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Friday, October 20, 2006 

Surprising Voter ID Developments

On the heels of my post about the Seventh Circuit's voter ID case, the Supreme Court has invalidated the Ninth Circuit Court of Appeals' decision that blocked Arizona's voter ID law. Rick Hasen at the Election Blog has the heads up. In the Court's unanimous opinion, the Justices describe the law itself...
The election procedures implemented to effect Proposition 200 do not necessarily result in the turning away of qualified, registered voters by election officials for lack of proper identification. A voter who arrives at the polls on election day without identification may cast a conditional provisional ballot. For that ballot to be counted, the voter is allowed five business days to return to a designated site and present proper identification. In addition any voter who knows he or she cannot secure identification within five business days of the election has the option to vote before election day during the early voting period.
The Court then examines the applicable election law precedent, reaffirming that states have a compelling interest in maintaining the integrity of their elections...
Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.
The Court quotes the language from Reynolds v Sims that voting rights can be denied by dilution (in this case, dilution by fraudulent votes). The Court makes it clear that they are not looking at the merits of the case...
As we have noted, the facts in these cases are hotly contested, and "[n]o bright line separates permissible election-related regulation from unconstitutional infringements." [citation omitted]. Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules.
Justice Stevens' short concurring opinion is incredibly interesting. He says that there are important factual issues about the effects of the law that are unknown. The only way to actually know what problems (if any) the law will cause is to see it in effect. Stevens also says that this issue is so important that the Court should be making its judgment based on facts, not speculation. This strikes me as sort of odd. It seems like Stevens is saying that it's okay for the Arizona election to be an experiment. I don't know how the people of Arizona would view that... A commenter on Volokh thinks that this is Stevens telling political activists to keep the election clean. By doing that, they would minimize the amount of fraud (or maybe even the threat of fraud) in relation to the chilling effect of the ID requirement keeping people away from the polls. Intriguing, but I don't know if Stevens is that Machiavellian.

Hasen believes that the opinion is important for two reasons...
1. The court notes important voter interests on both sides of the voter i.d. debate (echoing what Judge Posner said in 7th Circuit oral arguments on the Indiana voter i.d. law earlier this week).
2. The Court seems to be signaling an argument against last minute court interventions in the machinery of running elections unless really necessary.
The Court is at the very least recognizing the balancing of interests that Judge Posner discussed a few days ago. There aren't any clues about their views on the merits of the case, though. We can't really extrapolate what they would do if this case was before them based on this short opinion. The second point seems to be a procedural warning shot fired across the bow of the appeals courts. Some courts, the Ninth in particular, don't seem to give the lower District Courts enough deference in factual matters. The judges on the Ninth Circuit seemingly ignored the factual findings of the District Court and offered no justification for their order. The Court is also saying that appeals courts need to be wary that their decisions can result in confusion, causing more voters to stay away from the polls.

And I thought this would be a slow Friday...

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