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Outcomes and Rationalization in Voter ID PDF  | Print |  Email
By Bob Bauer   
January 10, 2008
This article was posted on Bob Bauer's blog and isreposted here with permission of the author.

Two observations, one framed as a concern, have pushed through to the surface after the Court’s argument in the voter ID case.  One is that the Court may find its way out by specifying that any answers lie in as-applied challenges.  This is the concern.  Another is that the Court stayed away from acknowledging the partisan dimensions of the conflict over ID in Indiana.  This has been expressed more as an observation, though it could well qualify as a concern.

On as applied challenges:  this is not the best outcome, nor—all things considered—would it be the worst.  Paul Smith at argument said it would lead to a “morass.”  Oral Argument Transcript at 65.  Rick Hasen fears that it could contribute mightily to the spreading volume of election law litigation.

Smith and Hasen are each right, seen from one angle; but from another, if this is all we can hope for, than it might well be just the shock that legislatures deserve.  In time, legislators might be encouraged to write laws less vulnerable to being picked apart on an as-applied basis.  At any rate, having abdicated their responsibility to write these laws responsibly, on a reasonably neutral basis, they would face the embarrassment, cost and disruption of judicial second-guessing.  They might come to do better, particularly if there is editorial and public outcry forcing them to the effort.

On the steadfast refusal to see the “partisan elephant in the room,” this did not help to improve the quality of the argument or the questioning, and it will not shape the final opinion for the better.  When a blind eye must be turned to the sharpest point of conflict , the argument is worn down by a certain evasiveness at the core.  The most said about parties directly concerned standing.  Then there was mention of their role in aiding voters to obtain their ID if one is required.  Reference to partisan struggle was fleeting, little developed in an exchange between Justice Stevens and Paul Clement.  

Lyle Denniston, writing for Scotusblog about the partisan elephant, notes that:
The abiding question at the end:  can a decision be written that does not itself sound like a political, rather than a judicial, tract?  Can the Court, in short, avoid at least the appearance of another Bush v. Gore?
This appearance will be much harder to avoid if the Court decides the case without coming to terms in some fashion with the fact of partisan conflict.  To pretend that this conflict is beneath notice and of no consequence is sure to raise suspicions about what the Court majority is really up to.

Not that it is easy or comfortable to confront the question directly.  At least the dissent in Crawford was forthright enough to try, apparently to no avail.
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