How Will Justice Kennedy Vote in Crawford?:
In the first filed report on this morning's oral argument in Crawford v. Marian County Election Board, aka the voter ID case, Lyle Denniston has this to say about Justice Kennedy's take on the case:
Justice Anthony M. Kennedy . . . displayed some skepticism about the challenge to Indiana’s law, somewhat impatiently suggesting at one point that the challengers would oppose any kind of voter ID requirement other than a simple signature match at the polling place. Kennedy seemed ultimately to be looking for ways to assure voters who demonstrably would be significantly burdened by the law they they could challenge it, perhaps even before election day came around.
  I look forward to reading the transcript to know more about how Justice Kennedy is approaching this case. In the meantime, I wonder if there are some clues in a Fourth/Fifth Amendment decision Justice Kennedy wrote a few years ago, Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004). Granted, the Hiibel case has has absolutely nothing to do with voting rights. But it may contain some clues on the broader question of how Justice Kennedy construes the state and citizen interests in identification requirements.

  Here are the facts of the Hiibel case, as stated in Justice Kennedy's opinion:
    The sheriff's department in Humboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop.
  The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had "any identification on [him]," which we understand as a request to produce a driver's license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer responded that he was conducting an investigation and needed to see some identification. The unidentified man became agitated and insisted he had done nothing wrong. The officer explained that he wanted to find out who the man was and what he was doing there. After continued refusals to comply with the officer’s request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: the officer asked for identification 11 times and was refused each time. After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest.
  The question in Hiibel was whether the Fourth and Fifth Amendment permitted Hiibel to be arrested based on these facts. Justice Kennedy's opinion for the Court concluded that the answer was "yes." Along the way, Justice Kennedy reasoned that the state interest in identifying Hiibel was strong:
Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.
In another part of the opinion, Justice Kennedy suggested that Hiibel's interest in keeping his identity away from the state was relatively weak:
  As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer's business. Even today, petitioner does not explain how the disclosure of his name could have been used against him in a criminal case. While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.
  The narrow scope of the disclosure requirement is also important. One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. In every criminal case, it is known and must be known who has been arrested and who is being tried.
(citations omitted)

  Just to be clear, there are lots and lots of reasons why Hiibel is different from Crawford. Just to pick one, the Hiibel court construed the statute as requiring a suspect to state his name, not to provide a government ID. Perhaps that's a critical difference, and Justice Kennedy will see a government ID requirement as raising a very different set of concerns. At the same time, I think Justice Kennedy's Hiibel opinion suggests that Kennedy sees strong government interests in the state knowing who it's dealing with, at least in the criminal law context. I wonder if that will carry over to a vote to uphold the Indiana voter ID law in Crawford.

  UPDATE: According to the AP, one of Justice Kennedy's questions for Paul Smith at the oral argument was, "You want us to invalidate the statute because of minimal inconvenience?" More soon...