WASHINGTON — There are many ways to lose a Supreme Court case, and by the end of an argument that was before the court on Wednesday, the Democrats who were challenging Indiana’s voter-identification law appeared poised to lose theirs in a potentially sweeping way, with implications for many future election cases.
The justices’ questioning indicated that a majority did not accept the challengers’ basic argument — that voter-impersonation fraud is not a problem, so requiring voters to produce government-issued photo identification at the polls is an unconstitutional burden on the right to vote.
The tenor of the argument suggested, however, that rather than simply decide the case in favor of the state, a majority of five justices would go further and rule that the challenge to the statute, the strictest voter-identification law in the country, was improperly brought in the first place. Such a ruling could make it much more difficult to challenge any new state election regulations before they go into effect.
The Indiana Democratic Party and the American Civil Liberties Union challenged the 2005 law before it went into effect, seeking a declaration that it was unconstitutional on its face and could not be enforced even against the majority of Indiana voters who could easily produce the required photo ID. Such an approach, known as a “facial challenge,” is the standard way of attacking election regulations like the poll taxes that the Supreme Court struck down in the 1960s and more recent redistricting and ballot-access cases.
But the court under Chief Justice John G. Roberts Jr. has displayed deep skepticism toward such challenges, most notably on the subject of abortion, on the grounds that they require courts to step outside a limited role of resolving concrete disputes brought by parties with actual injuries.
“You seem to accept that a facial challenge is appropriate here,” Justice Antonin Scalia said with evident disapproval to Thomas M. Fisher, the Indiana solicitor general, who was defending a lower court’s judgment that the law was constitutional.
Indiana, in fact, had not objected to the form in which the case was brought. That argument was introduced by the Bush administration, which entered the case, Crawford v. Marion County Election Board, No. 07-21, after the Supreme Court agreed in September to hear it. In the administration’s brief, Solicitor General Paul D. Clement urged the justices to uphold “principles of judicial restraint” by rejecting the facial challenge.
Joining Mr. Fisher in arguing for the state on Wednesday, Mr. Clement said the court should wait for a case to be brought by someone who was actually barred by the statute from casting a ballot. Such a lawsuit “could focus like a laser beam” on particular problems, Mr. Clement said, adding that if such a case were successful, it would have the virtue of producing a remedy that solved the problem without invalidating the entire law.
Justice David H. Souter countered, “That would be a virtue, but one of the vices would be that it would be after the election, and the entire matter would be academic for another two years.”
Justice Ruth Bader Ginsburg raised a similar objection. “The reason they are bringing a facial challenge is because the horse is going to be out of the barn,” she said. “They will have the election, and just what they are afraid of could happen — that the result will be skewed in favor of the opposite party.”
Justice Ginsburg’s subtle but unmistakable allusion was to the partisan context in which voter identification laws, recently adopted by a handful of Republican-dominated states, are being debated. Democrats charge that the true purpose of the laws is to deter participation by some predictably Democratic voters, particularly poor people and members of minority groups who are less likely than others to have driver’s licenses or passports.
The Bush administration has raised the suspicions of Democrats by making what they call “voter fraud” a priority for Justice Department enforcement. No prosecution for impersonating a registered voter, the type of fraud that would be prevented by a photo requirement, has ever been brought, however.
“No one has been punished for this kind of fraud in living memory in this country,” Paul M. Smith, a Washington lawyer arguing for the Democrats, told the justices.
In his opinion last year upholding the Indiana law, Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit agreed with the Democratic plaintiffs that the law would fall more heavily on Democrats than on Republicans. But that did not make the statute unconstitutional, he said.
On Wednesday, discussion of the law’s justification, and of the extent of the burden it placed on voters, was inconclusive. Mr. Fisher, Indiana’s lawyer, said that because photo identification was “necessary to do so many everyday activities,” the number of those affected was “infinitesimal.” Mr. Smith said the number was more likely in the hundreds of thousands.
Under the Indiana law, voters who are turned away for lack of identification may cast provisional ballots, which are counted only if the voter travels to the county clerk’s office within 10 days to show the required identification or sign a sworn statement that he cannot afford to obtain such an identification. The plaintiffs have argued that this extra step and required travel create an unnecessary burden that other states with identification requirements do not impose; those states do not require voters to make a second trip in order to have a provisional counted.
Chief Justice Roberts, who grew up in Indiana, did not seem to find the burden excessive. “County seats aren’t very far for people in Indiana,” he said.
Mr. Smith replied that the county seat in Lake County was a 17-mile bus ride from the county’s urban center of Gary. “If you’re indigent, that’s a significant burden,” he said. The chief justice also seemed unimpressed by the absence of known voter impersonators. “It’s a type of fraud that, because it’s fraud, it’s hard to detect,” he said to Mr. Smith.
Justice Scalia interrupted the debate over the law’s impact in order to frame his argument against facial challenges.
“Why are we arguing about whether there is one-half of one percent of the electorate who may be adversely affected and as to whom it might be unconstitutional?” he asked Mr. Fisher, adding: “This court is sitting back and looking at the ceiling and saying, oh, we can envision not the case before us, but other cases. Maybe it’s one-half of one percent or maybe it’s 45 percent, who knows. But we can imagine cases in which this law could be unconstitutional, and therefore, the whole law is unconstitutional. That’s not ordinarily the way courts behave, is it?”
“I should hope not,” the Indiana solicitor general replied.
Read more in the New York Times