Lofty Matters

Democracy was the biggest loser in the Supreme Court on Monday. The court upheld the State of Indiana’s voter identification law. This serves to solve a nearly nonexistent problem by putting significant barriers between voters (particularly minorities) and the ballot box. Worse yet, the court presented a standard that paves the way for other states to adopt similar rules that discourage disadvantaged groups from voting. This is a huge reversal for a court that once considered itself a champion of voting rights.

In 2005, Indiana passed one of the nation’s toughest voter ID laws. It requires its voters to present government-issued photo identification at the polls. Private college IDs, employee ID cards and utility bills are not acceptable in Indiana. For people without a driver’s license (who are likely poor and likely minority) the burden is considerable and insurmountable. To get acceptable ID, people would be forced to pay fees for documents such as birth certificates.

This should not have been a difficult case for the Supreme Court. The court has long recognized that the right to vote is so fundamental that a state can’t restrict it unless it can show that the harm it is seeking to prevent outweighs the harm it imposes on the voters.

It is obvious that the Indiana law does not meet this test. The harm it imposes on voters is considerable. The state’s interest in the law is minimal. It was reportedly passed to prevent people from impersonating others at the polls. There is no evidence that this has ever happened in Indiana, however. It seems much more likely that the goal of the law’s Republican sponsors was to disenfranchise groups that have Democratic leanings.

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 very 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 far worse. It argued for upholding all but the most severe burdens on voting.

A hovering specter 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 that his equal protection rights were being denied by a state election system. This individual was George W. Bush. The court had no hestitation about telling the state what to do.

There are many good reasons to remember Bush v. Gore. Monday’s ruling was a reminder of one of them. Seven years after it invoked the Constitution to vindicate Mr. Bush’s right to fair election procedures we are still waiting for the court to extend this guarantee to every American.

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