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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...
sovereignjohn (mail) (www):
It would seem that one could take the 5th since one is not required to give information that could be used against oneself. just wondering allowed
1.9.2008 1:13pm
AntonK (mail):
Democratic former congressman Martin Frost makes the case against voter id here, and cites shocking figures therein:
According to the brief submitted to the Supreme Court by the individuals challenging the constitutionality of this Indiana law, the statute clearly is aimed straight at these groups. The brief notes that "About 12% of voting-age Americans lack a driver's license. And about 11% of voting-age United States citizens--more than 21 million individuals--lack any form of current government-issued photo ID. That 11% figure grows to 15% for voting-age citizens earning less than $35,000 per year, 18% for citizens at least 65 years old, and 25% for African-American voting-age citizens." This is what is called in the law a "disparate effect." . . .
The figures Frost cites for the proportion of adults without photo ID are shocking if true. Voting and driving aside, the lack of a photo ID makes many functions of ordinary life more difficult or expensive to conduct--or at least to conduct legitimately: getting a job, conducting routine financial transactions, traveling between cities, negotiating encounters with policemen. People without IDs are marginalized in important ways, and if their numbers are as great as Frost claims, this is a serious social problem.
1.9.2008 1:24pm
PLR:
Sheesh, I would say!

In Hiibel, the defendant refused to identify himself. All voters are required to identify themselves as a condition to voting! The issue is proof of identity, not disclosure of identity.
1.9.2008 1:41pm
PLR:
My previous post was in response to:
Just to be clear, there are lots and lots of reasons why Hiibel is different from Crawford.
1.9.2008 1:42pm
OrinKerr:
PLR,

I don't understand your comment. Are you agreeing with the post, or are you agreeing with me when I say, "Perhaps that's a critical difference"?
1.9.2008 1:44pm
Grange95 (mail):
The voter ID law "fixes" a non-existent problem. Nobody attempting voter fraud would go to the trouble of casting one extra vote by impersonating another voter (who may either not be registered or may have already voted). Voter fraud would be implemented on a mass basis, through rigging machines, tampering with ballots, etc. Interestingly, absentee ballots do not require gov't-issued voter ID, and given the substantial increase in usage of absentee ballots, this seems a greater area of concern for potential fraud.

Within a couple of decades, I suspect a majority of voting will be done online, opening up a whole mess of voter ID and security issues.
1.9.2008 1:47pm
BD:
"People without IDs are marginalized in important ways, and if their numbers are as great as Frost claims, this is a serious social problem."

To the contrary, it's only a social problem to the extent people are being systematically prevented from obtaining a driver's license or other official form of ID. Otherwise, it's just a matter of people opting to go through life without an ID, either because they're lazy, don't want to be inconvenienced, are in the country illegally, or are wanted by the police.
1.9.2008 1:50pm
Mike Gallo (mail):
I don't think the number of people "of voting age" who don't have Gov't. issued ID has anything to do with the number of those people who actually vote. Seeing as voting numbers are less than 50% of those elligible, why would anyone think that those without ID are being further "marginalized" here?

All I know is I've been furious over the number of fraudulent votes in the Milwaukee area in the last several major elections. Everything from college kids on the news bragging about voting several times to voters registering in several districts at vacant lots or addresses that don't exsist. Rarely, if ever, are they prosecuted. I remember a few felons being prosecuted for voting earlier this year, but that's it. If those are the yahoos who would be "marginalized" by such a law, so be it.

I would say that in a case like this, the people (gov't.) have a very large interest in making sure that every vote is from someone elligible to cast one. Especially in light of several very highly contested, very close races in the past 10 years.

"Vote Early, Vote Often" needs to be buried with the corpse of King Daley I.
1.9.2008 2:04pm
WHOI Jacket:
I say that "Motor Voter" laws discriminate against the non-car owning.
1.9.2008 2:05pm
Anonymost:
For a data point leaning the other way, consider Justice Kennedy's joining the majority opinion in McIntyre v. Ohio Elections Comm'n, which struck down an Ohio election law prohibiting anonymous pamphleting. Justice Scalia's dissent raised some of the same interests that Prof. Kerr notes in Hiibell -- for example, the desire to protect the govenrment's interest in ensuring a fair electoral process -- but that was not persuasive to Justice Kennedy at the time.

Past performance, of course, is no predictor, especially given the obvious factual differences between McIntyre and Crawford. But I thought Justice Kennedy's position in McIntyre was interesting enough to mention.
1.9.2008 2:05pm
BD:
"The voter ID law "fixes" a non-existent problem. Nobody attempting voter fraud would go to the trouble of casting one extra vote by impersonating another voter (who may either not be registered or may have already voted)."

You're wrong. I personally know a guy -- he's worked for a number of political campaigns doing low-level field work -- who told me he has on many occasions gone in and voted for people who were out of town. It DOES happen.

Are there more efficient ways to commit vote fraud? Perhaps. But voter impersonation represents a huge opportunity for fraud where, as in our times, actual turnout tends to be a fraction of the total number of registered voters.

Please note that there is no assurance that those engaged in voter impersonation are limiting themselves to "one extra vote." They can easily travel from one precinct to the next, voting for people who are out of town, deceased, or just too apathetic to vote on their own behalf. Who the registered voters are and whether they have already voted is not exactly a well-guarded secret.
1.9.2008 2:12pm
rarango (mail):
I think Grange has a good point: I have been voting absentee for 5 years and have only had to sign an affadavit to get on the vote by mail list. Once on the county auditor's list, the ballots come in by mail for every federal, state and local election for which I am eligible.


As an aside,to get medicare services, my medical clinic requires not one, but two pieces of ID (and a 20 dollar co-pay). Is medicare fraud a bigger problem than voter fraud? Are my rights being infringed? (IANAL caveat applies)
1.9.2008 2:12pm
OrinKerr:
Anonymost, excellent point. I'll stick to my guns, on the ground that Justice Kennedy often ends up treating First Amendment questions as very different. But you make a very good point.
1.9.2008 2:15pm
TyrantLimaBean:

Nobody attempting voter fraud would go to the trouble of casting one extra vote by impersonating another voter (who may either not be registered or may have already voted).


Funny, I've gone to vote before only to find someone had already voted as me. The ACORN debacles of the past election - or, as alluded to by Mike Gallo, the history of Chicago - show voter fraud is a real concern.
1.9.2008 2:15pm
JOe:
According to the brief submitted to the Supreme Court by the individuals challenging the constitutionality of this Indiana law, the statute clearly is aimed straight at these groups. The brief notes that "About 12% of voting-age Americans lack a driver's license. And about 11% of voting-age United States citizens--more than 21 million individuals--lack any form of current government-issued photo ID. That 11% figure grows to 15% for voting-age citizens earning less than $35,000 per year, 18% for citizens at least 65 years old, and 25% for African-American voting-age citizens." This is what is called in the law a "disparate effect." . . .

I suspect the majority fitting those demographics are pretty much uninvolved with any form of political process and as such are not affected in any way by an ID requirment-ie a non issue.
1.9.2008 2:19pm
Off A Cough (mail):
I am a Hoosier, residing in the suburbs outside of the Home of the World Champion Indianapolis Colts.

Recently deceased representative Julia Carson was well known for clearing out homeless shelters and alleys of drunks to be registered and then bussed to the polls. These stories, along with the legendary stories of King Daley and an emphasis on voter fraud since the 2000 POTUS election in Florida, drove our state to take action.

Combined with the provisionary ballot mechanism, the issuance of FREE state ID cards to those who (foolishly) have no other form of approved identification presents NO real "burden" as the ACLU and Indiana Democratic Party claim.

The only real issue as I see it is, as in Hiibel, should you be required to identify yourself to the government in the first place? Well, 50 states require registration of some sort, so saying "no" would be one heck of a can of worms.

An issue that I have not heard brought up is any sort of provision to the law that prevents law enforcement from setting up traps to arrest people in the act of voting, because they could potentially use voter rolls and that same positive ID to catch them. I'm not a lawyer myself, and if there is existing statute to prevent this, I'm not terribly clear on it. I would think some Southern state would have already employed this tactic were it not explicitly prohibited.

Personally, I think such law enforcement action SHOULD be prohibited. I for one could support the Patriot Act more fully if I were convinced that data being obtained were not being used to go after tax cheats, pot growers, jay walkers, or even traditional violent criminals who are not in that (albiet loose) definition of "terrorists".
1.9.2008 2:20pm
Grange95 (mail):
BD,

Between my original post and reading your response, I came across an article stating that Indianapolis had investigated voter fraud where small "teams" of people had voted in an election while impersonating registered voters who had died or moved. Although this still seems to me to be a very small issue, it clearly is more of a real concern than I had initially thought. And in a local or state election where a few dozen or so votes might swing the result, this type of fraud could certainly come into play. So ... I am now convinced that the potential for this type of voter fraud is sufficiently realistic such that the relatively minor inconvenience of showing ID is a reasonable response.
1.9.2008 2:23pm
Jacob Berlove:
It is most ironic that the solution to this politically loaded case that looks most faithful to the constitution is also a political one. I am unable to find a provision anywhere in the constitution that prohibits states from denying the right to vote on account of inability to prove identitfication according to a state's chosen standard. The fifteenth amendment bans denying the vote on account of race, the nineteenth on account of sex, and the twenty-sixth on account of age. But a ban on denying the vote on account of overly-rigorous ID laws?! My goodness...
SCOTUS could resolve the case by some strongly worded dicta that would warn of the invocation of section two of the fourteenth amendment should Indiana not provide another way to ensure the franchise to all. Indiana actually wouldn't lose house seats for women and 18-21 year olds denied the vote, but the threat of even losing one house seat should be enough make sure that Indiana passes laws that would satisfy strict scrutiny with a heavy emphasis on the narrowly tailored and least restrictive components.(Cross posted at SCOTUSblog)
1.9.2008 2:27pm
Ralph Phelan (mail):
And in a local or state election where a few dozen or so votes might swing the result

Or a presidential primary election in a small state like New Hampshire....
1.9.2008 2:44pm
Maureen001 (mail):

The figures Frost cites for the proportion of adults without photo ID are shocking if true. Voting and driving aside, the lack of a photo ID makes many functions of ordinary life more difficult or expensive to conduct--or at least to conduct legitimately: getting a job, conducting routine financial transactions, traveling between cities, negotiating encounters with policemen. People without IDs are marginalized in important ways, and if their numbers are as great as Frost claims, this is a serious social problem.


Funny. I had a different response. How far afield we have come, our society, from that of our Founding Dads. And what a horrifying portrayal of the complications of contemporal life! Rules and rules and rules/laws and laws and laws/stress and strain and strife...

It's been a while since I've heard the stats on the accellerating rate that we lose our freedom, compared with our parents and our grandparents, but it's alarming.
1.9.2008 2:47pm
Matt Pickut (mail):
Did I actually just see that... Someone in an internet discussion actually changed their mind, and admitted it, without a flamewar... I'm stunned...

Seriously, Grange95 you're now my new hero. Someone should really alert the press, or the Smithsonian, or whoever is in charge recording seriously historic things. Nobody even brought up the Nazis...
1.9.2008 2:54pm
Off A Cough (mail):
Regarding the "inconvenience" claim, I would donate a day's salary to charity just to hear Scalia blurt out "boo friggity hoo".

You just KNOW he wants to do it.
1.9.2008 3:01pm
pilight (mail) (www):
I worked in a bank for a while, so I've seen plenty of people without "approved" identification. They seem to get by just fine

If I didn't drive, I probably wouldn't bother with one either. There are very, very few things that require an ID these days. Everything can be done online, over the phone, or by mail if showing ID in person is too much of a hassle. I can't even remember the last time I showed my license to anyone other than a cop at a roadblock (I don't drink).

In any event, I don't know why anyone thinks this law will stop fraud. Any teenager that wants one can get a fake ID now. If someone really wants to do fraud at the polling booth, making up some fake IDs will prove to be no impediment whatsoever.
1.9.2008 3:29pm
calmom:
I turn the argument around. By not protecting against voter fraud, the state is denying the right to vote of legitimate voters. Illegal votes cancelling out legal votes is violates voting rights. Reasonable efforts to stop that, like I. D., are not unconstitutional. Letting anyone in without I. D., without verification of citizenship or residency, should be considered a constitutional violation of voting rights by the state.
1.9.2008 3:35pm
statfan (mail) (www):
Recently deceased representative Julia Carson was well known for clearing out homeless shelters and alleys of drunks to be registered and then bussed to the polls.

... you mean voters? Why shouldn't homeless people and drunks have the right to vote?
1.9.2008 3:57pm
PLR:
PLR, I don't understand your comment. Are you agreeing with the post, or are you agreeing with me when I say, "Perhaps that's a critical difference"?

I'm agreeing with your latter statement, and believe the "Perhaps" is superfluous.
1.9.2008 4:06pm
Bpbatista (mail):
If the inconvenience of getting an ID to vote is an unconstitutional burden, then why isn't the inconvenience of having to register to vote also unconstitutional, or the inconvenience of having to travel to a voting poll on a certain day between certain times?
1.9.2008 4:12pm
Happyshooter:
Let's be open about this. The concern on the left is that poor black and hispanic voters won't have ID cards.

This is not a valid concern in Michigan, because the welfare all in one card (the "Bridge Card") combines all their cash and food benefits in one card, that can be used as an ATM card and as a food store point of sale card. The card contains their photo and name, and is is government issued ID.

No person in that class would be without the card at any time, as it is the source of their ability to eat and of spending money.
1.9.2008 4:36pm
Happyshooter:
... you mean voters? Why shouldn't homeless people and drunks have the right to vote?

Because at cattle calls the democrat party serial votes. They round up the bums. Trusted party member signs in, gets ballot, puts it in pocket, walks out.

Party fills out ballot, hands to cattle call #1, who goes in, get new ballot, puts in pocket, puts filled out ballot into reader machine.

Number one comes out, gives blank ballot to party, gets $20 bill. Party fills out ballot, gives to number two.

While waiting the party gives cigs and booze to the cattle call.
1.9.2008 4:40pm
GV:
Shouldn't this be part of the silly John Roberts umpire watch? Does anyone doubt that Roberts (totally netural!!) will vote for the republican party in support of protecting a state's right to control voting fraud?
1.9.2008 4:52pm
OrinKerr:
GV,

It's hard to count Chief Justice Roberts' vote when he hasn't yet voted. But I agree -- in all likelihood this case will count.

Yours in silliness,
Orin
1.9.2008 5:03pm
Oren:
I turn the argument around. By not protecting against voter fraud, the state is denying the right to vote of legitimate voters. Illegal votes cancelling out legal votes is violates voting rights. Reasonable efforts to stop that, like I. D., are not unconstitutional. Letting anyone in without I. D., without verification of citizenship or residency, should be considered a constitutional violation of voting rights by the state.
I suppose the idea would be to weigh any potential system by the total of false positives (people allowed to vote when they shouldn't be) and false negatives (people not allowed to vote when they should be). I will support voter fraud initiatives when they seem reasonably targeted towards reducing both kinds of error instead of making the former less likely at the cost of raising the latter.

Also, with all due respect to Posner when he says
It is exceedingly difficult to maneuver in today’s America without a photo ID. Try flying, or even entering a tall building such as the courthouse in which we sit. cite
but the majority of Americans do not live the way Posner imagines them to.
1.9.2008 5:31pm
SG:

I suppose the idea would be to weigh any potential system by the total of false positives (people allowed to vote when they shouldn't be) and false negatives (people not allowed to vote when they should be). I will support voter fraud initiatives when they seem reasonably targeted towards reducing both kinds of error instead of making the former less likely at the cost of raising the latter.


Well, minimizing the total number of errors seems like a pretty reasonable position, but apparently you disagree.
Do you support the inverse as well? That is, would you not support any initiative that reduces false negatives at the cost of increased false positives?
1.9.2008 5:53pm
Steve2:
Regarding the false positives/false negatives issue that Oren and SG raise... Calmom, you didn't come close to convincing me that false positives, while undesirable and rendering illegitimate the outcome of an election, actually violate anyone's right to vote.

Which is why to answer you question, SG, no, I don't support the inverse, since I see the false negative as a clear violation of someone's right to vote in addition to causing a fradulent election result, whereas the false positive only causes a fraudulent election result without the violation of an individual's right to vote. So it doesn't strike me as severe an error... although I do feel like I'm comparing apples and applesauce.
1.9.2008 6:48pm
Bruce Hayden (mail) (www):
Let me add to my previous post about Faye Buis-Ewing, one of the people apparently prevented from voting under the Indiana law. Apparently, the presented her Florida driver's license, and based on that, was not allowed to vote. The problem for Mrs. Buis-Ewing is that it is not clear that she is eligible to vote in Indiana. She is registered to vote in both Florida and Indiana, and owns property in both states. She declared that she was a resident of Florida in order to get her driver's license, to register to vote there, and to get a homestead exemption for her house there. And, she recently lost her homestead exemption in Indiana apparently based on a determination that she didn't live there.

My gut feeling about what happened is that she is really a Florida resident now, but has voted in Indiana for the last 50 years, and so that is where she expected to vote. There is no evidence that she ever voted in Florida.

Still, I would suggest that this is somewhat embarrassing to the petitioners here.
1.9.2008 6:54pm
Martin Grant (mail):
>The voter ID law "fixes" a non-existent problem.
That may be right, and a reason why voter ID laws are not a good idea. But it's not very relevant to the constitutionality.

Even if it's not a problem now, on the face of it the law seems harmless and a good idea against future problems. However ...

>You want us to invalidate the statute because of minimal inconvenience?"
That may be the case now, but if this is upheld it won't be for long. How long is it before legislatures start playing with the requirements for obtaining the ID? Raise the cost from $50 every 10 years to $300 every other year? Does that give the my party's candidate the 0.5% boost he needs in a close election? How about making these things take 1 month to arrive in the mail. No last minutes registrations to throw a wrench in my polls. What about making the ID application forms English only and hard enough to fill out that it becomes a "Literacy test" to get an ID and thus vote? (e.g. Sorry ma'am I can't accept this application, you mispelled a word in the affirmation section of the form.) Maybe there'll be nothing so blatant. But I believe (and I can't offer definitive proof) that this will lead to more disenfranchisement than voter fraud it'll supress.
1.9.2008 7:11pm
Martin Grant (mail):
I think voter ID laws would be a lot more palatable and possibly constitutional if they were free and easy to obtain in a day. If the state doesn't want to bear the cost of this many free IDs then don't require them. If they do want voter IDs to prevent fraud, then free IDs should be the cost.
1.9.2008 7:14pm
KeithK (mail):
False positives and false negatives have the same effect on the election - skewing the results by one vote. But in practice, the costs of false negatives have been greatly reduced by the provisional ballot mechanism. The cost is not eliminated because the voter must jump through additional hoops to have his vote counted. But in the end a valid voter will have his vote counted. There is no comparable mechanism reducing the cost/impact of false positives.

In judging whether a change to the voting system is fair one shouldn't simply count up the number (probabilities) of false positives and negatives and treat them equally. Because the costs are not the same they need to weighted appropriately. In my mind false negatives should have a lesser weight because of the provisional ballot mechanism.
1.9.2008 7:24pm
David M. Nieporent (www):
That may be the case now, but if this is upheld it won't be for long. How long is it before legislatures start playing with the requirements for obtaining the ID? Raise the cost from $50 every 10 years to $300 every other year?
Uh, since they accept driver's licenses, pretty much forever. Raising the cost of driver's licenses to $300 every other year would pretty much guarantee that every politician in the state would lose his job.
1.9.2008 7:39pm
Bruce Hayden (mail) (www):
As to raising the cost, most of the states requiring a government ID will provide one for free either if indigent or possibly if someone doesn't have a driver's license. The obvious justification for this is that cost not be an issue, and thus not hamper the ability to vote.

It appears that Indiana at least provides free IDs for the indigent. This was mentioned somewhere, either in the Appeals Ct. Opinion, or somewhere else I read today.
1.9.2008 8:16pm
pilight (mail) (www):
If an ID is required to vote and not offered for free, wouldn't that constitute a poll tax? The state would be saying "You must pay the government this fee in order to vote". I don't see how that can be construed as anything other than a poll tax.
1.9.2008 8:44pm
A Law Unto Himself:
Pilight:

If you read the above posts, Indiana DOES offer a free state ID (same form as a driver's license, but without driving privileges).

To those who say there is no problem, I recall a recent election (2002?) where precincts in Philadelphia had more votes cast than they had registered voters. I wasn't a math major, but I'm pretty sure this isn't supposed to happen!
1.9.2008 10:02pm
Bowman:
This isn't in Indiana but points out the potential problems when positive ID isn't required.

http://opinionjournal.com/diary/?id=110011102

A grand jury report prepared by then-Brooklyn District Attorney Elizabeth Holtzman in the 1980s revealed how difficult it is to catch perpetrators. It detailed a massive, 14-year conspiracy in which crews of individuals were recruited to go to polling places and vote in the names of fraudulently registered voters, dead voters, and voters who had moved. “The ease and boldness with which these fraudulent schemes were carried out shows the vulnerability of our entire electoral process to unscrupulous and fraudulent misrepresentation,” the report concluded. No indictments were issued thanks to the statute of limitations, and because of grants of immunity in return for testimony.
1.9.2008 11:14pm
Off A Cough (mail):
I must disagree with anyone who works under the assumption that the SCOTUS should throw out the Voter ID law because it addresses a non-existent problem.

First, due to the lack of authentication and supporting documentation, there is no audit trail to correctly determine if this is a problem or not. Just because your house hasn't been broken into (to your knowledge) does not mean you can start leaving the door unlocked. Especially if you can't properly account for what valuables (legitimate voters) that you're supposed to have in the first place.

Fraud may indeed be going on this very day, and we don't know about it. A lack of evidence that it exists does not mean it is somehow not prudent to enable common-sense security controls (such as authentication) to prevent it. To otherwise not put in place such controls in a day and age where identity theft is rampant and large scale is simply ignorant - or maybe there are other more nefarious motives.

Either way, I don't buy the crocodile tears.

Secondly, it doesn't matter at all. The SCOTUS has no say in the need for the law, the only thing that they can look at is it's Constitutionallity. Equal protection and the various amendments regarding age, gender, and race are about all that they can (or at least should) address.
1.9.2008 11:34pm
Grange95 (mail):
Matt P.:


Did I actually just see that... Someone in an internet discussion actually changed their mind, and admitted it, without a flamewar... I'm stunned...

Seriously, Grange95 you're now my new hero. Someone should really alert the press, or the Smithsonian, or whoever is in charge recording seriously historic things. Nobody even brought up the Nazis...


Actually, I only changed my mind after being waterboarded by neo-Nazis chanting, "Rove, Rove, Rove!!" ;-)

Well, the intellectual embarrasment of discovering I had blurted out an opinion without researching the "facts" I thought I knew may have played a small part in my second post ... but it was mostly the Nazis.
1.9.2008 11:44pm
arbitraryaardvark (mail) (www):
The transcript is here.
I'm about halfway through it, and find it more encouraging than the early reports from courtwatchers were saying. It's too soon to say how this will come down.
Re Hiibel: One thing that bothered me about that case is that the court treated it as if the cop had just asked Hiibel to identify himself, e.g. "Who are you?" Instead, the cop demanded to see the guy's state-issued pedestrian license.
But a key distinction between Crawford and Hiibel is that in Hiibel there's reasonable suspicion adequate to justify a Terry stop, while when I went to vote, and declined to show ID absent a warrant or some Terry-type individualized suspicion, I was prevented from voting.
One of the themes of the oral argument was that the court might reject the pre-enforcement facial challenge, and insist on as-applied challenges, so I'll be looking for a lawyer, if anybody here knows a good lawyer.
1.10.2008 1:54am
Ralph Phelan (mail):
When informed that the Florida voter office said she’d registered personally in 2002 for a Florida voter card, and that this newspaper had a copy of her application, Ewing said, “Well, why did I do that? I¹m confused. I can’t recall.


Definitely a Florida voter!
[rimshot]
1.10.2008 9:36am
Reggae:
BTW, It's Marion County, with an "o".
1.10.2008 11:17am
David M. Nieporent (www):
One of the themes of the oral argument was that the court might reject the pre-enforcement facial challenge, and insist on as-applied challenges, so I'll be looking for a lawyer, if anybody here knows a good lawyer.
Unless you're a paying client, you should probably find a new hobby, because if you noticed, the references to "as applied" challenges clearly contemplated challenges by people who were unable to comply with the ID requirement -- not those who just didn't feel like it.

If not feeling like it were a good enough reason, then a facial challenge would be appropriate. If you read the discussion related to religious objectors, I think you'll see that the court is definitely not going to accept your more sweeping position.
1.10.2008 3:51pm
Loren (mail):

I worked in a bank for a while, so I've seen plenty of people without "approved" identification. They seem to get by just fine



Well at the last 3 financial institutions that my wife has worked at, people without "approved" identification don't get checks cashed. She does say that she should set up an operation with the police, as a large number of people who use the driveup tellers, are apparently operating vehicles without a license.

Now we all realize that a large number of the people who are attempting to cash checks, without ID are attempting to commit a fraud upon the bank. In a couple cases, my wife has called the issuer of the check to verify its validity. Those checks were stolen, but the person trying to cash it leaves before the police arrive.
1.10.2008 4:47pm