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The New York Times
Opinion
The Court Fumbles on
Voting Rights
EDITORIAL,
nytimes.com on the Web, April 29, 2008
Democracy was the big loser in the
Supreme Court on Monday. The court upheld Indiana’s voter identification
law, which solves a nearly nonexistent problem by putting major barriers between
voters — particularly minorities — and the ballot box. Worse, the court
set out a standard that clears the way for other states to adopt rules that
discourage disadvantaged groups from voting. It is a sad reversal for a
court that once saw itself as a champion of voting rights.
In 2005, Indiana passed one of the nation’s toughest voter ID laws. It
requires voters to present government-issued photo ID at the polls.
Private college IDs, employee ID cards and utility bills are unacceptable.
For people without a driver’s license — who are disproportionately poor and
minority — the burden is considerable. To get acceptable ID, many people
would be forced to pay fees for underlying documents, such as birth
certificates.
This should not have been a hard case. The court has long recognized that
the right to vote is so fundamental that a state cannot restrict it unless it
can show that the harm it is seeking to prevent outweighs the harm it imposes on
voters.
The Indiana law does not meet this test. The harm it imposes on voters,
some of whom will no doubt be discouraged from casting ballots, is considerable.
The state’s interest in the law, on the other hand, is minimal. It was
supposedly passed to prevent people from impersonating others at the polls, but
there is no evidence that this has ever happened in Indiana. It seems far
more likely that the goal of the law’s Republican sponsors was to disenfranchise
groups that lean Democratic.
Unfortunately, only three justices voted to hold the law unconstitutional.
The other six fell into two groups. Three — Justices John Paul Stevens and
Anthony Kennedy and Chief Justice John Roberts — signed a lead opinion that set
a disturbingly low bar for what sort of interference with voting the
Constitution permits. A second opinion, signed by Justices Antonin Scalia,
Clarence Thomas and Samuel Alito, was worse. It argued for upholding all
but the most severe and unjustified burdens on voting. Richard Hasen, a
Loyola Law School professor, notes that if the court had taken this opinion’s
approach in 1966, it is not clear it would have overturned the poll tax.
Hovering over Monday’s decision was a case that was not mentioned: Bush
v. Gore. In 2000, the Supreme Court took seriously the claims of one
individual — George W. Bush — that his equal protection rights were being denied
by a state election system, and the court had no hestitation about telling the
state what to do.
On “60 Minutes” on Sunday, Justice Scalia yet again told the public to “get
over” that ruling. There are many good reasons to remember Bush v. Gore,
and Monday’s ruling was a reminder of one of them. Seven years after it
invoked the Constitution to vindicate what it saw as Mr. Bush’s right to fair
election procedures, we are still waiting for the court to extend this guarantee
with equal vigilance to every American.
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