In Focus This Week
Supreme Court Justices question timing of voter ID challenge
Unanswered questions about law’s impact on voters remain
By Daniel C. Vock,
Stateline.org staff writer
Several U.S. Supreme Court justices on Wednesday questioned whether it’s too early to consider striking down an Indiana law requiring voters to show photo identification, especially because there is limited evidence showing whether the rules are discouraging voters.
The high court heard arguments in a challenge brought by Democrats to Indiana’s law, which passed the Indiana General Assembly with only Republican support in 2005.
The law was in place for the congressional races in 2006, and the high court’s decision could determine whether Indiana can use it for this year’s presidential race. It could also potentially affect similar laws in Georgia and Florida.
But despite three years of litigation over the Indiana measure, 39 friend-of-the-court briefs filed in the case and intense media interest in the outcome, the judges still couldn’t nail down some very basic facts about the law.
Left unanswered were their questions about how often people impersonated other voters or how many Indiana voters would face new obstacles because of the law and why Indiana lawmakers chose such strict rules to prevent voter impersonation fraud.
“You had not come up with a single instance of somebody who was denied the right to vote because they didn’t have a photo ID,” Chief Justice John Roberts told Paul Smith, the lawyer representing the Indiana Democratic Party in its challenge to the law.
Smith explained that the lawsuit was filed before the state held any elections under the 2005 law. But the lack of specifics about who the law might harm and how it might harm them continued to crop up during the hour-long argument.
The Indiana Democratic Party challenged the law in federal court in 2005. Judges appointed by Republican presidents upheld it at both the trial and appellate levels. In the appeals court, though, a judge named by a Democratic president issued a caustic dissent.
Justice Ruth Bader Ginsburg noted that 34 people cast provisional ballots in Marion County because they failed to have the proper identification, but only two of those counted because the other voters didn’t follow up with a visit to county offices to prove their identity.
The law requires voters to present a government-issued photo ID in order to take part in the elections. Voters without the proper identification can cast provisional ballots, but those only count if the voter shows a photo ID at a county election office within 10 days.
Ginsburg insisted that the harm was “not hypothetical” but “real.” Poor people without the proper identification wouldn’t be able to vote, unless they make a special trip to a county office on top of going to the polling place.
There’s a good reason to consider the challenge before voters complain, Ginsburg said. Once the elections occur, it’s too late. Voters will face increased difficulties at the polls, which could discourage them from participating or make it more likely their votes won’t count, she said.
That means “the result will be skewed in favor of the opposite party (the Republicans), because there are people who have not been able to vote,” she said.
Smith, the lawyer for the challengers, said the court should take into account even the “minor inconveniences” suffered by regular voters, along with the bigger hurdles for people without IDs.
“You want us to invalidate a statute on the ground that it’s a minor inconvenience to a small percentage of voters?” asked Justice Anthony Kennedy.
Justice David Souter pressed lawyers for both sides to estimate how many voters didn’t have the types of government-issued IDs — like driver’s license — necessary to vote under the law. The answers he got ranged from 10,000 to 400,000.
Indiana Solicitor General Thomas Fisher told Souter the law would affect only an “infinitesimal part of the electorate.”
But Souter objected. “Isn’t that a bit of a stretch?” he asked.
Justice Antonin Scalia cited the scant evidence as one reason to settle the controversy sometime later, when voters who actually claimed to be harmed by the law could bring their specific complaints to court.
“This Court is sitting back and looking at the ceiling and saying, oh, we can envision not the case before us, but other cases. Maybe it’s one half of one percent or maybe it’s 45 percent. Who knows? But we can imagine cases in which this law could be unconstitutional, and therefore, the whole law is unconstitutional. That’s not ordinarily the way courts behave, is it?” he asked.
Justice Samuel Alito questioned how the court could decide the case without those key facts. “How do we tell whether this is on one side of the line or the other side of the line?” he asked.
But Smith argued that taking a piecemeal approach would lead to lots of further litigation, with different rules for every type of voter who claimed to be harmed by the law.
“The whole thing would be a complete and utter morass,” he said.
In Focus This Week Pt. 2
On the Scene: The curious and passionate wait to hear Indiana case
Few remain neutral on the issue of government-issued ID at polls
By Kat Zambon
electionline.org
Tourists and students made up many of those waiting in line on Wednesday morning at the Supreme Court to listen to the arguments in Crawford vs. Marion County Election Board, mixing with those who feel passionately about the issue of polling-place voter ID.
While a number of attendees came upon the case by chance, most agreed that the issue was relevant in their part of the world and that they’re interested in the outcome.
“We didn’t even know what was going on today,” James Neild, a visitor from Lakeville, Minn. said while standing in front of the Court with his family, including his 10-year old son and seven-year-old daughter.
Neild said he didn’t think the decision will affect him much since he has an ID.
“Everyone just hands over their driver’s license automatically” at the polls, he said. However, “it’s an interesting argument and I’m not sure which side I’m on … there’s a lot of discussion in Minnesota about having ID at the polls.”
David Collins, a Canadian visiting scholar at Georgetown University’s School of Law said that legislators in his home country are debating how to enforce photo ID requirements when Muslim women wear veils to the polls.
James Jacobson, a Fairfax, Va. resident who wanted to see the Court in action, said he looked at the cases on the Court’s calendar and thought Crawford would be the most interesting.
“Most people have access to a government provided ID so I don’t think it’s that significant,” he said.
On a visit from Heidelberg, Germany, Chip Lambert, a U.S. citizen from North Carolina said that his great aunt is one of those without an ID.
“She can’t see very well … so her driver’s license is expired,” he said. Lambert said that he has met Germans who voted illegally in U.S. elections and was surprised when he registered to vote that he wasn’t required to prove his citizenship. “I just don’t like the idea of a national ID to solve” voter fraud, he said. “That would mean, in effect that … we need a national ID.”
Mark Peplowski, a political science professor at the College of Southern Nevada led the Capitol Club student group on a trip to Washington. Wednesday marked their return to the Court, having visited during a death penalty case on Monday.
“I think that it’s the least intrusive means to ensure integrity in the system,” Peplowski said. “Every voter had to carry a draft card when I was a boy.”
While waiting in line, William Ramos, National Association of Latino Elected and Appointed Officials Educational Fund director said that polling place fraud doesn’t exist. “It happens with machines, it happens with those who run elections … this is a solution in search of a problem,” he said.
“We are definitely concerned about laws that would affect anyone, not just Latinos,” Ramos said. “What we want to do is promote democracy.”
Classes haven’t started at Howard University yet but Edonna Hughes, an English major living in Hyattsville, Md. got an e-mail from her constitutional law professor suggesting that students attend the arguments. “I don’t think there’s enough evidence for them to pass that law,” she said.
Making the trip from Villanova Law in Philadelphia, Jessica DeBartolo had a similar story. “We just didn’t have class today. We’re law students so this is right up our alley.”
In Focus This Week Pt. 3
Indiana voter ID case could have broader implications for election law
By Kat Zambon
electionline.org
Legal experts, election officials and civil libertarians around the country will be eagerly awaiting a ruling on Indiana’s photo-only voter ID law following oral arguments Wednesday at the U.S. Supreme Court.
As critical as the case might turn out to be in a presidential election year, it could have even broader implications for election law, experts said earlier this month in Washington.
“The Indiana case presents a scenario in which the Supreme Court will decide … what the fundamental right to vote means,” Jon Greenbaum, Voting Rights Project director at the Lawyers’ Committee for Civil Rights said at a briefing hosted by the American Constitution Society. “This opinion is likely to go a long way in determining how fundamental that right to vote is.”
When the Supreme Court deliberates over Crawford vs. Marion County Election Board and Indiana Democratic Party vs. Rokita following this week’s arguments, they will not only be considering the issue of voter ID but they may also set precedents that could dramatically affect the way that election law cases are handled in the future.
In Burdick vs. Takushi – a case in which the state of Hawaii was sued for limiting a voter’s ability to cast a write-in ballot – the Court determined that courts must apply strict scrutiny to a law that places a severe burden on an individual’s right to vote and those supporting the law must demonstrate why the law is necessary, said Deborah Goldberg, director of the Democracy Program at New York University’s Brennan Center.
Judge Richard Posner, who sided with the majority when the 7th Circuit Court of Appeals heard Crawford, “applied a very low level of scrutiny to the law,” said Tova Wang, democracy fellow at The Century Foundation. Posner looked at how many voters would be harmed instead of the burden to the individual voter, Wang said in a January 4 conference call hosted by the Brennan Center.
“I think that this is sort of a frightening approach for a judge to take in a voting rights case,” she said.
In contrast, Judge Terence Evans, the lone dissenter on the 7th Circuit wrote, “We should subject this law to strict scrutiny—or at least, in the wake of Burdick something akin to ‘strict scrutiny light’ —and strike it down as an undue burden on the fundamental right to vote.”
Brad Smith, a professor at Capital University Law School and former Federal Election Commission (FEC) chair, said there is no concrete evidence that a requirement for voter ID represented a burden any more severe than voter registration does.
“I feel very comfortable in saying … there has to be evidence that something has been a burden,” Smith said. The plaintiffs are pushing for strict scrutiny in this case because courts regularly rule for plaintiffs when strict scrutiny is applied, he said.
“I don’t think the plaintiffs have made a good case that strict scrutiny applies,” Smith said. “Even under strict scrutiny, I’m not sure they’d win.”
Greenbaum said that he has faced challenges fighting voter ID laws based on standing, particularly in Common Cause/Georgia vs. Billups. “In Georgia we found a whole bunch of people” who would be disenfranchised by the state’s voter ID law and “submitted a whole raft of affidavits,” he said. However, the judge in the case said that affidavits weren’t good enough and plaintiffs needed to appear in court. Those who testified were put in an awkward position when some had traveled long distances to the court yet said they had no means to make the trip to their county clerk’s office to obtain an ID, Greenbaum said.
Similarly, Goldberg said that Indiana Democratic Party vs. Rokita was originally filed in district court after the law went into effect but before elections were held, making it difficult to find plaintiffs who had standing because they had not yet been disenfranchised.
“Anytime you’re dealing with constitutional rights, especially fundamental rights, the scrutiny should be strict,” said Erick Cage, a lawyer attending the oral arguments Wednesday. The standing of the Indiana Democratic Party has been challenged in their case against Rokita but so far the Court has held that they have sufficient standing, he said.
Three organizations have filed briefs charging that plaintiffs lack standing in the case. The Lawyers Democracy Fund, which has been funded by the Republican National Lawyers Association and launched its Web site the same day it delivered their brief, wrote that the organizational plaintiffs cannot claim standing on behalf of those who lose or forget their ID. Mountain States Legal Foundation called the injury to the Democrats and organizational partners conjectural and hypothetical. Washington Legal Foundation wrote that the plaintiffs’ claims of associational and third party standing fail because they have not identified an individual voter harmed by the law while they can’t argue direct standing because they have not been personally injured by the law.
“I think a court could say” that the plaintiffs lack standing because “normally you have to have a person who has been denied,” Capital University’s Smith said, though he thinks they do in this case.
Goldberg said that the Court has held that the right to vote is a personal right so when one person is disenfranchised, that is one person too many. Smith disagreed.
“It’s tempting in this type of case to err on the side of the right to vote,” Smith said, “[but] do you want to err on the side of allowing fraudulent votes to cancel out legitimate votes? … It’s a balancing act.”
“There just isn’t much evidence,” Smith said. “Usually you can say, it may be the way to err on the side of the constitutional right, but here erring on the side of the constitutional right may be upholding the law.”
Election Reform News This Weel
The first of 41 states’ presidential primaries was held this week and if the scene throughout New Hampshire on Tuesday was any indication, election officials are in for a hectic primary season. According to the Union Leader, turnout in New Hampshire was at a record high and lines formed early at polling sites across the Granite State. Although there were few reports of problems, several polling sites throughout the state ran out of ballots and had to use absentee ballots until more could be brought in and some sites also ran low on voter registration forms. As polls were closing, Deputy Secretary of State David Scanlon told the paper several town clerks had to dip into reserve ballots. Londonderry, Merrimack and Bedford, said Scanlon, were among towns “down to the wire” on supplies, and his office had to deliver several hundred extra ballots to Salem. “I know we have to have hit a record turnout for a primary,” said Manchester City Clerk Carol Johnson told the paper.
With a midnight deadline looming, more than 16,000 Arizonans used the state’s online voter registration system on Monday. It was the second highest single day of online registrations ever and according to The Arizona Republic, the number could have been higher were it not for technical problems that slowed down the process. Problems with the Web site caused the system to go down for hours on Monday and then work intermittently in the evening, leaving many people scrambling to register. People who tried to register online said the site slowly processed their information, then told them the service was unavailable before they could finish. State officials said the problems originated with a national driver’s license database run by AAMVAnet, which links Arizona’s motor-vehicle database with its voter-registration system.
Arizona will not be the only state in the country allowing online voter registration for much longer. The state of Washington joined Arizona this week in allowing residents to register to vote online if they have a valid Washington driver’s license or state ID card. According to The Oregonian, Secretary of State Sam Reed’s office is calling this the first phase of the online registration project in which applicants can complete registration forms online. State election officials print out the form and mail the paper version to county election officials, who then review the forms to determine if an applicant should be added to the voting rolls. A second phase of the registration project will allow applications to be electronically transmitted to county officials.
As states across the nation scramble to secure the services of thousands of poll workers for their primaries and general elections, Ohio is looking to lift residency requirements in order to allow college students to be poll workers. The measure was introduced by state Rep. Larry Wolpert, R-Hilliard, who represents Franklin County, home to The Ohio State University and a pool of 50,000 potential poll workers. According to The Associated Press, Matthew Segal, executive director of the Student Association of Voter Empowerment, said it is logical for college students to be able to work the polls where they go to school. “There is no better model of civic engagement than to have the college students participate in the community where you live rather than to feel like an outsider,” Segal told the news organization.
Job Postings This Week
National: Voter ID, II, III, IV, V, VI, VII, VIII, IX, X; Voting technology, II
California: Vote-by-mail, II; Primary election
Colorado: Voting system
Florida: Vote count, II
Guam: Election reform
Illinois: Special election
Indiana: Polling places; Voter ID
Michigan: Primary
New York: Voter registration
North Carolina: Voting machines
North Dakota: Vote-by-mail
Ohio: Voting directive; Voting technology; Vote system, II
Pennsylvania: Electronic voting
Tennessee: Voting machines
Vermont: Instant runoff voting
Virginia: Voter ID
West Virginia: Voting machines
Some sites require registration
Job Postings This Week
All job listings must be received by 12 p.m. Eastern on Wednesday for publication in our Thursday newsletter. Job listings are free but may be edited for length. Whenever possible, include Internet information. Please email job postings to mmoretti@electionline.org
Election Deputy Director II — Carroll County, Md. Supervisory or managerial level of work assisting an Election Director in conducting elections in local jurisdictions within the State. Employees supervise office support staff, which may include subordinate supervisors. Employees receive general supervision from an Election Director. Employees may be required to work evenings and weekends. The work may require travel throughout the State to exchange information regarding the election process and promote voter registration. Qualifications: Graduation from an accredited high school or possession of a high school equivalency certificate; four years of experience applying federal, state and local election laws and regulations applicable to conducting elections. Salary: $35,568 – $60,222. Application: May be obtained by visiting our website at: www.dbm.maryland.gov; by writing to DBM, OPSB, Recruitment & Examination Division, 301 W. Preston Street Baltimore, Maryland 21201; or by calling 410-767-4850, toll-free: 800-705-3493; TTY users call Maryland Relay Service, 800-735-2258. Deadline: February 1.
Election Information System Specialist — Baltimore City. Full performance level of work providing information technology support to staff members of a local election board. Employees in this classification coordinate maintenance and troubleshooting of election information systems and work in conjunction with State Board of Elections information technology staff, local government information technology staff, software vendors and contractors to resolve microcomputer hardware and software problems. Employees in this classification do not supervise. Employees receive general supervision from an Election Director or Election Deputy Director of a local election board. Employees may receive assignments and technical direction from the Chief Information Officer of the State Board of Elections. Employees may be required to work evenings, weekends and holidays and to travel to polling sites during Election Day. Employees in this classification are assigned to work in one or more local election board offices. Employees assigned to work in more than one local election board office will be required to travel between offices. Qualifications: Two years of experience in computer programming; implementing, troubleshooting or supporting local or wide area networks; installing and troubleshooting personal computers or evaluating, implementing or maintaining microcomputer hardware and software; 18 credit hours in computer information technology, programming or networking from an accredited college or university may be substituted for up to one year of the required experience; completion of a certification program in computer programming for personal computers, local or wide area networks or troubleshooting such as Microsoft Certified Professional or an equivalent program may be substituted for one year of the required experience; additional experience in computer programming; implementing, troubleshooting or supporting local or wide area networks; installing and troubleshooting personal computers or evaluating, implementing or maintaining personal computer hardware and software may be substituted for the required education on a year-for-year basis. Salary: $35,568 – $60,222. Application: May be obtained by visiting our Web site at: www.dbm.maryland.gov; by writing to DBM, OPSB, Recruitment & Examination Division, 301 W. Preston Street Baltimore, Maryland 21201; or by calling 410-767-4850, toll-free: 800-705-3493; TTY users call Maryland Relay Service, 800-735-2258. Deadline: February 1.
Executive Assistant — The Brennan Center. We seek an energetic, motivated, well-organized individual who will provide administrative support and research assistance to the Democracy Program Director and Deputy Directors. The Special Assistant will work closely with the Democracy Program’s dynamic management team as they address key voting rights issues in a critical period. Responsibilities include: Managing calendar (includes scheduling and confirming meetings); drafting correspondence; communicating with internal and external constituents; coordinating key projects and meetings; making travel arrangements; answering and screening incoming calls; filing and general administrative support. Qualifications: A bachelor’s degree; keen attention to detail and an ability to multi-task; an openness to evolving responsibilities; excellent oral and written communication skills; an interest in politics and public policy; sense of humor and an ability to build positive working relationships; proficiency in MS Office including Word, Excel, and PowerPoint. Salary: Commensurate with experience. Excellent benefits package. Application: Please send cover letter, resume, and brief writing sample by e-mail to brennancenterjobs@nyu.edu, with Democracy Assistant in the subject line. No phone calls, please. Deadline: Application deadline is January 15, 2008, but applications will be considered on a rolling basis. Web site: www.brennancenter.org.
Fellowship — The Brennan Center. The Brennan Center for Justice at NYU School of Law is seeking a junior attorney with up to five years of experience for a one-year fellowship with the Brennan Center’s Democracy Program. The Program seeks to bring the ideal of representative self-government closer to reality, by eliminating barriers to full and equal political participation and by striving to ensure that public policy and institutions reflect the diverse voices and interests that make for a rich and energetic democracy. This position involves work principally on voting rights (including the rights of people with felony convictions) and reform of election administration (including voter registration restrictions, photo ID requirements for voting, and other practices likely to suppress the vote and have a disproportionate impact on communities of color). Activities include legal and policy analysis and counseling; legislative drafting at federal, state, and local levels; administrative and legislative advocacy; public education and scholarship; and litigation in trial and appellate courts. Ideally, the position will commence in January 2008 or very soon afterward. Qualifications: The ideal candidate will have a J.D., up to five years of legal experience (including clerkships, if any), and a strong entrepreneurial spirit. Excellent legal research, analysis, and writing skills; initiative, imagination, and versatility; organizational skills; ability to deal with diverse clients and to coordinate work effectively with other organizations. Legal or other advocacy experience, especially on voting rights and elections at the state level, organizing experience, and demonstrated commitment to public interest law are real pluses. Salary: Commensurate with experience. Excellent benefits package. Applications: Applications will be considered on a rolling basis, and a decision will be made as soon as an appropriate candidate is identified. Please send cover letter, resume, two writing samples, and the names, e-mail addresses, and telephone numbers of three references to brennancenterjobs@nyu.edu, with “Voting Rights Fellow” in the subject line. The Brennan Center is a nonprofit, non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice. The Center now has approximately 55 staff members, including attorneys, researchers, and public affairs professionals. Web site: http://www.brennancenter.org.