Under the U.S. Supreme Court: Will voter ID laws cost Obama the election?

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent
Under the U.S. Supreme Court: Will voter ID laws cost Obama the election?
U.S. Attorney General Eric Holder speaks at an event highlighting the need to reauthorize the Violence Against Women Act in the Eisenhower Executive Office Building in Washington, D.C. on April 18, 2012. -- UPI/Kevin Dietsch | License Photo

WASHINGTON, July 22 (UPI) -- With polls showing President Obama and Mitt Romney locked in a desperately close race for the presidency, will voter identification laws suppress the Democratic vote and cost Obama the election, or will they simply cut down on voter fraud as Republicans contend?

What effect, if any, will the court challenges to state voter ID laws have on the laws' impact, given the short window before the November balloting. What will the U.S. Supreme Court do and how quickly? By law the high court has to hear the appeals of the challenges.


U.S. Attorney General Eric Holder laid down the gauntlet for the administration in his speech to the NAACP annual convention in Houston July 10.

"As many of you know, yesterday was the first day of trial in a case that the state of Texas filed against the Justice Department, under Section 5 of the Voting Rights Act, seeking approval of its proposed voter ID law. After close review, the department found that this law would be harmful to minority voters -- and we rejected its implementation.

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"Under the proposed law, concealed handgun licenses would be acceptable forms of photo ID -- but student IDs would not," Holder said. "Many of those without IDs would have to travel great distances to get them -- and some would struggle to pay for the documents they might need to obtain them."


Holder said some recent studies show only 8 percent of white voting age citizens nationally lack a government-issued ID, while 25 percent of African-American voting age citizens lack one.

"But let me be clear: We will not allow political pretexts to disenfranchise American citizens of their most precious right," Holder said.

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The Texas challenge trial ended in a Washington courtroom earlier this month. Under the Voting Rights Act, the Lone Star State and and 15 other states, mostly in the South, must receive approval from the U.S. attorney general or a Washington federal court for changes in voting procedures because of past discrimination.

The three-judge panel in the Washington court is expected to rule next month -- early enough for Texas to implement the law for the November election should the state win its case, The Houston Chronicle reported. But any verdict by the panel would probably be appealed directly to the U.S. Supreme Court, which could issue a stay with the votes of five of the nine justices.

Given the skepticism expressed by the Washington judges -- challengers said some voters, particularly Hispanic, would have to travel 100 miles to get their government-issued IDs, even if they're free -- Texas' chances in the Washington court aren't good. But given the five-justice conservative majority in the U.S. Supreme Court, the state's chances before the high court are somewhat better.

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The Supreme Court could combine the Texas case with another involving a South Carolina law similar to the Texas photo ID law, which is scheduled to be heard before a three-judge court in Washington next month. Or the justices could put the South Carolina case on hold until the Texas case is decided.

Across the country, 11 states have enacted voter ID laws driven by Republican-led initiatives, and 20 or so others are considering them.

An editorial in the Los Angeles Times this month, like Holder, scoffs at Republican claims the laws are designed to prevent voter fraud.

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"Twelve years after disputes about hanging chads and butterfly ballots [in Bush vs. Gore] cast doubt on the credibility of the outcome of a presidential election," the editorial said, "the integrity of the election process again has become a partisan issue. If the race between President Obama and Mitt Romney is a close one, look for the losing side to blame the outcome on either fraud or voter suppression. At this point the latter looks to be the bigger problem."

The editorial goes on to say: "The question, however, is whether that sort of fraud is widespread enough to justify imposing a requirement that could disenfranchise a significant number of qualified voters. That case has not been made, and the evidence is overwhelming that recent photo ID laws -- and other legislation likely to reduce turnout -- are politically motivated."


The editorial says, "In an embarrassing display of candor, the Republican leader of Pennsylvania's House, in rattling off a series of legislative accomplishments, said, 'Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania -- done!'"

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Hey wait a minute, the liberal-leaning The New Republic says.

Writing under the headline "Will Voter ID Laws Cost Obama Re-election?" writer Nate Cohn says 9.2 percent of registered voters in Pennsylvania "lack photo identification, including 18 percent of registered voters in heavily Democratic Philadelphia. But these flashy numbers might be misleading. If voter ID laws have consequences for voter turnout, they're difficult to detect."

Studies after the 2006 midterm elections indicated a slight link between voter ID laws and lower turnout, but even given the minority push for Obama in 2008, "The final [opinion] polls [in voter ID states Georgia and Indiana] were dead-on. If voters were turned away at the polls," Cohn says in the magazine, "it wasn't enough to sway the results. Potential voters might have been dissuaded due to their lack of identification, but since the polls were accurate, they must not have been included in polls of likely voters. For that same reason, the pre-election polls should remain accurate in 2012."

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To add to the confusion, there's no real U.S. Supreme Court precedent to rely on.

In 2008's Crawford vs. Marion County, the justices by a vote of 6-3 approved Indiana's voter ID law, brushing aside Democratic challenges.

But the prevailing opinion was written by liberal Justice John Paul Stevens, and only two other members of the court, conservatives Chief Justice John Roberts and Justice Anthony Kennedy, joined it.

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Stevens said Indiana has a legitimate interest in protecting the integrity of its elections, and protecting the public's confidence in elections. Stevens dismissed concerns that majority Republicans in the Legislature were trying to suppress the Democratic vote -- their motive didn't matter.

"While the record contains no evidence that the fraud [the voter ID law] addresses -- in-person voter impersonation at polling places -- has actually occurred in Indiana," Stevens conceded, "such fraud has occurred in other parts of the country, and Indiana's own experience with voter fraud in a 2003 mayoral primary demonstrates a real risk that voter fraud could affect a close election's outcome."

Stevens said, "Because Indiana's [photo ID] cards are free, the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents and posing for a photograph does not qualify as a substantial burden on most voters' right to vote, or represent a significant increase over the usual burdens of voting."


Three conservative court members, Justices Antonin Scalia, Clarence Thomas and Samuel Alito, joined in the judgment but not in Stevens' opinion. In a separate opinion, they said Indiana's voter ID law should be upheld because its overall burden is minimal and justified.

Three liberal justices dissented. Justice David Souter, joined by Justice Ruth Bader Ginsburg, said the Indiana voter ID law "threatens to impose non-trivial burdens on the voting right of tens of thousands of the state's citizens ... and a significant percentage of those individuals are likely to be deterred from voting."

He added Indiana officials "fail to justify the practical limitations placed on the right to vote, and the law imposes an unreasonable and irrelevant burden on voters who are poor and old."

Dissenting separately, Justice Stephen Breyer said, "I believe the statute is unconstitutional because it imposes a disproportionate burden upon those eligible voters who lack a driver's license or other statutorily valid form of photo ID."

How the justices would vote when they hear the challenge to the Texas voter ID law is uncertain. Stevens and Souter have retired -- replaced by fellow liberals, Justices Sonia Sotomayor, a Hispanic, and Elena Kagan.


The contours of the Texas case are significantly different from the Indiana case, with evidence introduced at trial of significant burdens for rural Hispanics.

However, if the court rules along its 5-4 ideological fault line -- if some liberal or some conservative doesn't break ranks -- the decision might be thrown onto the brush pile of political rulings that continue to diminish the Supreme Court's reputation.

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