Balkinization  

Monday, April 28, 2008

Facial ID's, Facial Challenges and In Your Face Politics

JB

In Crawford v. Marion County Election Board, the Supreme Court continues a trend of using the technical doctrines of facial challenges to swat away constitutional litigation and drive questions back to the political process. Whether you think that is a good or a bad thing depends on your view of whether the Indiana legislature was essentially limiting access to the ballot to certain classes of voters in order to help the Republican Party stay in power. If you think that the political process will take care of enfranchising these voters, you need not worry too much about the result. If, on the other hand, you think that the political process is being used to build in advantages for one party over another, there is greater reason to be concerned.

As Justice Stevens' plurality opinion points out, all of the Republicans in the Indiana General Assembly supported the bill, while all of the Democrats opposed it. That degree of polarization speaks volumes about the purposes behind the legislation, but the real question is what message you (or the Court) wants to hear. One of the most famous ideas in constitutional law is the idea taken from the Carolene Products decision: courts should closely scrutinize laws when government officials try to skew the rules of political competition to keep their party in power. It's hard to get better evidence of a concerted attempt to fix the voting rules on behalf of a particular party than in this case. I guess we would need a speech on the floor by the majority leader saying "This is designed to screw voters most likely to vote Democrat and throw us out of office." Indeed, even if there was such a speech, it's not clear that it would make a difference to the plurality's new rule. The rule of the case, apparently, is that there are no returns for a Carolene Products defect.

But of course, all this makes perfect sense if you think that the courts should generally stay out of voting rights litigation. That would explain why the Court has not been willing to review partisan gerrymanders. But it would not explain the Court's decision to strike down the poll tax, which was used for years to keep particular groups in power. And the real elephant in the room is Bush v. Gore, where five justices were clearly quite concerned that Florida's tabulation rules might be manipulated to help one party over another. (In that case, of course, the party benefited was the Democrats, and the Justices in the majority were conservative Republicans. Do we sense a pattern here?).

Like Carhart II, which upheld the federal partial-birth abortion ban against a facial challenge, Crawford leaves open an as-applied challenge by persons whose rights are inhibited by Indiana's voter ID rule; however such challenges will be expensive and difficult to raise in practice. (It's worth noting that the lineup of Justices in Carhart and Crawford is the same with the exception of Justice Stevens.). I tend to agree with Rick Hasen that Crawford gives a fairly strong signal to states that they can pass strongly partisan electoral regulation laws and the Court will look the other way if there is a fig leaf of a public minded purpose, substantiated by only the flimsiest of evidence. Marty points out that evidence of in-person voter fraud is pretty flimsy indeed.

And that brings up another interesting parallel between Crawford and Carhart II. In Carhart II, Justice Kennedy acknowledged that there were "no reliable data" to support the argument that women would be suffer mental or physical harm by agreeing to a partial birth abortion (as opposed to another method of abortion). Nevertheless, relying on Sandra Cano's amicus brief he assumed that some women would later regret their choices to have an abortion (not just partial birth abortions), and so he upheld the ban on partial birth abortions to keep women from making the wrong choice. In Crawford, Justice Stevens acknowledged that "[t]he record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future." And yet based on two anecdotes, one from the 1800's, he upholds the statute.

Taking Crawford and Carhart together, we may conclude that these days you don't really need any empirical evidence to uphold limitations on constitutional rights against a facial challenge. All you need is truthiness. Don't get me wrong. Constitutional law has a place for truthiness. It may be all you need when legislatures only need to provide a rational basis for their actions. You can just make up stuff and the courts will defer to your stories. The question in this case, however, is whether Indiana's regulation of the right to vote should be judged by so lax a standard.

Comments:

Prof. Balkin:

[W]e may conclude that these days you don't really need any empirical evidence to uphold limitations on constitutional rights against a facial challenge.

It's of a part with the "equal protection" claim in Dubya v. Gore, where the conservatives, after many years of rejecting claims from blacks and women based on statistics but without the requisite proof of "invidious discrimination (outside of those damned statistics, of course, which can be used to "prove" anything as long as your accountant is Anderson), let stand a challenge, and even found themselves in their opinion, an actual "equal protection" violation in the conduct of an event that hadn't even occurred yet, despite the fact that no lower court had even tried the facts of the case (and how could they have, since it hadn't occurred?).

But here, the plaintiffs were just SOL because they couldn't show any harm or actual damages.

OTOH, the Republican legislature was accorded great deference in their judgement that, absent any actual evidence, there was a problem that needed "fixing" that would only impose minor burdens on people who wanted to vote.....

As I've said in the past, prosecution for any actual vote fraud, if and when it occurs, and there ought to be presumptive ban against anything that gets in the way of legitimate voters actually voting, perhaps with a LRM analysis for any such imposition.

Cheers,
 

Professor Balkin,

Your comment about Carolene Products echoes a very interesting case comment in the Harvard Law Review about the Seventh Circuit's Crawford decision. (120 Harvard Law Review 1980). Given the Justices' disagreement about the need for the voter ID law, a Carolene Products approach might have been a nice second best (and still leaves room for great deference to legislatures).
 

So far as I can tell there is near 100% overlap between people opposed to voter ID, and people in favor of rather severe political speech restrictions during campaigns, a direct attack on core 1st amendment rights. A pretty good overlap between voter ID opponents and people who want the right to keep and bear arms extinguished, too.

So principled civil libertarians they ain't.

The problem with claiming that proving who you are violates a right to vote, is that you don't have a free floating right to vote. You have a right to vote, once per election, in a particular precinct, and no other. During any given election, you have no right at all to vote in well over 99.9% of the precincts you might hypothetically show up at to demand a ballot.

Establishing your identity, so that your right to vote this time, in this place can be determined, is inherent to the exercise of the right. To be sure, you could come up with means to do that which were abusively difficult, but photo ID does not strike me as being that obviously over the top.
 

Brett:

So far as I can tell there is near 100% overlap between people opposed to voter ID, and people in favor of rather severe political speech restrictions during campaigns, a direct attack on core 1st amendment rights....

I believe in free speech. Why do you think that the [some would say "corrupting"] influence of money in political campaigns is "free speech", outside or Robert Zimmerman's observation that "Money doesn't talk, it screams"? Can you give a convincing argument as to why, in a milleiu that requires millions of dollars just to be competitive, we should let the folks with big money bags pay to get their candidates elected,with the obvious nod and a wink to the fact these candidates are then effectively "bought"?

... A pretty good overlap between voter ID opponents and people who want the right to keep and bear arms extinguished, too.

Do you think that restriction is "extinguishment"?

The problem with claiming that proving who you are violates a right to vote, is that you don't have a free floating right to vote. You have a right to vote, once per election, in a particular precinct, and no other. During any given election, you have no right at all to vote in well over 99.9% of the precincts you might hypothetically show up at to demand a ballot.

That's a pretty pathetic argument (otherwise known as a "red herring").

While it is important that people vote once and once only, there's no a priori reason why that person has to vote in a specific place, outside of eligibility to vote for the under cards. But in todays's information age, even that is not an insoluble problem, and the insistence that people vote only in the one precinct where they're registered is just one solution to the problem of the under card (and preventing multiple votes).

Establishing your identity, so that your right to vote this time, in this place can be determined, is inherent to the exercise of the right. To be sure, you could come up with means to do that which were abusively difficult, but photo ID does not strike me as being that obviously over the top.

The problem here is intent, Brett. It's no coinkydence that the vote for the "Voter ID" law was all Republican in favour, and all Democrats opposed (as is true on other states).

Both parties know who will have the harder time, and what demographic will be most inconvenienced and disadvantaged.

Take this along with past execrable excuses such as "literacy tests", "poll taxes", and so on, and the picture becomes clearer. It's important to the parties who gets to vote.

My feeling is that everyone ought to; that after all is the hallmark of "democracy". In the absence of any evidence that "voter fraud" actually occurred, why this law, Brett? Why make people jump through hoops? Why specify that certain people (of a certain demographic makeup) are pretty much automatically set up to vote, and others in a different demographic will have to do more than the first group?

Cheers,
 

The question in this case, however, is whether Indiana's regulation of the right to vote should be judged by so lax a standard.

The founding fathers clearly intended that standards be lax in cases like this. They wouldn't have allowed most of those disenfranchised by this measure to vote in the first place.
 

In Florida, in 2000, black voters cast 54% of the 179,855 ballots ‘spoiled’. It’s possible to calculate that Al Gore would have received a vote in Florida that was 77,000 votes higher, had the 'spoiled' votes been counted. Bush 'won' Florida by 537 votes. As Joe Stalin said: ‘It’s not the people who vote who count, it’s the people who count the votes.’ Millions more votes were lost because voters were prevented from ever casting a vote. And this is where the nasty spectre of race rears its ugly head. In Ohio 14.4% of black votes cast were not counted but only 1.6% of white votes cast were not counted. In Florida over half (54%) of the ‘spoiled’ votes thrown away as invalid were cast by black voters who, as the Republicans know only too well, usually vote Democrat. Only 13% of America’s population is black but black voters have a 900% higher chance of having their vote classed as ‘spoiled’. Yes, it could be a coincidence but what are the odds? The Supreme Court gave the 2000 election to Bush. They helped him steal the election. Now they're helping him again.
 

The comparison between Crawford v. Election Board and Bush v. Gore is interesting on two levels:

1) Both cases were decided by a bipartisan supermajority rather than a partisan majority. 7-2 in Bush v. Gore and 6-2 in Crawford.

2) Both cases dealt with variations of voter fraud. In Bush v, Gore, the Supremes stopped a selective recount of only Dem counties run by Dem elections officials who were each making up their own rules to generate "votes" for a Dem candidate which never showed up on the later media recounts. In Crawford, we are dealing with a simple ID requirement meant primarily for stopping illegal aliens from being registered by and voting for a certain party.

The only thing surprising about Crawford is that the decision was not 9-0. The Appellants' argument was facially untenable. The state offers free IDs to anyone who comes and gets them. The burden of waiting in a line for an ID is no more onerous than waiting in a line to vote. The folks who cannot come up with documentation to prove that they are an identifiable US citizen are overwhelmingly illegal aliens, not poor, elderly and disabled minorities who were born at home without a birth certificate.

The ferocity with which the Dems fight these laws is all the evidence of voter fraud one needs. The number of genuinely eligible voters who fall might fall through the cracks in a state offering free IDs can probably be totaled in three digits or less, of which only part would be Dems, and of which an even lesser part would actually show up to vote without an ID. The Dems are not fighting this hard for a couple dozen voters. The real prize is the roughly 12 million illegal aliens that both parties would like to turn into voters. Do the math.
 

rmenglish:

The founding fathers clearly intended that standards be lax in cases like this. They wouldn't have allowed most of those disenfranchised by this measure to vote in the first place.

Nor women. And especially not slaves.

But I suspect your analysis may be lacking. Back in those days, I suspect that there was no "registration"; if the townfolks knew you, that was probably all you needed to raise your hand, if even that (as long as you were white, male, and probably landed).

Cheers,
 

"Bart" DePalma:

1) Both cases were decided by a bipartisan supermajority rather than a partisan majority. 7-2 in Bush v. Gore...

Stop lying (or just spinning stale RW Wurlitzer "talking points"). There was no "7-2" decision.

Cheers,
 

"Bart" DePalma lies again:

In Bush v, Gore, the Supremes stopped a selective recount of only Dem counties run by Dem elections officials who were each making up their own rules to generate "votes" for a Dem candidate which never showed up on the later media recounts.

False. The recount that was halted in Dubya v. Gore was a recount of the whole state.

The recounts which were completed in Broward, and Volusia, which Gore had protested, were allowed to stand by the U.S. Supreme Court and were included in the "certified totals" (thereby ensuring that in fact different counties were counted using different methods, although that would have been true even if Gore hadn't done that; "stealth" manual recounts done in other [Republican-leaning] counties had netted Dubya some 100 or so votes).

Cheers,
 

"Bart" DePalma:

In Crawford, we are dealing with a simple ID requirement meant primarily for stopping [Delete: "...illegal aliens from being registered by and..."] [Insert: "voters"] from voting for a certain party.

As was pointed out, there was no evidence that illegals were voting.

Better.

Cheers,
 

"Can you give a convincing argument as to why, in a milleiu that requires millions of dollars just to be competitive, we should let the folks with big money bags pay to get their candidates elected,with the obvious nod and a wink to the fact these candidates are then effectively "bought"?"

Can you give me a convincing reason why incumbant officeholders should be trusted within a thousand miles of the power to regulate what's said about them during an election? And do you really think campaign censorship laws really only impact "big money bags"?

"Congress shall make no law..." It's not just a good idea, it's the First Amendment.
 

"Bart" DePalma:

The number of genuinely eligible voters who fall might fall through the cracks in a state offering free IDs can probably be totaled in three digits or less...

Like ... say ... 538 or so?

But mice of you to make up facts. We always appreciate that around here.

Cheers,
 

Brett:

[Arne]: "Can you give a convincing argument as to why, in a [milieu] that requires millions of dollars just to be competitive, we should let the folks with big money bags pay to get their candidates elected,with the obvious nod and a wink to the fact these candidates are then effectively "bought"?"

Can you give me a convincing reason why incumbant officeholders should be trusted within a thousand miles of the power to regulate what's said about them during an election?


Huh? What does that have to do with the price of tea in Sri Lanka?

I'd note as a fact that most of what gets said about "officeholders" is said about them at the behest of themselves or other officeholders, a dservice brought to you in part by the generosity of corporations like BigBidness™....

... And do you really think campaign censorship laws really only impact "big money bags"?

No. I think it affects all. So isn't that "equal protection"? Of course, it affects those with bigger money bags (and a bigger snout for the trough) a bit more, but I have no problems with leveling the playing field.

Once again, why do you think that money is speech?

"Congress shall make no law..." It's not just a good idea, it's the First Amendment.

I agree. Once again, why do you think that money is speech? Is there any place in the First Amendment that talks about the rights of money?

Cheers,
 

"No. I think it affects all. So isn't that "equal protection"?"

No, if it were equal, it would merely be "equal violation".

I don't think speech is money. I DO think that if you regulate only money spent on speech, the pretense that you're not regulating speech is awfully thin. Transparently so, as a matter of fact.
 

Brett:

I don't think speech is money. I DO think that if you regulate only money spent on speech, the pretense that you're not regulating speech is awfully thin. Transparently so, as a matter of fact.

Aside from the fact that money isn't speech, there is doctrine in First Amendment law concerning TPM restrictions (valid for limited public fora), and this allows subject matter restrictions so song as there is no viewpoint discrimination.

By far the best solution is public campaign financing or other developments that will remove the influence of big money from campaigns (such as the Internet). But the folks that have drawn up the laws have tried to walk the line between money contributions to campaigns (or directly co-ordinated with campaigns), and those of independent organisations such as 527s. The gummint can regulate organisations to some extent (or at least regulate what an organisation may do to qualify for certain gummint treatment). That they have. A person with megabucks can still print a bazillion flyers (subject to a campaign requirement that advocacy flyers for campaigns have to indicate who it is). But access to limited public fora (such as broadcast media) can be regulated. It's a difficult problem, no doubt, but U.S. elections are broken, and that's a fact. Doubt me, just Google "Abramoff"....

Cheers,
 

The real problem with Brett's view is not his equation of money and speech. Money, after all, is designed to be a common exchange for pretty much anything. Seen in that light, it's not much of a leap to want to exchange it for speech.

But that doesn't get to the crux of the issue, IMO. The real problem with political campaigns is not that private individuals like Cindy McCain want to finance a political campaign for someone. No, the real problem is that non-human corporate entities do. Those were rare beasts indeed at the founding.

The real issue is why we treat the 1st A as applying to corporations at all. Corporations don't have natural rights. They are purely a creation of the state and subject to its regulation. If we eliminate the pretense that corporate entities have free speech "rights", I think our democracy would survive quite well with the likes of Cindy redistributing her personal fortune to various tradespeople.
 

Griswold v. CT listed various "penumbras" to free speech in particular. If it doesn't include some right to promote, which involves money, it is a paltry right. Thus, current doctrine submits it to some, but not strict, scrutiny.

As to corporations, what of NYT v. Sullivan? NAACP v. Alabama? Sierra Club v. Morton? etc.? Should there be some sort of media, advocacy, et. al. (nonprofit?) exception here? Many corporations promote 1A goals. It is for profits that are the deepest concerns, but I note the blanket "corporation" bugaboo.

[court commentator Stuart Taylor raised a similar question]

As to the immediate case, I sorta recall a specific amendment concerned with poll taxes, the immediate concern involving poor and black folks. And, South leaning states like Indiana et. al. A law of this sort raises a certain type of voter regulation red flag.

[the law in question also has affects those with religious objections to photographs]
 

If money equals speech, does that mean the penniless are speechless - or the well-to-do are merely deaf to their pleas? Perhaps the "golden rule" of capitalism ("he who has the gold, rules") can with originalist gymnastics (can you just imagine Nino and Clarence twistin' away?) be read into the First Amendment speech clause.
 

arne:

1) Bush v. Gore was a 7-2 decision holding that the Dem making up the rules as you go along vote manufacturing scam violated the EPC. Two Dem appointees who voted with the majority wanted to give the Florida Supremes a third chance to get it right, but they held against Gore on the substantive issue.

2) Gore asked Florida for and was granted a selective manual recount of Broward, Miami-Dade, Palm Beach, and Volusia counties.
 

The ferocity with which the Dems fight these laws is all the evidence of voter fraud one needs.

No, sadly, you actually need evidence (beyond allegations) of widespread voter fraud. Since that's lacking, voter ID laws are just another politically attractive way to spend taxpayer's money on unnecessary forms and personnel rather than the programs favored by the opposition.
 

As to corporations, what of NYT v. Sullivan? NAACP v. Alabama? Sierra Club v. Morton? etc.? Should there be some sort of media, advocacy, et. al. (nonprofit?) exception here? Many corporations promote 1A goals. It is for profits that are the deepest concerns, but I note the blanket "corporation" bugaboo.

I was, of course, tweaking Brett somewhat from an originalist perspective. But cases like Sullivan wouldn't pose much difficulty -- the rule would still be in place, it just wouldn't protect the corporation. That would require that all newspapers be individually owned, just like they were at the Founding.

Standing rules are a separate issue. Without getting into them in detail, the holding in Sierra Club was that the corporation, as corporation, lacked standing. Only individuals got the right to sue (though the corporation was allowed to pursue the litigation on their behalf).

Apropos of standing and tangentially relevant to the lead sentence in Prof. Balkin's post, if you trace back the doctrine of facial challenges to its root, you get to this language in US v. Reese:

"We are therefore directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. For this purpose, we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a whole, or fall altogether. The language is plain. There is no room for construction unless it be as to the effect of the Constitution. The question, then, to be determined is whether we can introduce words of limitation into a penal statute so as to make it specific when, as expressed, it is general only.

It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would to some extent substitute the judicial for the legislative department of the government. The courts enforce the legislative will when ascertained, if within the constitutional grant of power. Within its legitimate sphere, Congress is supreme and beyond the control of the courts; but if it steps outside of its constitutional limitations and attempts that which is beyond its reach, the courts are authorized to, and when called upon in due course of legal proceedings must, annul its encroachments upon the reserved power of the states and the people.

To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty."

But, of course, the statute in that case was designed to permit black people to vote. Now that the statute in question is designed to prevent them from voting, a different rule applies to facial challenges.

Really gives you a new appreciation for the law, doesn't it?
 

"Bart" DePalma:

1) Bush v. Gore was a 7-2 decision holding that the Dem making up the rules as you go along vote manufacturing scam violated the EPC. Two Dem appointees who voted with the majority wanted to give the Florida Supremes a third chance to get it right, but they held against Gore on the substantive issue.

No Dem. appointee voted with the majority. This is a lie. As I've said previously, the (cowardly per curiam) "majority" doesn't get to decide what the dissenters' opinion is, and there were four dissents. Not two dissents, and two "concurring as to the holding in part I ["With respect to the equal protection question, we find a violation of the Equal Protection Clause."], but dissenting as to the remedy". Three "I respectfully dissent"s and one emphatic "I dissent". Period. The per curiam lied when it said: "Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy." This is simply not true, and just reading the dissents in question, one can determine that (e.g., Breyer: "And the more fundamental equal protection claim might have been left to the state court to resolve if and when it was discovered to have mattered", and Souter: "The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., or this case, and should not have stopped Florida's attempt to recount all undervote ballots, by issuing a stay of the Florida Supreme Court's orders during the period of this review. If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review...") It really can't be more straight-forward than that.

And just a FYI: Despite your hallicunations otherwise, it was G.H.W. Bush that appointed Souter. If you insist on being an eedjit, I can't stop you, but I will point it out each and every time.

2) Gore asked Florida for and was granted a selective manual recount of Broward, Miami-Dade, Palm Beach, and Volusia counties.

During the protest phase. As I pointed out (and you so assiduously ignored), the protest recounts were allowed to stand by the U.S. Supreme Court (thereby creating the very situation that they claimed, on "equal protection" grounds, to be so distraught about).

But the Dubya v. Gore case revolved around the contest phase, and the issue was whether the whole state should do manual recounts. As I pointed out, the (cowardly) per curiam was ruling on a supposed "equal protection" violation for events that hadn't even happened yet (in part because the SCOTUS blocked the counts with an injunction), so there was no factual record on which to even rule (much less to determine that there was an "equal protection" violation). Both Souter and Breyer pointed this out (see, e.g., the quotes above from their dissents).

In truth, the conservatives on the U.S. Supreme Court needed to stop the counts, and then rule against them a priori, because they needed to reach their desired outcome. That they did, but they did so in the most patently dishonest way possible.

Cheers,
 

pms_chicago said...

The ferocity with which the Dems fight these laws is all the evidence of voter fraud one needs.

No, sadly, you actually need evidence (beyond allegations) of widespread voter fraud.


Actually, you do not. All the state has to provide is a state interest that is rationally related to a legitimate voter qualification. There is no need to present any evidence at all.

...voter ID laws are just another politically attractive way to spend taxpayer's money on unnecessary forms and personnel rather than the programs favored by the opposition.

Please. GOP legislatures are not in the habit of creating new programs to expand the Dem unionized civil service work force.

Don't be naive. These laws are being enacted by GOP legislatures and fought tooth and nail by Dems because both parties believe that there are a substantial number of folks who are casting ballots unlawfully and predominantly for the Dems. Neither side would spend the money and time on something that does not appreciably affect the vote.
 

"...because both parties believe that there are a substantial number of folks who are casting ballots unlawfully and predominantly for the Dems."

Wow, that is some impressive BS.
 

Bart writes:
The state offers free IDs to anyone who comes and gets them. The burden of waiting in a line for an ID is no more onerous than waiting in a line to vote.


Unless, of course, you have to actually pay to get the documentation needed to meet the requirements to get the ID.

But, lets say for sake in discussion, that it only cost $1 for a person could get all the documents needed for the photo ID, and everything needed to get the ID was right there at the polling station, and if individuals wishing to vote were indeed indigent, all the resources to verify that and record it were also available so they could get free documentation needed to the the 'free' ID, as well as assistance for the illiterate so that everyone going to vote could be put on an even basis.

Poll taxes seemed like lesser of a barrier.
 

I don't know if ALL newspapers were "individually" owned in the 1700s.

But, overall, again, any number of "corporations" are out there with beneficial purposes. Again, what of the "Inc. Fund" aka litigation arm of the NAACP? One ability to avoid individual liability is esp. useful for certain beneficial groups with small pockets.

[and campaign finance laws generally have media exceptions that Scalia et. al. find discriminatory]

The core issue of Sierra Club was not that the corporation as such could never sue. It was in that case "The Sierra Club failed to allege that it or its members would be affected."

Mark Field might have partially meant to tweak Brett, but my overall point is really in answer to a wider group that blanketly speaks against "corporations" which from the early 1800s at least had some standing as artificial persons in our courts for the reason that they are of some use.

This includes to promote speech and advocate.
 

"7-2"

This confuses me since ...

"Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting."

Breyer did not join some section of Stevens' opinion. He joined it in whole. When they say "2," is there some aspect of Ginsburg's dissent (which Breyer only joined in part) that is involved?

Breyer also joined Stevens' statement that "their [Bush]position is wholly without merit"
 

Don't be naive. These laws are being enacted by GOP legislatures and fought tooth and nail by Dems because both parties believe that there are a substantial number of folks who are casting ballots unlawfully and predominantly for the Dems. Neither side would spend the money and time on something that does not appreciably affect the vote.

# posted by Bart DePalma : 1:04 PM


Baghdad, why do ID laws cut down on illegal voting for Dems? Are Republican too stupid to realize that they could cheat using this same method?
 

"I was, of course, tweaking Brett somewhat from an originalist perspective. But cases like Sullivan wouldn't pose much difficulty -- the rule would still be in place, it just wouldn't protect the corporation. That would require that all newspapers be individually owned, just like they were at the Founding."

This is problematic on at least two counts.

First, corporations are made up of people. You can't silence a corporation without silencing people. There's nobody else there to silence.

Second, the government is perfectly capable of crafting it's tax and liabity laws so as to make running a newspaper, or carrying out any number of other constitutionally protected activities, a practical impossibility without resorting to the corporate form of organization. In fact, is HAS so crafted those laws.

I don't believe that our rights should be interpreted in such fashion that the government can force us to relinquish them simply by writing the right tax laws.
 

Brett:

First, corporations are made up of people. You can't silence a corporation without silencing people. There's nobody else there to silence.

You can do away with corporations, and let the people do what they want.

Cheers,
 

"Bart" DePalma:

Actually, you do not. All the state has to provide is a state interest that is rationally related to a legitimate voter qualification. There is no need to present any evidence at all.

If there's no evidence, hard to say there's a "rational[] relat[ion]".

And it's interesting that "Bart" thinks that "rational basis" (if there is even this) is sufficient to overcome a restriction on a fundamental right.

Is there a "restriction"? Well, those that don't have drivers' licenses to begin with (and those would be the ones that are trageted by this law) have to go to the county seat, with other specific documentation, beforehand.

I'd note that the Republican "zeal" to prevent voter fraud is rather selective. While these laws prevent those that don't have drivers' licenses (or other 'approved' ID) from registering, the Republicans have resisted "motor voter" laws. A rather "situational" attention, that says a lot more about the actual motives of the Republicans. Even Stevens admitted that there was some partisanship at work in the laws; his major complaint is that no one was shown to have been harmed. That will be cured, I'm sure, and this will be revisited.

Cheers,
 

Arne, I see you pretty much blew off my second point, that our laws are so written that, as a practical matter, you have to be organized as a corporation to do some things.

The ACLU and the NRA, to name two 'corporations' of the sort McCain/Feingold sought to silence, are not organized as corporations for yucks. They're organized that way because our laws make accomplishing their ends, (Which ends are directly related to the exercise of 1st amendment rights.) very difficult and hazardous if you don't organize as a corporation.

The government can not herd the people into a particular mode of exercising their rights, and then by reason of that mode, deprive us of those rights.

Corporations MUST be permitted constitutional rights, so long as our laws force people into the corporate form of organization.
 

Joe & Co.

Oyez.org breaks down the votes in Bush v. Gore pretty clearly.

For what little it is worth, the case should never have made it to the EPC clause. As Justice Charlie Wells observed in his scathing dissent from the narrow majority of the Florida Supremes and the Renquist concurrence observed, the Florida Supremes simply do not have the power by rewriting Florida election law to usurp the Florida Legislature's plenary role in choosing electors for President. The argument should have begun and ended by simply reading the Constitution. However, Courts do not like to enter holdings which limit their own power.
 

Brett:

Arne, I see you pretty much blew off my second point, that our laws are so written that, as a practical matter, you have to be organized as a corporation to do some things.

No. If we can do away with corporations, we can do other changes as well, as necessary. But is it really necessary? What is it that you want to do that you "have to be organized as a corporation to do"? I mean, outside of shielding yourself from liability so that when you screw up, you fold the corporation and those you've injured can go screw?

Corporations MUST be permitted constitutional rights, so long as our laws force people into the corporate form of organization.

No one forces you "into the corporate form of organization". You, as a libertarian-inclined person, ought to recognise that.

That being said, there's no problem letting corporations exist and giving them some mandatory legal structure. But that legal structure doesn't have to include legal "personhood", IMNSHO. Then, given what the gummint offers and what the gummint demands, people can decide if that's for them. Which is as it is nowadays....

Cheers,
 

"Bart" DePalma:

Joe & Co.

Oyez.org breaks down the votes in Bush v. Gore pretty clearly.


Oyez doesn't get to say what the dissenters opinions were, any more than does the "majority". I quote from their actual opinions. Deal with it. Also deal with the fact that the (cowardly) per curiam lied. It's there in black-and-white.

For what little it is worth, the case should never have made it to the EPC clause. As Justice Charlie Wells observed in his scathing dissent from the narrow majority of the Florida Supremes and the Renquist concurrence observed, the Florida Supremes simply do not have the power by rewriting Florida election law to usurp the Florida Legislature's plenary role in choosing electors for President.

The majority of the Florida Supreme Court said that what they were doing was applying Florida law as it existed. And they, IMNSHO, were right. No one "rewr[ote] Florida election law", as the majority explained.

Contests were provided for by the Florida legislature, and had been used as so provided for quite some time. This is how the process down there worked.

No one was asking for a "revote". No one was adding or subtracting votes. All they were doing was resolving how to determine what ballots already cast were, once again according to the dictates of Florida election law.

The Florida legislature does have the power to decide the "manner" of "appointing" electors (including choosing them themselves, or settling it by a poker game, but that they did not do), but they have to do that before that "appointing" is done. Their own efforts to rewrite the laws to achieve a different method and result (with what were unarguably "new laws") after the election can readily be held to have violated this Constitutional provision: "The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States."

The argument should have begun and ended by simply reading the Constitution....

Huh? You lost me there. I'm the only one here citing language from the U.S. Constitution. Which one are you talking about; the one from Uranus?

... However, Courts do not like to enter holdings which limit their own power.

Huh, once again? It was the Florida legislature that actually specified that the courts were the proper venue to adjudicate the "contests" that the Florida legislature provided for. Had they specified differently, then you might have a point. But they didn't, and pigs don't fly, so we don't carry cast-iron umbrellas.

Cheers,
 

I don't know if ALL newspapers were "individually" owned in the 1700s.

As far as I know (and that's pretty far), they were.

Arne gave essentially the same answer I would have given to the rest. We'd simply have to restructure the way we organize politically.

There's no doubt that advocacy groups have used the corporate structure -- a structure originally created, remember, for purely economic reasons -- to their advantage. But consider this: corporations didn't get the protection of Constitutional rights before the Civil War, so it's not clear to me that treating them like people is in any way essential.

Brett, I noticed, ducked the originalist argument.
 

Don't be naive.

Right back at you, big guy. Republican efforts to impose voter ID laws aren't part of a righteous crusade against rampant voter fraud. Rather, they constitute a manipulative attempt to play on the public's fear of the other (illegal immigrants, blacks, blue meanies, whathaveyou) in order to get a permanent advantage in elections. All that and hey, the taxpayers get to pay for it. Win-win!

The movement is almost as sickening as Democratic gerrymandering in California.
 

"Right back at you, big guy. Republican efforts to impose voter ID laws aren't part of a righteous crusade against rampant voter fraud. Rather, they constitute a manipulative attempt to play on the public's fear of the other (illegal immigrants, blacks, blue meanies, whathaveyou) in order to get a permanent advantage in elections. All that and hey, the taxpayers get to pay for it. Win-win!"

This is a disappointing response. I understand we all want to be savvy, but even so this just doesn't compute. This doesn't take anything out of the hide of the public's "bogeymen", unless they can't produce valid ID.

I'm more interested in we get locked into these perceptions. Certainly, given the history of largely Democratic machines in most of our major cities, I think it has to be conceded that the GOP has substantial reason to want to clean up the administration of elections. If we _don't_ concede that, we ought to have a debate there.
 

pms_chicago said...

BD: Don't be naive.

Right back at you, big guy. Republican efforts to impose voter ID laws aren't part of a righteous crusade against rampant voter fraud. Rather, they constitute a manipulative attempt to play on the public's fear of the other (illegal immigrants, blacks, blue meanies, whathaveyou) in order to get a permanent advantage in elections. All that and hey, the taxpayers get to pay for it. Win-win!


Who said anything about righteousness? This is a down and dirty battle over votes.

The GOP does not get any electoral advantage from ID laws and the like unless there are illegal immigrants and others who are unlawfully voting for the Dems. Likewise, the Dems would not fear a GOP electoral advantage from voter ID laws unless they too believe that they are the recipients of the unlawful votes of illegal immigrants and others.

Or are you contending that both parties are engaged in a mass hallucination?

The demographics are pretty clear.

As I have observed before, native secular liberals are reproducing at a significantly lesser rate than native religious conservatives. Thus, in order to stay politically viable as a liberal party, the Dems have to add foreign immigrant voters. However legal immigration to citizenship is really quite limited. Political professionals on both sides realize this and thus the enormous fights over the 11+ million illegal immigrants.
 

"As I have observed before, native secular liberals are reproducing at a significantly lesser rate than native religious conservatives."

Has Lisa's bro joined "Big Brother" in peeking into bedrooms and backseats of cars? And let's define "native" so as to be sure it includes non-citizens with legal and naturalized citizens. Is the issue "pro-creative" versus just enjoying sex with or without the benefit of the rhythm method?
 

Bart, back away from the glue and read this.

It indicates that George Bush has done wonders to educate the the young -- although not through the NCLB act -- and presages about a generation of Democratic party dominance.

Also, do please inform us as to where all those illegal immigrants are voting? On a related not, you might want to check out the statistics on new (legal) immigrants' voting patterns. They're not a slam-dunk for the left, to say the least.

Of course, that must mean -- horrors! -- that the Democrats' support of immigration reform isn't based, as Bart's assumptions require, on naked electoral politics, but on some strange and alien motivation (to the mind of those like Bart) like belief in the principles upon which this country was founded.

After reading the comments of those who find the result of Crawford congenial with the questions: a) don't they see that attempts to limit or circumscribe the right to vote are contrary to the spirit of this country? and b) are their politics based entirely upon delusions and projection?
 

"As I have observed before, native secular liberals are reproducing at a significantly lesser rate than native religious conservatives."

Baghdad is VERY concerned about the rate at which dark skinned savages are reproducing.
 

Koz:

This is a disappointing response. I understand we all want to be savvy, but even so this just doesn't compute. This doesn't take anything out of the hide of the public's "bogeymen", unless they can't produce valid ID.

Oh, nonsense. See this:

But during the arguments, Scalia conceded that such laws would "inconvenience... a small number of people," and the Solicitor General for the state of Indiana actually said that "an infinitesimal portion of the electorate could even be, conceivably be, burdened by" the ID law.

You know, that's how the 14th Amendment WORKS, with equal protection for all, even that "infinitesimal portion of the electorate". And, as Amanda Terkel notes, that's a major soft-pedal of the impact:

"Voter ID laws, however, affect more than an "infinitesimal" number of Americans and are more than a "minor inconvenience." According to the federal government, there are as many as 21 million voting-age Americans without driver's licenses. In Indiana, 13 percent of registered voters lack the documents needed to obtain a license, and therefore, cast a ballot. These restrictions disproportionately hit low-income, minority, handicapped, and elderly voters the hardest, leading to lower levels of voter participation.

"Those affected also tend to vote Democratic, which may explain why Karl Rove and his colleagues have pursued so-called voter fraud with such zeal. Several U.S. attorneys ousted in the Bush administration's infamous prosecutor purge even alleged that they were fired because they refused to aggressively prosecute baseless voter fraud claims."


You have to go to the county seat to register if you don't have the 'right' ID (and one of the forms of 'right' ID is a driver's license). Combine that with:

Being a Hoosier, I have another piece of news, many of our BMV locations have been closed, especially up around Gary (a horribly depressed industrial area, neighboring Chicago).

OOh...I guess all those poor working class minority types will have to drive three counties away. QUICK, LOOK, Obama scored 37 bowling!


* * * * *

[Koz]: I'm more interested in we get locked into these perceptions. Certainly, given the history of largely Democratic machines in most of our major cities, I think it has to be conceded that the GOP has substantial reason to want to clean up the administration of elections. If we _don't_ concede that, we ought to have a debate there.

As pointed out, Indiana could offer no actual instance of voter fraud. It's not a problem in need of a solution, it's a "solution" in need of a "problem".

It's my feeling that it's better to let ten people vote illegally than it is to deny even one person the vote (similarly to the situation with criminal prosecutions; we give a presumption of innocence before mucking with fundamental rights) ... but thankfully we don't even have that "trade-off" to make; there's no evidence of fraud, and if there is, there is always the threat of criminal prosecution to punish and deter that, if and when it is found to be a problem....

Cheers,
 

"Bart" DePalma:

The GOP does not get any electoral advantage from ID laws and the like....

That's a lie.

Hell, the Rethuglicans (or, on a historical basis, the RW) have been the masters of "voter suppression" since even long before the Honourable (and now dead) William Rehnquist was engaging in voter intimidation during his salad days in Arizona....

Cheers,
 

"Bart" DePalma:

As I have observed before, native secular liberals are reproducing at a significantly lesser rate than native religious conservatives.

We noticed this "observation" (one can only hope that "Bart"'s children, if he has any, turn out to be gay Commie-libs just to really annoy him and shove a raised middle finger of 'applied science' in his face). "Bart" is of the opinyun that you can breed good little Nazis/Klansmen/CCC members if you just set your mind to it (and use the missionary position), despite the fact that polls show Republican party identification at an all-time low for recent decades. Please check your racism/"master race" ideology at the door before you come in. Thanks in advance.

Cheers,
 

Bartbuster:

Baghdad is VERY concerned about the rate at which dark skinned savages are reproducing.

He keeps bringing up repeatedly and incessantly, time after time, that we (the nominal "victims" of such a trend) ought to be concerned about this alleged 'trend'. Methinks the man doth protest too much....

Cheers,
 

Or are you contending that both parties are engaged in a mass hallucination?

Clearly, I have my political preferences. But I can think of a situation in which you might be closer than you think.

If I were to portray the GOP desire in the best light, it would be that they want to curb rampant voter fraud to ensure fair elections, even though no evidence of such widespread voter fraud exists.

If I were to go on and portray GOP rejoinders to Democratic concerns in the best light, it would be that there is no evidence that anyone would be disenfranchised by the voter ID law.

That is, the requirement would neither solve a documented problem nor disenfranchise people.

So, even giving credit where I wholeheartedly believe credit is not due, the entire project and the surrounding debate is based on speculation and is unnecessary. There's no reason to make a law (like HR 4844 back in 2006) that accomplishes nothing, but would cost $200 million to implement

In short, as I said above, it's an utter waste of taxpayers' money and politicians' breath.
 

PMS_Chicago:

If I were to portray the GOP desire in the best light, it would be that they want to curb rampant voter fraud to ensure fair elections, even though no evidence of such widespread voter fraud exists.

If I were to go on and portray GOP rejoinders to Democratic concerns in the best light, it would be that there is no evidence that anyone would be disenfranchised by the voter ID law.

That is, the requirement would neither solve a documented problem nor disenfranchise people....


You forget. The Rethuglicans are (or purport to be) scared of hallucinations, manufactured "threats", and boogiemen under their beds.

The perception of the "threat" need not be rational to take action (which, mirabile dictu, is always coincidentally in line with some other, less acknowledged, aim).

Cheers,
 

You know, that's how the 14th Amendment WORKS, with equal protection for all, even that "infinitesimal portion of the electorate".

Forgive me, but I'm still not getting it. As near as I can see, you are trying to argue that the exercise of constitutional rights has to be free of any inconvenience whatsover. If this really is what you're getting at, then let's just point out that life doesn't work that way, for voting or anything else.
 

A safe website always work hard in order to make sure can deliver each Buy Gold for WOW order within 15 minutes, no matter how many World of Warcraft realms there are!
 

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