Marty nicely describes the paucity of evidence supporting Indiana’s claim in Crawford v. Marion County Election Board that voter fraud is rampant in Hoosier land. After all, the Court long ago held in Croson that Richmond could not rely on experiences eslewhere to defend it’s affirmative action policies. Well, if evidence of race discrimination in the capital of the Confederacy was too uncertain to count unless backed up with local studies, then why should Indiana be able to rely on the lone phony voter in Washington state to save it preferred policy from constitutional challenge?
Fair enough. But consider the other side: just how much evidence did the plaintiffs have to show that the new law would disenfranchise lots of folks? After all, the district court found that 99 percent of Indiana voters already staisfty the new standard and that there is good reason to think that the 1 percent who may not now, easily can. That could be wrong, of course, but the paucity of evidence on both sides here does suggest the reason for the Court’s reluctance to decide this facially. Of course, ignorance is not always an excuse. A poll tax is hard to describe as anything other than a burden on the right to vote, no matter if there is evidence of just how many poor people it would block from going to the polls. But an identification requirement is a burden only if in practice it actually operates that way. So, one would think there would need to be a pretty substantial showing first to support a facial attack.
Plus: it’s not clear that the politics of this ruling are as bad as Jack or Marty indicates. Here, the state has on its side election monitor extraordinairre - President Carter – who chaired a presidential commission on election reform that seemed to approve of voter ID requirements as being legitimate. As Carter no doubt reasoned, it may well be much easier politically to pass real reforms to make registration easier – which could substantilly increase voting by the now disenfranchised – if strict anti-ftraud measures are also in place. I’d be hesitant to see this case, therefore, as a bad development for those that want to increase the voting ranks. It may instead be a precondition for freeing new possibilities in election reform that could, on net, lead to greater enfranchisement. In other words, if you ensure voters are who they say they are, we’ll let you register more of them. Don’t we want a Constitution that would facilitate such a trade?