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.