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When the Supreme Court addresses the law of politics, the potential for controversy is rife. The Court risks its claim to political neutrality — and therefore a measure of its institutional prestige — because of the likelihood that its decision will have direct political consequences. The Court steps into the briar patch this week with oral argument in a case challenging an Indiana law that requires most individuals to show a government-issued photo ID to vote. According to the Republican politicians who championed the law, the requirement combats fraud. Under existing doctrine, courts evaluate the extent to which election restrictions would burden eligible voters. Here, even the U.S. Court of Appeals for the 7th Circuit, which upheld the law, found that it “will deter some people from voting.” The Supreme Court must then, under its decision in Burdick v. Takushi (1992), weigh that burden “against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff’s rights.” Under this scheme, the case of Crawford v. Marion County Election Board would seem to be fairly straightforward. It requires the Court to do no more than apply settled precedent to undisputed facts. Yet much more is at stake than the Indiana law. For the Court, and especially for Chief Justice John Roberts Jr., Crawford provides an opportunity to clarify the elusive line between law and politics. And for a Court still recovering from the self-inflicted wounds of Bush v. Gore (2000), that opportunity is important indeed. GOP-SPONSORED In 2005, Indiana enacted a law requiring an individual to present a government-issued photo ID at the polling place to vote. (There are exceptions for those who live in nursing homes or vote by absentee ballot.) The measure was sponsored by a Republican legislator and signed into law by the Republican governor. The Indiana law is one of a number of recent voter identification laws adopted by several states, including Georgia, Arizona, and Michigan. According to Richard Hasen, a law professor at Loyola Law School and the author of an amicus brief in Crawford: “With the exception of Arizona .�.�. every state that has enacted or tightened its requirements for voters to show identification at the polls has done so through the support of a Republican-dominated legislature [and] Democrats have uniformly opposed the efforts to impose voter identification requirements.” A number of plaintiffs — including the state Democratic Party — challenged the Indiana law in a federal suit. They asserted that the law unduly burdened their constitutional right to vote. The district court upheld the law, and the 7th Circuit, in a 2-1 decision, affirmed. Judge Richard Posner wrote the majority opinion, joined by another Republican appointee, Judge Diane Sykes. Judge Terence Evans, appointed to the court of appeals by President Bill Clinton, dissented. Posner’s decision displayed his occasionally contradictory tendencies toward, on the one hand, clear-eyed pragmatism and, on the other, hyper-rational logic. With respect to the former, Posner found that the Indiana law would discourage some people from voting. “Some people who have not bothered to obtain a photo ID will not bother to do so just to be allowed to vote, and a few who have a photo ID but forget to bring it to the polling place will say what the hell and not vote,” he wrote. Moreover, Posner recognized that “most people who don’t have photo ID are low on the economic ladder” and therefore, “if they do vote, are more likely to vote for Democratic than Republican candidates.” Posner’s common-sense observations were counterbalanced by his rigorous, logical analysis of the record. He noted that there “is not a single plaintiff who intends not to vote because of the new law — that is, who would vote were it not for the law .�.�. [and] thus no plaintiffs whom the law will deter from voting.” This analysis led Posner to conclude — somewhat in tension with his earlier observations on the law’s effects — that the voter ID law would not burden many eligible voters at all. Accordingly, Indiana did not have to do much to justify the law. However, as its attorneys acknowledged in oral argument, Indiana has never actually charged a person with the crime of voter fraud. This concession prompted Evans, in his dissent, to ask: “[W]here is the justification for this law?” (He continued: “Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass table? I think not.”) Posner analyzed the evidence of voter fraud — really the lack thereof — differently. “[T]he absence of prosecutions is explained by the endemic underenforcement of minor criminal laws .�.�. and by the extreme difficulty of apprehending a voter impersonator,” he wrote. Additionally, he found “an acute danger of fraud” in “the discrepancy between the number of people listed on the registered-voter rolls in the state and the substantially smaller number of people who actually vote.” In short, he found the Indiana law to be a reasonable attempt to discourage voter fraud. POLITICS IN COURT Posner made no mention of the underlying politics of the Indiana law — specifically that it was a Republican measure opposed by Democrats. As Professor Hasen noted, voter fraud measures are essentially just another form of partisan politics. Should the Supreme Court take that into consideration when deciding Crawford? With the presidential election this year, Bush v. Gore still looms over the Court. The decision all but eviscerated the line between law and politics, and even today skeptics question the Court’s capacity to act as a politically neutral institution. To the extent that affirming the law at issue in Crawford would give the Court’s imprimatur to Republican efforts to disenfranchise low-income voters, the outcome would encourage such skepticism. For Chief Justice Roberts, Crawford comes in only his third term. Appointed in 2005, Roberts was dazzling at his confirmation hearings, promising to decide cases narrowly and to promote consensus. Yet the performance of the Supreme Court during Roberts’ second term was at odds with his emphasis on consensus and modesty. The number of unanimous decisions dropped from his first term, and, according to legal commentator Anthony Lewis, more than one-third of the cases argued were decided by a 5-4 vote. Roberts consistently voted with the conservative majority in those cases. Crawford presents Roberts and the Court with an opportunity to transcend partisan politics, at least if the Court critically scrutinizes the Indiana law. This would require the Court to consider the practical effect on Indiana voters, which is more than minor, and to evaluate, with some rigor, Indiana’s justification for the law — a justification supported by scant evidence. Doing so will require the Court to resist any inclination to reflexively defer to the political branches. Crawford appears to be exactly the sort of case where the Court should provide more rigorous scrutiny. As legal scholar John Hart Ely has argued, the political branches do not deserve deference when they act to make the political process less representative and less fair, which seems to be what’s really going on in Indiana. A PREDICTION So how will the Supreme Court decide Crawford? One insight comes from the fact that the Court granted certiorari in response to an appeal of the 7th Circuit’s decision upholding the law. Conventional wisdom suggests that the Court would not have decided to review the decision unless it wanted to reverse the appeals court. Yet in this case, given the Court’s performance during Roberts’ second term, I suspect the opposite: that the Court granted cert to endorse state laws designed to discourage voter fraud — regardless of the political motives for or consequences of such laws. If the Court upholds the Indiana law, the fallout may prove damaging to its legitimacy. On the other hand, the Court could elevate itself above the political fray by refusing to bless what seems to be a Republican election tactic. Roberts, in particular, could honor his statements at his confirmation hearings and avoid appearing as partisan as, say, his predecessor, William Rehnquist, did in 2000. And the Court as a whole could step out from the shadow of Bush v. Gore.
Rodger D. Citron is an assistant professor of law at Touro Law Center in Central Islip, N.Y.

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