After Indiana enacted an election law (SEA 483) requiring citizens voting in person to present government-issued photo identification, petitioners filed separate suits challenging the law’s constitutionality.

Following discovery, the District Court granted respondents summary judgment, finding the evidence in the record insufficient to support a facial attack on the statute’s validity. In affirming, the Seventh Circuit declined to judge the law by the strict standard set for poll taxes in Harper v. Virginia Bd. of Elections, 383 U. S. 663, finding the burden on voters offset by the benefit of reducing the risk of fraud.

Held: The judgment is affirmed.

Update: See Court rejects voter ID challenge; no new grants (SCOTUSblog) for a quick rundown of the opinion and Supreme Court Upholds Voter ID Law in Indiana (AP via NYT) for the earliest news coverage.

Update #2: See MU Professor Says U.S. Supreme Court’s Decision to Uphold Voter ID Law Should Not Revive Stricken Missouri State Law (MU News Bureau) for analysis on the potential Missouri impact by MU Law Professor Reuben, Initial Thoughts on the Supreme Court’s Opinion in Crawford, the Indiana Voter Identification Case (Election Law Blog) for a general breakdown by Loyola (LA) Professor Rick Hansen, In a 6-to-3 Vote, Justices Uphold a Voter ID Law (NYT) for more detailed news coverage by Linda Greenhouse, and the New York Times’ Editorial (from 4/29/08) The Court Fumbles on Voting Rights (NYT).

NEW YORK – Citing new evidence that Indiana’s voter identification law is disenfranchising thousands of Indiana voters, lawyers at the Brennan Center for Justice at NYU School of Law and a coalition of voting rights organizations filed a friend-of-the-court brief today urging the U.S. Supreme Court to scuttle the Indiana law. The brief is one of more than 20 amicus briefs being filed today by voting rights advocates, current and former Secretaries of State, law professors, historians, political scientists, student organizations, labor unions and civic, religious and civil rights organizations. A full list of amici and a summary of their briefs is available here.The Brennan Center’s brief comes as new research, also released today, from the University of Washington Institute on for the Study of Ethnicity and Race is providing the first direct evidence that Indiana’s voter identification law is disenfranchising thousands of Indiana voters, especially African-American and low-income voters as well as senior citizens and students.

“The state of Indiana has the most stringent voter identification law in the country. This study makes clear that their law – rather than preventing fraud – is actually disenfranchising substantial numbers of Indiana voters,” said Michael Waldman, the Brennan Center’s executive director.

A quick rundown of panel discussion impressions (you can access our agenda and case summaries here) …

Bowman on Sentencing (Gall v. U.S., and Kimbrough v. U.S.)

Professor Bowman kindly forwarded me his article in the Federal Sentencing Reporter upon which he based his presentation.  You can access it here.  As the title of Professor Bowman’s article (“The Question is Which is to be Master – That is All”) suggests, recent sentencing guideline decisions have turned into a struggle between trial courts and appelate courts over the discretion judges have in sentencing using elemental and non-elemental “facts.”  This power struggle has crowded-out Congress and the state legislatures whose statutory provisions initiated the mandatory sentencing debate in the first place.  Professor Bowman expressed concerns that the narrow intra-judicial battle could frustrate sentencing reform at both the state and federal level by leaving the legislative and executive branches out of the picture. 

As he proposes in his article, Bowman hopes that the Court will fashion “a rule that permits legislatures and their administrative sentencing commission surrogates to create fact-driven guidelines with a moderately presumptive effect allow[ing] the legislature to influence sentencing through rule making and the executive to influence sentencing through presentation of evidence but giv[ing] proper scope to the exercise of judicial intelligence and authority.” 

McGuinness on Medellín v. Texas

After outlining the complicated (convoluted?) procedural background (see our Medellín “Case Summary In-Depth” available here), Professor McGuinness turned her attention toward the attitudes of individual SCOTUS members toward the authority of international law.  McGuinness predicted that Justice Kennedy’s “cosmopolitan internationalism” could contribute to a decision in upholding Medellín’s right to a habeas hearing per the International Criminal Court’s ruling, and contrary to Texas’s procedural defaults.  Professor McGuinness also predicted that, if the Court rules for Medellin, the Court nevertheless will reassert its judicial authority to “say what the law is” as a counter to the President’s memorandum.   McGuinness also critiqued the issue in Medellín as one of American “death penalty exceptionalism.”

For much more on Medellín and things related,  see the “Medellín chain” on OpinioJuris.org.

Reuben on Election Cases (Washington State Grange v. Washington State Republican Party, New York Brd. of Elections v. Torres, and Crawford v. Marion County Election Brd.)

First, Professor Reuben outlined the recent case history leading up to Washington State Grange and Torres.  Both cases present “access to the ballot” issues that, under prior SCOTUS holdings informed by 1st Amendment “freedom of association” doctrine, likely would hold the challenged statutes invalid.

Second, Professor Reuben outlined the procedural (and political) background leading up to the Court’s granting cert. for Crawford (Indiana’s Voter ID case).  Reuben noted Judge Posner’s 7th Circuit Opinion’s  eschewing of a “strict standard” in favor of a “balancing test.”  While employment of a balancing test validates the Indiana statute, a strict scruitiny test could yield different results (e.g. the statute invalid due to an ”undue burden” on the right to vote).  Professor Reuben further noted that Indiana’s voter ID statute is the most stringent, and that states seeking to amend or implement their own statutes will look to the Court’s ruling in fashioning the stringency of their ID statutes’ requirements.

For more, see our previous post on voter ID statutes, and for all things election law, see the aptly-named Election Law Blog.

Particularly of note with regard to the current debate over voter ID provisions is McDonald’s identification and debunking of Myth #1: Voter apathy resulting in low election-day turnout has worsened over the last fifty years. Not so, says McDonald.

This is the mother of all turnout myths. There may be plenty of apathetic voters out there, but the idea that ever fewer Americans are showing up at the polls should be put to rest. What’s really happening is that the number of people not eligible to vote is rising — making it seem as though turnout is dropping.Those who bemoan a decline in American civic society point to the drop in turnout from 55.2 percent in 1972, when 18-year-olds were granted the right to vote, to the low point of 48.9 percent in 1996. But that’s looking at the total voting-age population, which includes lots of people who aren’t eligible to vote — namely, noncitizens and convicted felons. These ineligible populations have increased dramatically over the past three decades, from about 2 percent of the voting-age population in 1972 to 10 percent today.

When you take them out of the equation, the post-1972 “decline” vanishes. Turnout rates among those eligible to vote have averaged 55.3 percent in presidential elections and 39.4 percent in midterm elections for the past three decades. There has been variation, of course, with turnout as low as 51.7 percent in 1996 and rebounding to 60.3 percent by 2004. Turnout in the most recent election, in fact, is on a par with the low-60 percent turnout rates of the 1950s and ’60s.

So, how does this bit of empirical research with regard to voter apathy and turnout apply? Well, several of the recent court decisions over voter ID laws have couched themselves in terms of a balancing act between broad voter apathy due to the perception of fraud on the one hand, and the fundamental right of eligible individuals to vote on the other. Take for instance the Missouri Supreme Court’s recent decision striking down the state’s voter ID law:

While the State does have an interest in combating those perceptions, where the fundamental rights of Missouri citizens are at stake, more than mere perception is required for their abridgement. Perceptions are malleable. While it is agreed here that the State’s concern about the perception of fraud is real, if this Court were to approve the placement of severe restrictions on Missourians’ fundamental rights owing to the mere perception of a problem in this instance, then the tactic of shaping public misperception could be used in the future as a mechanism for further burdening the right to vote or other fundamental rights.

The U.S. Supreme Court’s recent decision reversing an injuction against Arizona’s voter ID law also describes such a balancing act:

Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. … Countering the State’s compelling interest in preventing voter fraud is the plaintiffs’ strong interest in exercising the ‘fundamental political right’ to vote. … Although the likely effects of Proposition 200 are much debated, the possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.

But is it proper to couch the terms of the voter ID debate as a balancing act between the interest of preventing broad apathy vs. the fundamental right of the individual to vote? As the article in Slate by Rick Hasen linked to by Ben points out, empirical evidence of voter impersonation at the polls is negligible to nil. Meanwhile, as McDonald points out, levels of voter apathy have remained more or less constant when adjusted for changes in voter eligibility. Theoretically, there may be large groups of people who don’t bother to vote due to the perception of fraud via voter impersonation. However, the empirical evidence establishes neither the perception of such a particular fraud, nor such a particular fraud itself.

The narrative resulting from the terms the courts have adopted in the voter ID debate may be the biggest myth of them all.

Election Deform: The Supreme Court messes up election law. Again.