Fanning the Flames: The Freedom Project Blog


Saving Face at the Polls

By Shawn Healy
While the rest of the nation, myself included, was dissecting the results of the New Hampshire Primary, the Supreme Court was in the middle of oral arguments considering what could end up being a landmark voting rights case. At issue is a 2005 Indiana law that requires voters to show a government-issued ID in order to receive a ballot. The Indiana Democratic Party and the ACLU challenged the law on its face, arguing that it was an outright infringement on the right to vote. The state, and the Solicitor General, thought otherwise, the latter going so far as to argue that the facial challenge should be dismissed outright.

An explanation of a facial challenge is warranted here, followed by the underlying subtext to a controversy that has also surfaced in Georgia and across the nation. A facial challenge seeks to strike down a law as unconstitutional on its face, meaning the statute is never employed. An outright poll tax, for instance, would be struck down on its face as an unconstitutional violation of the 24th Amendment. By comparison, most cases require an actual case and controversy, meaning a voter would have to show actual evidence that his or her voting rights were denied or infringed upon.

The conservative wing of the Court seemed unsympathetic to the facial challenge of the Indiana law, setting the stage for a sweeping ruling that could alter the legal landscape as partisans rush to amend state voting practices.

This battle takes place in the context of a bitterly divided partisan climate. Republicans charge that voter fraud is prevalent and mandatory ID laws are a measure to stifle it. They argue that one cannot write a check or board an airplane without a government-issued ID, so why should the right to elect our political leaders have a lower threshold.

Democrats, on the other hand, contend that charges of fraud are entirely unsubstantiated (a recent study supported this claim). Moreover, by denying suffrage to voters without accredited ID's, the burden falls disproportionately on Democratic constituencies: the poor and minorities, also, the elderly. Judge Richard Posner of the 7th Court of Appeals rejected this claim, suggesting that partisan impact is not a sufficient reason to nix a law.

Also, the Indiana law allows unaccredited voters to cast a provisional ballot, and then furnish proper identification at their county seat within 10 days of the election. Democrats contend that this is a substantial burden, particularly in rural areas, though Chief Justice Roberts, a native Hoosier, suggested that county seats are readily accessible across the state.

In an era of an evenly divided national electorate in terms of partisanship, this decision could have an enormous impact on the outcome of the 2008 election and beyond. True, Indiana and Georgia are so-called "red" states, but with mandates of a Real ID in the works, similar laws could shift "purple" states to bright hues of red.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at

Dave Anderson
Vice President of Civic Programs
McCormick Foundation

Tim McNulty
Senior Journalist
McCormick Freedom Project

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