IndianaDemocratic Party, et al., Petitioners 07-25 v. ToddRokita, Indiana Secretary of State, et al.
U. S.____ (2008) Opinion of STEVENS, J.
They wear their robes but leave the hoodsoff, the polite justices of the Supreme Court. They writedecisions then issue them in a formal setting, behind thecolumns of a capitol monument, with a history that confers adignity not deserved. The Court embodies the dilemma of ourmodern culture. The most awful acts are committed withbland justification by polite people who hide behindinstitutional trappings; for the sake of the few, at theexpense of the many.
When a vital right is denied to anygroup or class of citizens, the people suffer a great loss. They must endure mean spirited laws put forward as rationalpolicy then contend with the dual reality of apparentlylegitimate institutions conducting blatantly illegitimateattacks on the people. Brutal bigots and snarling attackdogs have been replaced with somnolent justices affirmingthe outrages of smiling politicians and the bureaucrats whofollow their orders. The net result is the quietevisceration of our most important rights in a manner thatputs the people into a light trance of continualacceptance.
The struggle for voting rights in the 1960'srepresents one of the finest periods in our nation'shistory. There was a rapid awakening to the decades ofharsh reality endured by black citizens in the South. Moststartling to the majority, unaware of this culture ofinjustice, was the near total absence of the right to votefor black citizens.
The issue of voting rights was and isfundamental to our political consciousness. The blatantviolation of those rights, the effort to keep almost allblack citizens from voting, created a national outrage. Unaffordable poll taxes just to vote, "literacy" testsarbitrarily administered to fail members of one race only,frequent intimidation at the polls, and the other flagrantindignities provided an immediate education to those whoread, watched and listened. This generated broad supportfor voting rights legislation to expand the franchise to allcitizens.
Most of those who had the rights were unable totolerate the outrages they saw inflicted on their fellowcitizens. Those who endured the violations laid down theirbodies; risked and gave their lives. They would no longertolerate the attack on their very existence as men and womenof equal stature from those who abused them.
The Voting RightsAct of 1965 passed with overwhelming majorities in the U.S.Senate and the House of Representatives. It was sponsoredin the Senate by the Republican leader, and was implementedwith a certainty and clarity that shocked the perpetratorsof a fraudulent election system. Voting rights did notconfer the benefits of social justice. However, thoserights did move to correct a key systemic inequality ofpolitical participation.
We were awake as a nation for abrief period, unified in the demand for the right to vote.The struggle to expand the franchise has been ongoingthroughout our history from white male property owners toall white males. For a period after the Civil War, bothblack and white males voted until white supremacy regainedcontrol in the old South. The women's suffrage movement wasthe last major expansion of the franchise before the greatcivil rights movement of the 1960's and beyond whichdemanded voting rights for blacks and then Latinos.
A newtrend has emerged, one that takes the nation back to thepost-Reconstruction period of the 1880's when black citizenslost their recently gained right to vote and participate incivic life.
Contracting the Vote
The April 28,2008 decision upholding Indiana'sphotographic identification (photo ID) law by the SupremeCourt of the United States is a major blow to votingrights.
Bush versus Gore dissenter, Justice John PaulStevens, spoke for the majority. In Crawford etal. versus the Marion County Board of Elections et. al.,the Court decided that Indiana's law was constitutionalsince it represents what may be a valid concern bythe state, even though Stevens' acknowledged that Indianapresented no evidence of in-person ¡°voter fraud¡±, thealleged ¡°threat¡± that made the law necessary.
Justice Stevens and the majority failed to consider thatthe Indiana law was passed on a straight party-line votewith only Republican legislators supporting it and allDemocrats opposing. Why was it a party line vote? Likemany other voter identification laws, Indiana's version isclearlybiased against potential Democratic voters andconstituencies.
The Court majority was unimpressed by thefact that many voters won't have a photographicidentification, according to a number of studies. TheCourt ignored a recent study showing Indiana's law willrestrict the vote and that photo identification requirementsare associated with 10% less turnout than is seen with lessrestrictive verifications.
Indiana's VoterIdentification Law
The Court decision allows the Indiana law to stay in place. In orderto vote, the law requires that registered voters present acurrent state or federal identification with a photographthat bears a name matching the voter's name on theregistration records. Indiana is one of the seven statesrequiring photographic identification (photo ID). The otherstates are Florida, Georgia, Hawaii, Indiana, Louisiana,Michigan, and South Dakota.
Voters who show up in personwithout a photo ID are offered a provisional ballot. The voter mustreturn to the election board by noon ten days after theelection with proof of identification, i.e., photo ID. Failing that, the voter must sign an affidavit assertingthat either he or she can't afford the identification or hasa religious objection to being photographed. If there is noother challenge, the vote is counted. Sound complicated? How many would go through all these steps to cast a ballot? Why should anyone be required to do so?
You don't need a photo ID at if you vote byabsentee-by-mail (11% of Indiana voters usedabsentee-by-mail or in-person in the 2008 Indianapresidential primary). In addition, if you¡¯re confined toyour home or a facility for medical reasons or if you have adisability and can¡¯t get to your precinct, a member of thestate ¡°travel board¡± will bring you a ballot and takeyour vote. There is no requirement for photo ID in eitherof these instances.
The False Alarm of Voter Fraud Usedto Restrict the Vote
Voter fraud refers to in-personvoting by individuals unqualified to vote. The allegedphenomenon of "voter fraud' is the justification forrestrictive voter identification laws like Indiana's. Voteridentification laws specify the identification that voterspresent before they're allowed to cast a ballot. Supposedly, tight voter identification laws reduce voterfraud. Of course, if there is no voter fraud to speak of,there's no legitimate justification to risk the right tovote by restrictive identification laws.
Voter frauddiffers from election fraud, which refers to thewholesale theft of elections through manipulation of votingand tabulating machines, gerrymandering (the distortions ofdistricts to secure elections), and other methods of rigging an entire election.
The BushJustice Department made a majoreffort to document an epidemic of voter fraud. The U.S.Attorneys had extensive training and intense encouragement to make cases. The failedresults of this effort are welldocumented and apparent from the total convictionsdisplayed in the chart below. The political manipulations behind this effort wereone of the causes of the U.S. Attorney's scandal.
Does voterfraud happen at any degree of frequency? Are there hordesof unqualified voters who manage to vote illegally withoutdetection?
From ThePolitics of Voter Fraud, L.C. Minnite (p. 9)
Federalstatistics show hardly any voter fraud prosecutions by theDepartment of Justice.
Where's the epidemic of voterfraud or even a significant problem?
This evidence should be definitive. Only 38 cases ofvoter fraud were prosecuted from October 2002 throughSeptember 2005. Fourteen cases were dismissed and 24resulted in guilty pleas or convictions.
There were 120million voters casting ballots in the 2004 election. Addthe total number of voters in all the other federalelections between October 2002 and September 2005. Thetotal prosecutable cases of voter fraud that the U.S.Department of Justice could find consisted of 38 charged and24 convicted. There is no epidemic of voter fraud.
It isimperative that we understand that the voter fraud epidemicis a pure fabrication and fantasy.
Since voter fraud barelyexists, there is no rationale for tightening voteridentification requirements. Given the real risk ofreducing turnout there is every reason to avoid anyadditional laws that inhibit voters and voting. Yet twenty-fivestates have significant voter identificationrequirements, including seven that mandate official photoidentification. The Court gave a green light to all statesto create meaningless identification requirements if itserves the majority interests in statelegislatures.
Photo ID's as an Effective Barrier toVoting
A statewide survey of 1,000 registeredvoters was conducted in Indiana in 2007 by the Institutefor the Study of Ethnicity and Race, University ofWashington. The study measured the impact of Indiana's newvoter identification requirement, the law upheld by theSupreme Court. The highly pertinent results below show theclear bias of the law:
Data fromTables 1.1, 1.1.b, and 2.1 (pp. 18-19)
Six percentfewer black registered voters reported sufficient voteridentification for Indiana elections. Of the generalpopulation, a pool for new voters, nearly 12% fewer blackcitizens have sufficientidentification.
In addition, the Indianastudy found that 21% of registered voters without a highschool diploma lacked sufficient identification to votewhile 11.5% with a college diploma lacked sufficientidentification.
Most pertinent to the 2008 presidentialelection, the study confirmed the political bias of theIndiana voter identification law. The studyconcluded:
"Among registered voters withvalid ID, 41.6% consider themselves Republican8 and 32.5%are Democrats. In contrast, among registered voters withoutproper ID, 34.8% are Republican and 38.0% are Democrats.Beyond the exclusion of certain demographic groups outlinedabove, this data suggests that a greater number of Democratsare excluded from voting under Indiana¡¯s voteridentification laws. (p. 12).
A majorstudy on the impact of voter identification wasconducted by scholars at Rutgers University and the MoritzSchool of Law, Ohio State University. The authors analyzed2004 election data from around the country. Turnout instates with photo ID requirements was 58.1% compared with64.2% in states that required voters to give their name asthe main requirement (Rutgers, 2006). That's 10% lowerturnout associated with a photo identificationrequirement.
Summarydata from Rutgers Study (p. 6)
In 2004, turnout was10% higher in states where voter identification
involvedstating one's name than in states where a photo ID wasrequired.
The researchers backed outstates with photo ID requirements and found that Latino andblack turnout was down disproportionately in states withanother intensive identification requirement, signing anaffidavit stating that you are the voter that you claim tobe (Rutgers, p. 11).
A recent study on Georgia'svoter identification law was conducted by scholars atthe University of Georgia, Athens. They looked at the mostcommon voter identification, a driver's license. Race andage (being black, being young) were associated with theabsence of a driver's license. Blacks had a much higherprobability than whites of lacking a driver's license. Registrants without drivers' licenses were 50% less likelyto vote in a general election. Those without photo ID weresignificantly more likely to vote in Democratic rather thanRepublican primaries. These findings show the highlypartisan impact of the requirement for photographic voteridentification.
This evidence is clear. Voter ID lawshave a negative effect on minorities and, it appears,younger and less educated voters as well. The requirementreduces turnout and, by doing so, it reduces the right ofcitizens to vote, all to prevent a non existentcrime.
Partisan Evidence, Partisan Decision
Indeciding for Marion County and the state of Indiana, themajority cited evidence from the federal Election AssistanceCommission (EAC). The politically appointed commissionadministers the Help America Vote Act (HAVA). HAVA providesfunding and sets standards for the nation's votingtechnologies, voter registration databases, and otherelection systems. The EAC actively sought to suppress then rewrite two reports it hadcommissioned that showed voter fraud to be insignificant andfound voter intimidation at polling places to be a problem. The EAC has a troubled record and is a source highlybiased in favor of the current administration.
The Courtcited the Carter-Baker Commission on Federal Election Reformco-chaired by James A. Baker III, who was the architect ofthe heavy-handed 2000 Republican effort that forced Bush intothe White House. This effort included delaying tactics likethe famous "preppy riot," and other subterfuges tosee that the Florida vote was not verified through arecount. The Commission also came under harshcriticism for the photo ID recommendation. This ishardly a serious source unless name-dropping is acriterion.
Most remarkably, the Court admitted that therewas very little evidence proving that voter fraud evenexists. In footnote 12 of the Stevens' opinion, the Courtevaluated evidence of voter fraud in Indiana and found noevidence of in-person voter fraud, the entire rationale forthe law.
Stevens went looking elsewhere and claimedthat "There remains scattered evidence of voter fraud." Andhe found it -- one instance -- in the 2004 Washingtongubernatorial race. Nineteen "ghost voters" were discovered(based on an oral opinion by a local judge) and a newsreport mentioned of one individual attempting in-personvoter fraud. Twenty examples of voter fraud are all theCourt could muster to affirm a law that may affect the voteof millions and change elections. (See commenton footnotes 11, 12, and 13)
"But if anondiscriminatory law is supported by valid neutraljustifications, those justifications should not bedisregarded simply because partisan interests may haveprovided one motivation for the votes of individuallegislators." Justice John Paul Stevens, MajorityDecision, Crawford et al. v. Marion County Election Board etal., Apr. 28, 2008
The partisan sourcesand justifications used to support Judge Stevens' rulingshould not be disregarded either. The evidenceselection process speaks volumes about the Court's intentionto contract rather than expand the franchise
In additionto biased evidence, a most compelling argument for thepartisan nature of the decision is found in the Indiana law. As mentioned, absenteeby mail and absentee by hospitalization or due to disabilityvoters do not have to present a photo ID when theyvote.
Are absentee and in-person voters at equal riskfor committing voter fraud? If so, then the Indiana lawcreates two classes of voters: in-person voters who aresubjected to more restrictive voter identification andabsentee voters who have less restrictive identificationstandards.
This is a glaring inconsistency. It gives anadvantage to those who choose to vote absentee. Is theresome reason to believe that this class of voters isinherently more honest than in-person voters? If not, usingthe Court's own logic, the failure to identify and act onthat inconsistency shows a less than serious attitude towardthe supposed threat of "voter fraud."
This decisionresurrects a trend in voting rights not seen since thepost-Reconstruction era following the Civil War. During thedecade following the Compromise of 1877, black participationin civic life in the South was reduced to an absoluteminimum by deliberate plan. The plan¡¯s goal was toseverely restrict the voting rights of blackcitizens.
Resurrecting the "Redeemer" Coalition
The "Compromise of 1877" settled theprotracted dispute over the 1876 presidential electionbetween Democrat Samuel J. Tilden and Republican RutherfordB. Hayes. Tilden had more popular votes but there was adispute over the Electoral College count. A "blue ribbon"commission spent months trying to settle thedispute.
Finally, a "compromise" emerged. Tilden withdrewhis claim on the presidency in return for a promise by Hayesto withdraw federal authority from the South. This endedthe participation of black citizens in elective politics asvoters, candidates, and office holders. DuringReconstruction, blacks voted in large numbers, won electiveoffice, and served at all levels of government. Thismulti-cultural democracy ended just a few years after thecompromise when white domination returned to theSouth.
The Democratic Party of the South was the politicalarm of this effort, while the Ku Klux Klan and other groupscarried out paramilitary and terror functions (murder, rape,lynching, etc.). Those participating in the political armwere known as "The Redeemers," whites who sought¡°redemption¡± from the difficulty they experiencedsharing power with black citizens.
A true moment ofredemption for white supremacy came when the Supreme Courtof the United States issued the Williams versus Mississippi decision. This decision allowed other states in the South andelsewhere to adopt the voter suppression provisions of theMississippi Constitution which were specifically designed torestrict the voting rights of black citizen¡¯s rights andminimize their participation in civic life.
PlaintiffWilliams sought to have his murder conviction overturnedbecause he'd not been tried by a jury of his peers. A blackcitizen, Williams pointed out that juries were chosen on thebasis of voter rolls. When they registered to vote, blackswere routinely discriminated against through a variety ofmeans, including the literacy test required to register. White registrars routinely failed blacks and passed whitesregardless of the results. Williams argued that he had notreceived a trial by jury of his peers, since blackMississippians were systematically excluded from thejury.
The Court failed to take this obvious fact intoaccount and decided:
[The MississippiConstitution and laws] "¡ do not on their facediscriminate between the races, and it has not been shownthat their actual administration was evil; only that evilwas possible under them." Williams v. Mississippi, Supreme Court ofthe U.S., Apr. 25, 1898
The justiceseither didn't know or didn't care that the MississippiConstitution had been constructed by the Redeemers andothers with the specific intent of keeping black voters fromvoting.
The affirmation of the MississippiConstitution by the U.S. Supreme Court in Williams wasfollowed by the spread of that document's deliberatelyconceived methods of voter suppression and voterdisenfranchisement to states throughout the South and thenation. Poll taxes, literacy tests, and felondisenfranchisement had their origins in this document, onethe Court affirmed. While detached from their historicalorigins, provisions of the Mississippi Constitution of 1890are well placed in state constitutions across thecountry.
A Court and Government against thePeople
The Court must have known that the millions atrisk of losing their voting rights are predominantly black,less educated, and young. Yet the Court made the mostpolitical decision since it held its own "election of nine"in 2000 to give Bush the presidency.
This Court alsoresurrected a doctrine that discriminates against minoritycitizens that mirrors the Williams versus Mississippi caseof 1898. The Court's majority redeemed the once-vanquisheddoctrine of restricting and contracting the vote.
This isthe Court that allows torture by federal authorities; sitsidly by as habeas corpus is removed from our laws; allowsour votes to be counted in private by partisan corporations;sanctions illegal wars declared only by the president; andrarely misses an opportunity to support the interests oflarge corporations over those of citizens. Now the Court iscollaborating with those who would restrict the vote.
Inorder to remain connected to reality, it's time to admit andproclaim the obvious fact -- our country is approaching alawless state. The highest court issued a blatantlypolitical decision that denies the vote in a way that placesone political party at a significant disadvantage as weapproach a presidential election and, more importantly,threatens to disenfranchise millions.
As it did this, theCourt denied the most fundamental tenet of our politicalhistory -- the right of all citizens to select theirrepresentatives. Today it's the poor and minorities. Whichsegment of the population will be losing its right to votenext?
How will the people ever fully restore the vanishingright of habeas corpus (see note) and other civil liberties? How will the movement for social justice ever berevitalized?
Election fraud has now been expanded in scopeto include the nation's highest court, which has become theenemy of the people. Justice Stevens should read his ownwords from his dissent in Bush versusGore:
"Although we may never know withcomplete certainty the identity of the winner of this year'sPresidential election, the identity of the loser isperfectly clear. It is the Nation's confidence in the judgeas an impartial guardian of the rule of law." Justice John Paul Stevens, Dissent, Bush v.Gore, Dec.12, 2000ENDS
Special thanks to The Scholar for hisinspiration and to Jill Hayroot, Susannah Pitt, and AlexisCollins for their comments.
Permission granted toreproduce in whole or part with attribution of authorship, alink to this article, and appropriate credit forimages.
- List of evidence presented in Crawfordversus Marion County (Indiana) Board of Education. IndianaVoter ID case just decided by U.S. Supreme Court, TheBrennan Center, New York University, Apr.2008.
- The Disproportionate Impact of Indiana VoterID Requirements on the Electorate, M. Barreto, S. Niño, &G. Sanchez, Washington Institute for the Study of Ethnicityand Race, Nov. 2007
- Worth athousand words? An Analysis of Georgia's VoterIdentification Statute, University of Georgia, M.V. Hood III& C. Bullock, Apr. 2007
- Protecting the franchise or restricting it: The effects of voter identification on turnout, T.Vercelotti & D. Anderson, Rutgers University,2007
- Loser Take All: Election Fraud and TheSubversion of Democracy, 2000 - 2008, Mark Crispin Miller(Ed.), 2008
- The Politics of Voter Fraud, L.C. Minnite,Project Vote, 2007
- Democratic Contraction? PoliticalConsequences of Felon Disenfranchisement in the UnitedStates, C. Uggen & J. Manza., The American SociologicalReview, 2002
- Ballot Manipulation and the "Menace of NegroDomination¡±: Racial Threat & Felon Disenfranchisement inthe USA, 1850 to 2002, A. Behrens, C. Uggen, & J. Manza,American Journal of Sociology, Nov.2003.