Monday, April 28, 2008

legislating or litigating partisan outcomes

While Barack Obama announced his plan last week to win the general election by registering millions of people to vote, the U.S. Supreme Court one upped him today by making it harder for those he registers to be able to cast their vote.

During the Warren Court, the court built up the right to vote as a fundamental right, one that the government could not impinge upon via a law/policy without undergoing strict scrutiny. The strict scrutiny standard is the highest one the Court uses, and as a practicle matter used to mean that if there was any infringement on a right under the strict scrutiny test, the law was deemed unconstitutional.

I say used to, because the Radical Roberts Court seems to have things in reverse. Despite Indiana presenting ZERO evidence of in-person voting fraud in their state, the court in a fractured plurality opinion fashion (reminincent of the Rehnquist Court) said that the minorities, homeless, elderly, and poor that challeneged the Hoosier State's law did not meet their burden. Justices Stevens, Roberts, and Kennedy claim that a state needs to come forward with merely plausible non-discriminatory interests to justify a law effective the fundamental right to vote. The evidence they site of these non-discriminatory interests are 1) an ancedote from NYC's Tamney Hall corrupt (Democratic) machine of the post-civil war era and 2) a single case of impersonation voter fraud in 2004 Washington state governor's race (where Democrat narrowly won by a few hundred votes after a contested recount).

Notice a pattern? The two examples were of a different time and place, one of which wasn't actually evidence, but a story that might or might not be true. More importantly, both examples were those of Democrats winning under suspicious circumstances. In Indiana, ONLY Republicans voted for this law and a Republican Governor signed it into law. Those who it will disproportionately effect--the elderly, the poor, minorities, homeless, students, etc.--are all groups that vote overwhelming for Democrats. On appeal, only Republican appointed judges voted to uphold the law, and Democratic appoint judges voted to strike the law. At the Supreme Court, only one Justice appointed by a Republican president voted against the law (Souter) and the rest voted along party lines like Bush v. Gore.

Stevens, Roberts and Kennedy threw a fake bone to those challenging these photo-ID laws, claiming to leave open the possibility for as-applied challenges (meaning, this law is generally constitutional, but it is unconstitutional as applied to me because...) But they made such challenges incredibly difficult to succeeed. That is, the burden has been flipped from those proposing election laws to those opposing election laws.

Justices Scalia, Alito, and Thomas go ever further, finding it irrelevant that the challengers might be more burdened than the average voter, suggesting that the Court should ignore the poor, minority, elderly, and students and look instead only to "average" voters. Apparantly, the Court should not look at the parties before them because they are too sympathetic and might actually have been harmed by the law.

I find it very disturbing that the U.S. Supreme Court seems fine with laws and legal decisions that effectively put one political party in power over another, and the empowered party "just so happens" to be that of the person that appointed the majority of the Justices. Prof. Rick Hasen of Loyola University [LA] Law School is also disturbed. "I fear that, despite the Stevens-Kennedy-Roberts' opinion's best intentions, this opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections. It is a real disappointment from that perspective."

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