Lovely titling. Took me a minute, but I'm slow.

I am aggrieved.

Nevertheless, I share with you: Slate video on this topic (since we all want to see Dahlia Lithwick [predacted]).

Good racket:
You pass a law disenfranchising your opponents' voters and win the next election. The law is then challenged and invalidated, but since you still control the government, you pass another law disenfranchising your opponents' voters and win the next election. The law is then challenged and invalidated, but since you still control the government, you pass another law disenfranchising your opponents' voters and win the next election. Etc.

I think the Republicans think of it as sound social policy setting up more incentives to work hard so as not to be poor, black, or old. It could work.

Honestly, if a law were passed that said, "Registered Democrats past and present will not be allowed to vote," would Scalia make people wait to sue until they were actually denied a vote?

See also Bean and Lemieux.

Hmm, let's see. The boyfriend had to pay a couple hundred bucks for an expedited passport renewal in order to come to DC with me, because he doesn't drive and has no fucking clue where his birth certificate is to get a state i.d. The poor, marginalized, indigent man. Good thing he doesn't live in Indiana.

I wish I hadn't read this.

3: Also, Gonzalez et al inserted political flunkies into the professional justice staff, not just the political appointees, so unless they're rooted out (which is difficult to do to professional staff), they'll stay in office forever. (Modt are underqualified ideologues, so where would they go?)

I hope that the Democrats are planning for this: First, get the incompetents and hacks out of there, and only next do what you can to make sure that it never happens again.

I am willing to bet anything that once a Democratic administration takes over, Sen. Spector will immediately leap into action to make sure that the new administration doesn't interfere with professional staff in Justice. He's very high-minded and devoted to the law, you know.

Can one of you ConLaw types explain to me why such laws are not subject to strict scrutiny (i.e. the state must show not only that it is pursuing a legitimate purpose, but that there is no alternative approach that would serve the same interest with less disparate impact on protected groups)? Is it because the franchise is not an enumerated constitutional right? Didn't Bush v. Gore discover such a right in the Equal Protection Clause of the 14th Amendment?

I can't figure out why this law isn't unconstitutional on its face, but apparently a majority of the SCOTUS thinks otherwise.

I bet you one imaginary dollar that if a group tries to help poor voters by paying the cost of photo IDs for them so they can vote and have identification for other purposes (instead of having to go to the courthouse for a waiver each time), they're shut down for illegally bribing people to vote.

You know, I thought it was really beyond the pale when Pat Robertson was urging his winged monkeys to pray for the deaths of Supreme Court justices, but I'm getting more sympathetic to that view every day.

I don't even think it's got to be just poor voters. How many middle-class New Yorkers don't have drivers' licenses or current passports? Probably tons.

Philosophically, many conservatives believe in a limited franchise. (George Will quite explicitly, though no link). The Republicans are doing it surreptitiously and piecemeal and justifying it with various pretexts, but they know what they're doign and they think it's wonderful.

The first time I voted in NY, I moved to show ID to the poll worker and she screamed and informed me to "PUT THAT AWAY!"
(ogged may not like that, but he's surely used to it by now.)

Emerson, do you have a drivers' license?

somewhat related: http://ronrox.com/paulstats.php?party=DEMOCRATS

not sure how solid those numbers are, but it's pretty interesting if they are. Not sure what confounding factors are present.

Republicans: Limiting franchise through Big Government.

Doesn't matching your signature count as ID? I still remember being a kid and looking at my dad sign his name under his signatures for the last dozen years. I don't show ID, but there's a printout of my signature and I sign under it. Presumably if it didn't match pretty well, someone would kick up a fuss.

As much as I believe in expanding the franchise, if this BS goes through, I think Dems have no choice but to fight fire with fire in the states where they control the legislative machinery. Step one: absentee ballots (which tend to favor Republicans) have to be delivered in person to the courthouse during business hours upon presentation of a photo ID.

Even better: Require them to be submitted in person to special "absentee ballot acceptance centers", one per state, to be located in the bleakest ghetto available.

How many middle-class New Yorkers don't have drivers' licenses or current passports? Probably tons.

Probably not, I jumped through the hoops to get my state ID at 17 even though I probably won't know how to drive for a while because it's handy. And because Chicago is quite, quite hardcore on the "no one allowed in bars without an ID" count. I'm amazed your boyfriend gets by so easily, unless the Twin Cities actually allow common sense exemption for "If the person's obviously over 30, just let it go."

20- The irony is that absentee ballot fraud is far more prevalent than voter impersonation fraud.

I have a driver's license and am an OK driver, though I don't like to drive.

SP is apparently correct. At least NPR reported that some study was done (by Republicans and Democrats) which found that voter impersonation fraud is a total non-issue.

Require them to be submitted in person to special "absentee ballot acceptance centers", one per state, to be located in the bleakest ghetto available.

Excellent. After all, if you want to vote, you should be at least as dedicated as women who want abortions.

21: Probably common sense. Also he has an expired passport, which isn't *legal* legal i.d., I guess, but obviously works most of the time.

Presumably if it didn't match pretty well, someone would kick up a fuss.

I still had a cramped little junior high-style signature when I first registered to vote; I have to approximate that every time I vote. One time I forgot, and the woman gently suggested I try again.

Now I know the people at the polling place, and it matters less. But still.

25 to 21 continued: Anyway, the point is that there's one random example of someone we actually know who'd be disenfranchised under this rule; I'll be there are a lot more people like that than you realize.

10-you don't even get to ask the scrutiny question if you don't have standing, so this no-facial-challenges bullshit is a way to avoid that.

If there were standing, whether or not strict scrutiny (or something like it) would apply probably would depend on whether voting was a fundamental right. Bush v. Gore depended on an equal protection right to have your ballot counted equally w/ other ballots, but not to cast one in the first place. It certainly should apply, and no way this law would survive it under any honest application.

At least NPR reported that some study was done (by Republicans and Democrats) which found that voter impersonation fraud is a total non-issue.

The story behind this study will make your blood boil even hotter [physics pedants: save it]. When the study didn't reach the intended result, the administration first tried to browbeat the authors into downplaying their conclusions, and when the revised draft was still too contrary to their purposes, they simply squelched it. Until someone (Waxman?) made them cough it up. Marshall has been great on this story.

you don't even get to ask the scrutiny question if you don't have standing, so this no-facial-challenges bullshit is a way to avoid that

Yes, but reading Lithwick's summary of the oral arguments, it sounds like five justices are willing to uphold the law even given the assumption of standing, on the grounds that it poses no undue burden and it serves a rational purpose. It just defies belief that they would apply a stricter standard to, say, access to public accomodations than they do to the franchise.

The thing I'll never understand about Dem unwillingness to seize A) the initiative and B) the high ground is their failure to propose constitutional amendments guaranteeing Voting and Privacy Rights.

The first one is a no-brainer, and would be a pretty good defining issue - how could anyone oppose? The second one, of course, would get heated, but since our side would have the "right to buy condoms, right to a blowjob, right to not have your phone tapped" side of the argument, I'd be willing to concede the "continued right to an abortion" side.

I remember having ID waved away by the elderly poll ladies when I voted last year.

right to a blowjob

"This is America, ma'am. I know my rights."

10: why such laws are not subject to strict scrutiny

I'm pretty sure I don't qualify as a "con law type," but here's my hazy memory of voting rights. The Equal Protection point is hazy: usually for race-based discrimination you have to show intent to discriminate, of course, but you're right to identify voting as a fundamental right, which is a different kind of analysis. When Justice Marshall tried to make this point (Mobile v. Bolden, I think) it was in a solo dissent. The infringement on voting was less clear there, I think it was an at-large / district dispute, but nobody else on the Court was interested even in 1980.

Why not, I don't know. Most of the voting-rights litigation from the last half century has been about dilution of the vote instead of outright denial of the franchise, so it may just be that the court has gotten into the habit of thinking about people who get to vote but then complain about gerrymanders when they lose (but not when they win b/c of gerrymanders, of course). In that framework, if the law isn't explicitly racist, it's basically ok as far as the court is concerned. It does seem like that analysis makes less sense now that we're actually preventing people from voting, but hey, what do I know. Maybe a provisional ballot isn't really a non-vote?

Here's an easy way to tell whether someone talking about election procedures and election law is a GOP hack: If he repeatedly uses the phrase "unlawful voter registrations", he is a hack. This little turn of phrase is a favorite rhetorical ploy of the voter fraud fraudsters. It imputes nefarious intent to a broad class of irregularities (e.g. a voter remains on the books after moving away or dying) that are routine and almost always harmless.

usually for race-based discrimination you have to show intent to discriminate

Huh? What about "disparate impact"? Isn't the burden of proof on the defendant when civil rights are implicated and there is a demonstrable disparate impact on a protected group? Isn't that the whole point of the "rational basis test" and all that?

IANAL, so what the hell do I know, but I sure will be despondent if that's not the case.

30, hmm, that wasn't my take from a quick read of the transcript, but it may well be right (or, I'm sure it is right that 5 Justices would find a way to let the law stand even if they reached the merits, only that I didn't see anyone but Alito, and maybe Roberts, tip his hand to this).

I guess the answer would have to be that strict scrutiny is only as strict as those applying it decline to be credulous of the legislature's findings. I.e., if impersonation fraud were a real threat, that'd be a legitimate gov't interest, and this law might in fact be a narrowly tailored response to it. Of course, it's not a real threat, but I imagine the Court could choose to defer to that finding while still calling what it was doing 'strict scrutiny'. (Also, the question whether the franchise right is fundamental, but I think even this court would try to avoid having to explicitly say that it isn't.)

On the voting/scrutiny debate, from Reynolds v. Sims:

Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. Almost a century ago, in Yick Wo v. Hopkins, 118 U.S. 356, the Court referred to "the political franchise of voting" as "a fundamental political right, because preservative of all rights.

States place all sorts of restrictions on the exercise of the franchise. If a law were to deny the franchise to certain person, e.g. felons, then that would get strict scrutiny (and pass it, amazingly enough). I think the Court is saying that until you show us someone to whom the franchise has been denied, we're not going to apply strict scrutiny. But, like MYB, my memory of this subject is hazy.

I'd be willing to concede the "continued right to an abortion" side.

I don't have to say it, do I?

35: Exactly. Even in the very,very few cases where there has been fire with the smoke it has been things like ACORN workers signing up fake people because they were paid by the registration. It is in fact a "possible" entry point to subsequent actual voter fraud, but only if someone turned up to vote against those registrations, and the facts in those few cases indicated anything but. Pathetic.

And it was exactly the willingness or not to pursue these kind of BS cases that got you got off or on Gonzo's firing list. It is so demented and sad.

My friend from Indiana knows someone with the same name as his dad. He knows his dad doesn't vote, so he votes at his own precinct and then goes to his dad's. Same name, so the ID checks out no problem.

I'd have to recheck this, but isn't disparate impact a way of proving statutory discrimination?

I don't have to say it, do I?

I think you're misreading JRoth's comment.

Adding on to 43, I took JRoth to mean that he'd be ok with having the more difficult part of the argument there since he'd have such strong arguments elsewhere.

36, be despondent. Disparate impact by and large doesn't itself support a constitutional claim. There are certain important contexts in which disparate impact states a statutory civil rights claim, but as soon as the defendant comes up with a fig-leaf explanation, the burden goes back to the plaintiff to prove intent.

36: Huh? What about "disparate impact"?

Uh, no. Washington v. Davis says that to make out an equal protection claim based on racial discrimination, you have to show discriminatory intent. "[an] official action will not be held unconstitutional solely because it results in a racially disproportionate impact."

I lifted that quote from the Wikipedia article about Davis, but I lack the html-fu to provide a link directly in a non-ugly way. It's the first hit if you google for the name of the case.

Sorry about the despondency--I agree that voter-ID laws are 100% crap and should be struck down (see above on fundamental rights), but I'm not sure the rule of Davis is wrong. Disparate impact is everywhere, and the world would be a really messy place if every instance of it was a constitutional violation.

Happens all the time.

Oh, and the other reason to strike these down is that the court's distinction (in Shaw v. Reno in case anybody's keeping score) between explicitly racist vote dilution/denial and the kind that's nominally political but just happens to operate by disenfranchising the black/brown people is stupid. There's good evidence of intent to keep black people from voting, and I don't really care that their salient feature is political party instead of race. It amounts to the same thing.

43: Well then it's a good thing I didn't say it, isn't it?

Wait, I thought Shaw v. Reno stood for some other really weird proposition about how states can't take race into account when drawing district lines as part of a plan to increase the power of minority votes.

Can some legal type tell me how the Alito argument here differs from the argument in the Nebraska abortion case? In both cases, the Roberts court seems to think that a law is constitutional if it only adversely affects a few people, right? Would you say that the common thread is a complete lack of regard for minority rights?

My memory of the holding in Shaw is "go ahead and keep on doing the same gerrymanders you've been doing. But when you get challenged about it, don't say you're drawing the lines based on race, say you're drawing them based on politics."

Nobody can tell the difference, see, but there's something nicer about calling it a political gerrymander instead of a racial one. For some reason my voting rights prof thought this argument had some merit, that it was better to pretend to be civil even when what you're doing is actually racist. I never understood it.

And whether it was about increasing minority vote strength or decreasing it I really don't remember.

14: Philosophically, many conservatives believe in a limited franchise. ..... The Republicans are doing it surreptitiously and piecemeal ... but they know what they're doing and they think it's wonderful.

And it dovetails in an interesting way with all of the "bipartisanship" crap—which then just turns into the unified interests of the enfranchised against the truly disenfranchised. Gosh, who wins that one?

W/d is right for Shaw v. Reno, MYB has it backwards. They disallowed a gerrymandered district that was supposed to avoid diluting minority voting power because it was just so obvious that people were thinking about race while designing it, and having to vote in a district that had been designed by people thinking about race would damage white people's preciously sensitive psyches. Also notable for the implicit holding that "All that jazz about standing doesn't apply for white folks objecting to something they perceive as unfairly advantaging minorities. You always have standing."

Even if there was an explicit right to privacy in the constitution, couldn't some future court interpret it not to include abortion?

I do think that an amendment to make the right to privacy explicit would be a good idea, but my worry is that the Supreme Court has declared that the right to privacy is already in the constitution -- and if the amendment failed, it might undercut that.

The law is what Bush's friends want it to be. This will be true for several decades. It seems to me that it is time to demonize judges. It wouldn't be hard to make a movie about a horrible old judge. You'd just have to be careful to be sure that it didn't inadvertently resemble some actual horrible old judge too much, an a way that could be judged slanderous (by some other horrible old judge).

56: We can still redo the second and third Golden Compass books so that the hideous world-enslaving conspiracy is the Federalist Society instead of whatever it was in the first one.

Because of this thread I've decided to just start reading law review articles on Shaw, starting with John Hart Ely, Standing and Pro-Minority Gerrymanders. It's looking like a productive day.

I looked through the transcript - if you search on Scalia and read his parts sequentially it makes quite the impression. In fact it made me quite nostalgic for the halcyon days when a kinder, gentler Associate Justice Scalia was willing to proactively intercede on behalf of people who feared the consequences of future events during elections:

The counting of votes that are of questionable legality does in my view threaten irreparable harm to [George W. Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.