Voter ID in the Supreme Court: Postgame Analysis.

The Supreme Court heard argument last week in Crawford v. Marion County Election Board, the case challenging Indiana's voter ID law. Dahlia Lithwick has a devastating critique of the argument in Slate. Also, she and Slate editor Emily Bazelon dish on the case in this video:


According to Lithwick the Court won't release the audio of the oral argument. You can find the transcript here.

The case wasn't terribly well litigated on either side. On the plaintiff's side, they launched a facial challenge to a law that probably can only be challenged in the best circumstances as applied.

OK, let me translate that. A facial challenge argues that a law is so patently unconstitutional that we don't need to wait for in instance in which someone is harmed. A plaintiff can raise a facial challenge by arguing that in every conceivable scenario a law violates the Constitution. For example, a law saying only native-born citizens can vote would be facially discriminatory.

When a plaintiff challenges a law as applied, he or she waits for a case to arise in which a person suffers some detriment, then litigates that case, arguing among other things that the law was applied in an unconstitutional manner. The infamous Kelo case would be an example. States have had eminent domain laws for as long as they have been states. The Kelo plaintiffs weren't arguing that state eminent domain is unconstitutional per se, only that in that case when the state used eminent domain to acquire property for a private developer.

The plaintiffs in this case were arguing basically that 1) the law burdens a fundamental right (traditionally a no-no, but this is the Roberts court, so "meh" on that sort of tradition) and 2) that the state has no reasonable basis for imposing that burden. This last is the rub and has been the main focus of Democratic arguments against the laws. Republicans have tried without success to demonstrate the need for such laws and now fall back to arguing that maybe there is voter fraud, so why not prevent it.

This has all been pretty frustrating to watch. We know that some people are going to lose the right to vote because of ID laws. Even if the scenario is a working single mom with exactly thirty minutes in the day's schedule gets to the front of the line, realizes she doesn't have her ID and doesn't have time to get it and come back, it's a loss of a vote. No one is going to die because of it, but we have burdened one of the most fundamental rights of citizenship to prevent something that apparently doesn't exist.

As bad as all that is, Lithwick argues that the Court may use this case to severely limit facial challenges or eliminate them altogether. If that happens, it will be a serious blow to the ability of citizens to guard liberty through the courts. And few non-lawyers will realize it has happened.

UPDATED: The intro sentence got left off the original post. Also I added a couple of links and corrected a couple of typos.