Another 5-4 Loss for the Constitution

From the Playboy Blog, 1/10/07


The New York Times reports today that a five-person majority of Supreme Court justices are leaning towards upholding Indiana’s requirement that all voters show government-issued photo ID at the voting booth. This is a tricky issue. Requiring voters to show a government ID might stem voter fraud to some extent, but at the same time it presents a real burden to lower-income voters, who are less likely to have IDs or the time and resources to obtain them (see this study). 

But what bothers me more than the majority’s stance on IDs is that they’re rejecting the Indiana Democratic Party and ACLU’s right to challenge the law at all. The case is a facial challenge, which means that the IDC and ACLU are opposing a restriction that they see as unconstitutional before it actually causes harm. This method has been accepted historically and, as Linda Greenhouse of the Times points out, was a key to overturning poll tax and gerrymandering laws before they actively disenfranchised voters. 
Today our conservative justices are suggesting that we wait until individuals are harmed by a given law before we address its constitutionality. They call this “judicial restraint.” If that individual’s grievances can be fixed retroactively by awarding damages, this approach is fine. But election results are permanent. If the court waits to rule on a specific voter’s case, the election will have already been stolen.

Whether Indiana’s voter ID law is constitutional or not, facial challenges are necessary to protect voter rights and keep elections fair. Unfortunately, this won’t be the first time the current Court has acted to dismantle our means of challenging corrupt laws. Check out last summer’s decision in Hein v. Freedom From Religion Foundation, in which the court barred U.S. citizens from suing to stop unconstitutional White House spending. Our justices aren’t just making the wrong decisions; the precedent they’re setting is whittling away our ability to defend our Constitutional rights. They’re becoming the bad government they were meant to prevent.

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