Today’s Must Read

It’s pretty fitting that one day after one of the biggest events this campaign season, the New Hampshire primaries, the Supreme Court will be hearing arguments on a case that could significantly affect the 2008 election: the fight over Indiana’s voter ID law.

The issues behind Crawford v. Marion County Election Board are pretty simple to understand. The Indiana law, passed by Republicans, prevents citizens from voting without a picture ID, and they say it will stop voter fraud, though they can’t point to a single instance of criminal voter impersonation occurring in the state. It is a solution in search of a problem.

Or rather, it’s a solution to a very different problem. In this issue of New Yorker, Jeffrey Toobin writes that the voter ID laws, which Republicans have pushed in states throughout the country, are a reminder that, though racism has disappeared from mainstream political discourse, “racial discrimination itself” has not been banished from politics:

“Let’s not beat around the bush,” Terence T. Evans, the dissenting Court of Appeals judge in the Indiana case, slyly wrote. “The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.” He’s not the only one to notice: the three federal judges who approved the Indiana law were appointed by a Republican President; the lone dissenter was appointed by a Democrat. It was also Republican-dominated legislatures that produced the Indiana and Georgia laws, both of which were signed by Republican governors.

Who are the “certain folks,” in Judge Evans’s delicate phrase, that the Indiana law is trying to discourage? The best answer can be found in a friend-of-the-court brief in the case filed by twenty-nine leading historians and scholars of voting rights. They concluded that the Indiana law belongs to a malign tradition in “this nation’s history of disfranchising people of color and poor whites under the banner of ‘reform.’ ” Such measures as the poll tax and literacy tests, they write, were “billed as anti-fraud or anti-corruption devices; yet through detailed provisions within them, they produced a discriminatory effect (often intended) within the particular historical context.” So it will be in Indiana, where the law creates a series of onerous barriers to voting.

And don’t forget that the United States government, by way of the Justice Department, has weighed in to support the Republican side of the argument. As election law expert Rick Hasen has pointed out, the fight over voter ID laws has been strictly partisan — Republicans push and support the laws, Republican-appointed judges uphold them, and recently Republican secretaries of state have written amicus briefs in support of Indiana’s law. So the Bush Administration’s decision shouldn’t surprise.

The court will deliver a decision by late June, in time to affect the November elections. As for what’s likely to happen Wednesday, Toobin himself is not optimistic about the outcome of the arguments:

As a general matter, in recent years the Court has been reluctant to find what is charged in this case: a violation of the constitutional guarantee of equal protection of the laws. (The notable exception, to belabor the issue, was for a plaintiff named George W. Bush.) In the end, though, it will not be the judiciary that rescues democracy; whatever the obstacles, the problems with the ballot box must be solved at the ballot box. In the end, though, it will not be the judiciary that rescues democracy; whatever the obstacles, the problems with the ballot box must be solved at the ballot box.

Note: Here’s The New York Times’ rundown of the case.