That certainly was the tenor of the Retrograde Five during oral arguments last month.
Under Indiana law, voters without photo IDs can cast a provisional ballot. However, the vote is counted only if voters go to the county seat within 10 days to show a photo ID.
Chief Justice Roberts, in effect, asked during oral argument what’s the big deal? “County seats aren’t very far for people in Indiana,” he said.
Yeah, but they are far for some voters. For instance, if you don’t have a car, it’s a 17-mile bus ride to the Lake County seat from Gary, Ind. Whether by car or bus, for most voters it is not worth the bother and expense.
The Supreme Court in 1966 struck down Virginia’s poll tax, a Jim Crow measure designed to keep blacks from voting. Justice William O. Douglas, writing the majority opinion, said it was an unconstitutional violation of the Equal Protection Clause of the 14th Amendment. A state cannot make “payment of any fee an election standard,” he wrote.
The decision came down in the halcyon days of the great and liberal Warren Court. Now the reactionary Roberts Court seems to think that photo ID is a peachy idea.
Voter ID is an unconstitutional economic standard. Yet the sad truth is that most Republicans favor such laws, laws aimed at keeping Democrats from the polls.
And it is not a case of a just a few people denied the franchise. Estimates are that between 13 million and 22 million Americans of voting age do not have driver’s licenses, passports or birth certificates to prove their identities. Sometimes it is difficult to obtain birth certificates and can cost as much as $70.
Yet Republican Judge Richard Posner, writing for the 7th U.S. Court of Appeals in Chicago that upheld the Indiana law, said it was such a small burden to get a photo ID.
Untrue. Posner sees the matter from the perspective of too many federal judges: upper class, well-off and conservative. In dissent, appeals Judge Terry Evans had it right: “Let’s not beat around the bush. The Indiana voter photo ID law is a not too thinly veiled attempt” to keep Democrats from the polls.
GOP backers of the measure insist that voter fraud is a problem. It is not. No prosecution for impersonating a registered voter has ever been brought in Indiana.
Yet the Bush administration, always political and often disingenuous about its real ideological motives, is making the issue a Justice Department priority. And note the euphemistic label: voter fraud. It’s a solution for a problem that doesn’t exist.
So the Bushies adamantly — and fatuously — declare that it is not necessary to wait for fraud to prevent it. “The state’s interest in deterring voter fraud before it happens is evident from the monumental harm that can come from such fraud,” they claim.
Monumental? Please. Besides, laws should not be made to prevent what might happen. They should deal with what has happened.
Columnist Cynthia Tucker rightly asks: “Why have leading Republicans invested so much credibility in spreading the canard of widespread election fraud? They use that fiction to push highly restrictive voter ID laws, which tend to block ballot access for poorer black and brown citizens. It’s no coincidence that those voters are also more likely to support Democrats.”
And Richard Hasen, an election law specialist at Loyola law school in Los Angeles, notes sardonically: “There’s more than a little bit of irony in going to the Supreme Court and asking it to rise above partisan politics in election cases.”
Other states, such as Georgia, have also enacted photo ID laws. But such laws are unconstitutional to impartial judges and justices. The 24th Amendment says so. The amendment is magnificently simple: it bans poll taxes and any tax to vote. Voter ID amounts to a tax.
Yet it is likely that the voter ID law will be upheld. The Supreme Court is so often retrograde. It gave the nation a fraudulent president in 2000 in its worst decision since the proslavery Dred Scott ruling of 1857.
Engraved on the façade of the Supreme Court building are the glowing words: “Equal justice under law.” But like so much inspiring rhetoric in America, it is untrue.
Jake Highton teaches journalism at the University of Nevada, Reno.