58am
donaldk:
Childish arguments. The whole matter is a question of power; who whom as the good Lenin put it. Does anyone here think that Robert West would be spinning such gossamer if the law favored Democrats? If so, I will be glad to sell you the Brooklyn Bridge.
10.21.2006 7:46am
davod (mail):
DonaldK:

Politics shouldn't matter. Who can vote legally should.

Why would anyone suggest that proving who you are is a form of discrimination?
10.21.2006 9:45am
Swede (mail):
The armadillo's right.
If we have to actually reach into our pockets and produce an ID in order to vote, then we already live under the jackbooted regime of the Nazi State.

Idiot.
10.21.2006 10:01am
Truth Seeker:
People should need to prove they are citizens to register and to prove their identity to vote. All this BS about it being a "tax" or too burdensome, is just Democratic cover to allow voter fraud because that is the only way they can win elections these days. Unfortunatly the leftists in the judiciary hav ebeen able to help them so far.
10.21.2006 11:10am
Justin (mail):
"Childish arguments. The whole matter is a question of power; who whom as the good Lenin put it. Does anyone here think that Robert West would be spinning such gossamer if the law favored Democrats? If so, I will be glad to sell you the Brooklyn Bridge."

Sure, donald. Does anyone think the Republicans care about fraud? Especcially since most fraud happens due to absentee balloting? Oh wait, you mean Republicans benefit from that fraud? Then shhhhhhhhh.

"Unfortunatly the leftists in the judiciary hav ebeen able to help them so far."

You mean the leftists who were mostly appointed by George Bush, George W. Bush, and Ronald Reagan?
10.21.2006 12:08pm
JunkYardLawDog (mail):
This isn't a legal argument I'm about to state but just a personal political view:

If a person is so broke they can't afford or are mentally incapable of arranging to have an extra $5 or $12 once every 5 years to get a valid photo ID to vote, then I say voting or not voting is NOT their most pressing problem. Further, I say if they can't afford this completely trivial expense then they also can't afford to buy food to eat, gas or a bus ticket to register to vote or actually go vote, then they are too incompetent to vote.

The average person, child, or family that is officially living in poverty according to government guidelines lives in a home or apartment of their own, with one or more color TV's, a stereo, a telephone, usually at least one cell phone, etc. If they have the money for all these things when officially in "poverty", then how could they possibly NOT have $5 to $20 every 5 years for a photo ID in order to vote? The answer can only be that voting is NOT important enough to them to organize their lives so that they can accumulate that extra $1 to $4 per year. I say if voting is that UNIMPORTANT to them then their NOT voting is their own fault and not the fault of any photo ID requirement.

Finally, all the liberal groups so interested in continuing the opportunities for voter fraud, non-citizen voting, multiple votes by the same person under different names, etc. could easily go out and buy the photo ID for these mentally incompetent unmotivated to vote individuals so that they will be able to board the bus these groups provide, get their free cigarettes and beer that these groups provide for their "voters", and cross state lines to vote in some tight election just like they do now.

Originally only land owners could vote because it was believed that land owners would be educated enough and invested in the good of their communities enough to be qualified to pick competent political leaders. While I don't advocate a return to land owners only voting, but perhaps a decent modern day minimum standard for voting would be if you are on welfare or food stamps and living off of the money of others then you shouldn't have the right to vote. Why? 1. It would be an incentive for those who are living off of others money to start living on their own money. 2. It would recognize that those living off of others money may not be sufficiently competent enough to vote. 3. It would recognize that those living off of the money of others may not be sufficiently invested in the community and the country to consider seriously their vote and the good of their community and country. 4. Those living off of the money of others should not have a vote/say in who decides how much, if any, of the money of others they should get. Its too much of a conflict of interest.

If we did this then these people who claim $5 to $20 every 5 years for an ID is too much of a burden wouldn't have to worry about this burden any longer, and the bleeding heart lefties so worried about this on and off the courts would have a whole lot more important stuff to worry about than this issue.

Says the "Dog"
10.21.2006 12:18pm
Ari Tai (mail) (www):
Seems a little civil disobedience is in order (not an original idea, I wish I could credit the blogger who first suggested it) and this might change people's minds about the appropriateness of requiring proof-of-citizenship-in-good standing (i.e. not a felon). Simply go to the polls early and use the name of a well-known leftist in the area, especially in states where poll workers are forbidden to ask for proof. If they call you on your use of this person's name, state the nature of your protest and that you insist on voting as allowed by the rules, and do not give them your name because they can not ask that either. And since cameras and police are not allowed in the vicinity of the polling area... Meaning that if your vote is at risk of counting for less because of the left's insistence, you will insure that theirs counts for less as well.

Note that it's the welfare state that places us in this position, creates this moral hazard. If we didn't use state coercive power for redistribution we wouldn't care as much about our borders, or if someone was attempting to use the political process to reward the less than industrious or truly deserving. If you're in the U.S. and contributing, please do vote. Else, do whatever you do or don't elsewhere please. I do warn my politically engaged friends that with border control comes some form of national ID, especially if we asks businesses (curious it's just them and not individuals, schools, hospitals, even local police) to enforce laws intended to remove those who skirt some bureaucratic process we individually would not tolerate (we have a hard time with something as simple as "voter" IDs) to this country to make a better life for themselves (as well as us, who don't appreciate the economic value of every human willing to stand on their own feet and earn their living).
10.21.2006 12:49pm
Greowulf (mail) (www):
Dog: The problem with that is that it doesn't recognize those who are legitimately disabled and those who are retired under Social Security. I would rather have a substantive "knowledge test" and require that those that vote actually know the issues. I don't care if your poor, in poverty, or whatever, but those that come vote a party line without bothering to investigate the candidates or the propositions are ruining our democracy and making the elections pure chance

Y'know, there's actually an idiot here in AZ that wants to have a lottery to award $1M to to a random voter to improve turnout. I don't want to improve turnout. I want to keep non-citizens and ignorant voters OUT of the polls. That makes the votes of those who bother to research the issues and the candidates count more.

Wulf
10.21.2006 1:00pm
dick thompson (mail):
Justin,

As to absentee ballots being favored by republicans, just check the last gubernatorial election in Washing where even the clerk taxed with producing the numbers for the absentee ballots told her boss that she could not justify the numbers on the sheet, and they were predominantly democratic. Her boss went ahead and certified the numbers.

Then you have all the military ballots that were sent out too late for the military to get them back in time to count. That also figured in the Florida 2000 election as well. That would really help the republicans since we all know the military votes predominantly democratic (LOL).

Actually the absentee ballots are a blessing to the democrats since that allows them to fudge the election with all the dead voters. That figured in that election since some of the ballots were cast by the relatives of the dead voters for the democratic candidate.

What bothers me more than absentee ballots is the new initiative to go for mail-in ballots so you can't even show up to vote if you want to. That is a gift to fraud IMNSHO.
10.21.2006 2:01pm
Truth Seeker:
Originally only land owners could vote because it was believed that land owners would be educated enough and invested in the good of their communities enough to be qualified to pick competent political leaders.

Land owners should at least be able to vote in local elections where they don't live. If a person owns a second home in another state they can't vote there, even for local candidates who make decisions regarding their second home.

Does anyone know of a case challenging not being able to vote where you own property but don't live? My office is in the next town and I'd love to vote there as well as where I live.
10.21.2006 2:37pm
Dave Hardy (mail) (www):
Article in the local newspaper (Tucson AZ) stated what ID was acceptable, and from the breadth of it I have trouble seeing the constitutional issue. Or even how the law will discourage noncitizen voting.

A driver's license or state ID is enough.

Or a car registration, etc. Or a bank account in state.

Or two nonpicture IDs that show address.

Or some utility bills, from anytime in recent months, with your name and address.
10.21.2006 3:27pm
JunkYardLawDog (mail):
Greowolf, you are correct that a carve out for the legitimately disabled who are because of their disability unable to support themselves. I thought my omission of social security recipients made it clear that I didn't include social security retirement benefit recipients in the category of living off of others money. Supplemental Security Income recipients or at least some subset of them, might be a different story. Those receiving retirement benefits are at least in the theory of lies about social security are merely receiving the benefit for which they previously paid during their working lives.

My heart doesn't disagree with your knowledge test ideas, but because of the nature of long past efforts to keep blacks from voting using such tests, I don't think we are quite far enough away from that to try to implement what is otherwise a fair idea. An objective multiple choice test that demonstrates a minimum knowledge of the names of the President, Vice-President, Speaker of the House, Secretary of State, and Secretary of Defense, Governor, and Mayor would be an extremely rudimentary test that all who vote should be able to pass. Sadly, Jay Leno and Sean Hannity have shown on more than one occasion this is a test that many students in college can't pass.

The test of course should be in English only, and ballots should be required to be in English only (at least for federal elections).

The motor-voter law should be repealed as well.

I like the way Texas opens a few centralized polling places on statewide elections for about a week before the actual election day, and one can go in at their convenience, present ID or whatever is required have their registration and eligibility to vote verified, receive the same ballot as given out on election day, cast votes in the same manner as on election day, etc. Changing election day to a 24 hour period on a Saturday or from Noon on Saturday to Noon on Sunday or even all Weekend would be much better for allowing WORKING people to vote.

Says the "Dog"
10.21.2006 3:32pm
JunkYardLawDog (mail):
Oh, I forgot to add that all elections during Ramadan should be automatically re-scheduled for Easter Sunday. (wink)

Says the "Dog"
10.21.2006 3:35pm
JunkYardLawDog (mail):

Or some utility bills, from anytime in recent months, with your name and address.



Utility Bills are great because the same utility bill can be used for twenty five different Juan Lopez's or John Smith's to vote all over town.

Just a thought.

Says the "Dog"
10.21.2006 3:37pm
Jay Myers:
There's no question that requiring ID to vote doesn't violate the 24th amendment's prescription against using non-payment of taxes to keep people from voting because even though this regulation could require the expendature of money, this isn't a tax.

The standard for determining if it violates the Equal Protection Clause of the 14th amendment would have to be disparate impact since I think we all agree that there is no intent to discriminate by the States. So the question is, does requiring the showing of ID to vote if an employer's policy have disparate racial consequences, and if so, can the government give a reasonable justification that such a policy is narrowly tailored to serve a compelling government interest?

A fly in the ointment is that, unless things have changed since my last visit to the BMV, drivers' licences and state IDs don't actually show whether you are a citizen or not (which is the primary requirement to vote). Mine lists some of the documentation I submitted in order to get my license but what poll worker is going to be capable of noticing the proof of ID section of several hundred licenses? I know I'd be zoning out pretty quickly and just checking pictures. There's a reason they photograph people under 21 against a different colored background instead of simply relying on clerks to notice the date of birth. So you could make an argument that drivers' licenses and state IDs aren't adequate to serve the stated purpose.

On the other hand, I would agree with the second Justice Harlan's dissent in Reynolds v. Sims (1964) that the 14th amendment's due process clause does not apply to voting rights. If it did, then we would have to assume that there was no purpose to passing the 15th and 19th amendments and legislative acts should always be assumed to have had some point or purpose. We would also have to conclude that the passage of the 14th amendment made it unconstitutional to elect two Senators from every State regardless of population.
10.21.2006 4:47pm
David M. Nieporent (www):
Especcially since most fraud happens due to absentee balloting?
Really, Justin? How would you know that? If nobody tracks (a) whether someone is a citizen when they register, (b) who they are when they register, and (c) who they are when they vote, then how can you possibly know whether fraud is occurring? And if you don't know whether fraud is occurring, how do you know how often it is occurring?
Oh wait, you mean Republicans benefit from that fraud?
Why? Do Democrats not have access to mailboxes?
10.21.2006 5:26pm
nemo:
People continue to make the claim that ANY form of mandatory ID constitutes a poll tax, as in this;

"The cost of supplying the underlying documentation to qualify for the state-issued ID, whether free or not, is a significant part of the claim of "poll tax."

As I already pointed out, most states require some form of ID in order to register to vote. Those forms of ID require money. Yet none of them have ever been struck down as constituting a poll tax. Why?

The whole "poll tax" argument is a diversion. The courts oppose any laws enforcing the constitutional requirement of citizenship for voting. Provided the voting laws don't attempt to do this the courts will sign off on them, regardless of the cost of the ID required. At least, that has been their practice in the past.
10.21.2006 6:32pm
riptide:
nemo: What states require ID in order to register to vote?
I've only registered to vote in NY and MA, but neither state required any ID at all, at any time. So what states currently require ID to register?
10.21.2006 8:40pm
real id issue:


Electionline has a listing of the state voter ID rules FWIW.
They vary as to what information is necessary, though they have been getting more, rather than less, restrictive.

Citizenship doesn't have to be a requirement, at least in state races, unless the state says so. Some of the western territories used to let non-citizens vote; that was a lure to attract enough people to qualify for statehood.
10.21.2006 8:42pm
Ken Arromdee:
While I don't advocate a return to land owners only voting, but perhaps a decent modern day minimum standard for voting would be if you are on welfare or food stamps and living off of the money of others then you shouldn't have the right to vote.

Oddly (or maybe not so) I've had similar arguments about Heinlein's Starship Troopers.

The counter-argument is the same: I don't want to vote so that I can raid your pockets for tax money that I can spend myself. (At least not as a main goal.) I want to vote because the government has power to do things to me whether I want it to or not, and voting is the only method which society has provided for me to change that. Can welfare recipients/non-veterans still be arrested and jailed? Do they still have to pay government fees to do things for which the government mandates fees? Are they still subject to government-imposed restrictions ranging from zoning laws to abortion laws to laws that affect what kind of DVD player they can buy? Yes, of course they are. So they should be allowed to vote.
10.21.2006 9:55pm
nemo:
riptide

"NY does require ID to register to vote."

NY does indeed require ID to register to vote. Go to this link to see what they are. Drivers license, SSN, utility bills, etc are all acceptable, but something is required.

Maybe what you mean to say is that it does not require any ID which enforces the citizenship requirement for voting. In that case I agree, but I still wonder; why not?
10.21.2006 11:16pm
Russ (mail):
aardvark,

You are the type of lawyer that gives the good 2% a bad name...
10.21.2006 11:41pm
JunkYardLawDog (mail):
Ken,

If they want a voting in say in all those things that affect their lives, then they could get up in the morning, go to work, and support themselves. All those laws and items affecting their lives which you cite also affect the lives of legal non-citizen residents and they don't get to vote. They also affect the lives of illegal aliens and they don't get to vote. To me your argument is just not persuasive, but your mileage may vary.

Says the "Dog"
10.22.2006 3:43am
arbitraryaardvark (mail) (www):
Nemo wrote:
As I already pointed out, most states require some form of ID in order to register to vote. Those forms of ID require money. Yet none of them have ever been struck down as constituting a poll tax. Why?
Because no one's brought that case yet. "None of them have ever been upheld as not constituting a poll tax", to turn your argument around. If there's some case I'm not aware of, feel free to post it. There just havent been a lot of poll tax cases. Harper v Virginia Board, http://moritzlaw.osu.edu/electionlaw/litigation/index.php.
Lake v. Purdue, Superior Court of Fulton County, Georgia; Common Cause of Georgia v. Billups, Northern District of Georgia, upheld by 11th Circuit. Jackson County v Missouri, Missouri Supreme Court, are cases which cited the poll tax aspects as a basis for enjoing these statutes.
Nemo: New York currently requires ID to register, I'll take your word for that. But many New Yorkers registered long ago,and are now duly registered with a right to vote. The New York constitution isn't as explicit about voting rights as the Georgia, Missouri, or Indiana constitution, but it's been interpreted to protect voting. If you can show that some registered New Yorkers aren't really citizens, by all means go prosecute or expose those people. But a registered voter has no duty to reprove their citizenship each time they go to vote.
Dave: you are right that the Arizona scheme is less onerous than the GA, IN, and MO schems. Sometimes liberty is lost a drop at a time rather than in big gulps. There is a national and international movement afoot - google Thor Hearne - and they are currently testing to see what they can get away with. I could speculate that it's part of a larger trend to dumb down people's reasonable expectations of privacy.
10.22.2006 7:45pm
Ken Arromdee:
If they want a voting in say in all those things that affect their lives, then they could get up in the morning, go to work, and support themselves.

By that reasoning the government could make a law saying "if you don't work, you must join the Republicans". After all, "if you want to be a Democrat, then you could get up in the morning, go to work, and support yourself".

Of course, the decision that a welfare recipient may not be a Democrat/may not vote is a purely arbitrary one made by the government to "connect" two things that otherwise aren't connected.

All those laws and items affecting their lives which you cite also affect the lives of legal non-citizen residents and they don't get to vote.

That's because we don't grant non-citizens (or illegal aliens) the freedom that we grant citizens. We could, for instance, refuse to grant a Nazi legal residence, even though we would not be allowed to punish a citizen just for being a Nazi.
10.22.2006 8:11pm
JoshL (mail):

While I don't advocate a return to land owners only voting, but perhaps a decent modern day minimum standard for voting would be if you are on welfare or food stamps and living off of the money of others then you shouldn't have the right to vote.


In NYC, at least, rookie police officers that don't supplement their pay with an additional job can actually qualify for food stamps (starting salary is about $25k a year, which jumps to somewhere in the $30k range after the first six months). Are you suggesting that a rookie cop who has been in the force for 3 months shouldn't be able to vote?
10.22.2006 11:08pm
AZ Voter:
1/11th of all Arizona residents are illegal aliens, by DHS estimate.

What percentage of the population needs to be illegal before it's ok to ask for voter id?

10%?
20%?
...
10.23.2006 10:44am
arbitraryaardvark (mail) (www):
What percentage of the population needs to be illegal before it's ok to ask for voter id?

I don't know. It's a good question.
The stopping of the 1,161 vehicles resulted in 55 drug-related arrests, meaning that 5 percent of the total number of stops resulted in successful drug "hits," and 49 arrests for conduct unrelated to drugs, such as driving with an expired driver's license, for an overall hit rate of 9 percent. The City is continuing the program.

But the last time this issue came up, a 9% hit rate was not enough to justify warrantless searches of Joell Palmer in Edmond v Indianapolis. Now Palmer wants to know if, as a person who doesn't consent to a search, does he still have a right to vote? They didn't let him vote at the primary because he wouldn't show ID without a warrant or some degree of probable cause.


I don't think you are claiming all 9% of illegal Arizonans are trying to vote.
10.24.2006 11:30pm