Everything was supposed to change after Bush v. Gore. Never again would the outcome of a presidential election be left in the hands of nine Supreme Court justices who issued their opinion amid nation-wide questions of "hanging chads" and "butterfly ballots." In its opinion, the court said it anticipated "legislative bodies nationwide" would "examine ways to improve the mechanisms and machinery for voting" in order to avoid a repeat of the 2000 recount disaster.
Seven years later, however, local, state, and federal governments have failed to fix these flawed voting "mechanisms," leaving the country with low-quality voter registration databases and inadequate safeguards for maintaining voter rolls. It takes a hacker just one minute to break into an electronic voting machine.
Yet many conservatives have turned their backs on these institutional problems and instead focused their hostilities on individual voters. With reports of rampant "voter fraud" from by organizations of questionable credibility, conservatives have imagined hordes of nefarious undocumented immigrants casting ballots under fake names. As a consequence, the right has touted voter ID laws as a way to improve the electoral system. Exactly as the Supreme Court envisioned, right?
Wrong. These regulations have instead created a solution for a non-existent problem, preventing legitimate voters from casting ballots. Voter fraud has become right-wing code for suppressing minority and liberal voters.
On Wednesday, the Supreme Court heard oral arguments challenging Indiana's voter ID law, the most restrictive in the nation. Since 2005, residents have been required to show a government-issued photo ID before voting at a polling place or even casting an absentee ballot. Voters without such IDs may cast a provisional ballot on election day, but only if 10 days later, they file an affidavit claiming indigence or a religious objection to being photographed. Indiana's Republican-controlled General Assembly passed the law on a party-line vote, and it was later signed by Republican governor Mitch Daniels.
This case, Crawford v. Marion County Election Board, is one of the most important on the electoral process to come before the court in recent times. But legal experts aren't expecting too many surprises. Unless the case is thrown out, the justices will likely break down into their ideological fault lines, as in Bush v. Gore. "I think what you're seeing is the typical split," notes Tova Wang, an election reform expert at The Century Foundation. "You have the 4-4 liberal-conservative split, with Justice Anthony Kennedy as the swing vote."
Kennedy has already indicated that he will likely side with the court's conservatives and vote to uphold Indiana's law. "You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?" Kennedy asked Paul Smith, who argued the case for the Indiana Democratic Party. Justice Antonin Scalia wondered why the court should "wash away the whole statute" to remedy the "inconvenience to a small number of people." Indiana Solicitor General Thomas Fisher tried to argue to the justices that only "an infinitesimal portion of the electorate could even be, conceivably be, burdened by" the law.
Voter ID laws, however, affect more than an "infinitesimal" number of Americans and are more than a "minor inconvenience." According to the federal government, there are as many as 21 million voting-age Americans without driver's licenses. In Indiana, 13 percent of registered voters lack the documents needed to obtain a license, and therefore, cast a ballot. These restrictions disproportionately hit low-income, minority, handicapped, and elderly voters the hardest, leading to lower levels of voter participation.
Those affected also tend to vote Democratic, which may explain why Karl Rove and his colleagues have pursued so-called voter fraud with such zeal. Several U.S. attorneys ousted in the Bush administration's infamous prosecutor purge even alleged that they were fired because they refused to aggressively prosecute baseless voter fraud claims.
There is no credible evidence of rampant voter fraud at polling places nationwide. Sure, there may be ballot box stuffing, electronic voter machine hacking, and list manipulation. Voter ID laws, however, don't address these problems. Of the 38 cases of voter fraud the Justice Department prosecuted between 2002 and 2005, 14 were thrown out. With no credible studies to back up their allegations of voter fraud, conservatives even established a front group led by the general counsel of the Bush-Cheney 2004 campaign to create such reports.
Whatever the outcome of this case, it will set off legal battles nationwide. Currently, seven states require photo ID to vote. Another 18 require non-photo ID, including Missouri, whose State Supreme Court struck down a photo ID requirement in Oct. 2006. Yet if the U.S. Supreme Court upholds Indiana's law, conservatives in other states will have new ammunition to press forward with more restrictive laws.
This case may be focused on a different set of issues than in Bush v. Gore, but as Calderon observes, the Supreme Court similarly risks being seen as "completely political." Once again, the justices' decision will touch upon whether democracy is plagued more by individuals trying to maliciously cast false ballots, or by the inability of all eligible Americans to take part in the electoral process. Conveniently, this case will likely be decided in June, just in time for the 2008 general elections. It looks like the nation hasn't learned all that much since 2000 after all.