Courts & the Law: The Balloter’s New Burden

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Courts & the Law: The Balloter’s New Burden
By Kenneth Jost, CQ Columnist


The Supreme Court this month had sound legal reasons in rejecting a constitutional challenge to a New York law requiring party conventions instead of primaries to pick candidates for trial-level judgeships. The system makes it very hard for insurgents to win nominations. But, as Justice Antonin Scalia observed, the Constitution does not guarantee anyone a “fair shot” at winning an election.

At the same time, four justices also were on solid legal footing in signing separate opinions that implicitly endorsed the challengers’ critique of the process as perpetuating a system controlled by party bosses to reward loyalty more than merit. That’s the way the system works now, Justice Anthony M. Kennedy concluded, and so “it ought to be changed and to be changed now.”

Later this year the court also seems likely to reject a constitutional challenge in a second political rights dispute — but one with greater impact, possibly reaching to the presidential election. The combined cases, Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, test Indiana’s new law requiring voters to show a government-issued photo ID. The 2005 measure, written by a Republican-run General Assembly, is derided by Democrats as designed to suppress the vote among some of their base constituencies.

In contrast to the New York case, the Supreme Court has recognized a fundamental right to vote at least since the 1960s. And the oral arguments before the court in the Indiana case this month made clear that the state’s law imposes burdens on that right for some voters — and, from the evidence, for not much of a reason.

The law is the strictest among a flurry of measures, enacted since the disputed 2000 presidential election, to tighten identification requirements for voting. In effect, Indiana requires already-registered voters to present a current driver’s license, passport or state-issued photo ID for voting. A voting card is free, but to get one requires showing a copy of a birth certificate, and the state charges for those copies. A voter without an ID may cast a “provisional ballot,” but it isn’t counted unless the voter shows the proper paperwork at an election office within 10 days.

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