A day in court
Posted by Jonathan Bechtle - January 09, 2008This morning I attended the Supreme Court oral arguments in the case of Indiana Democratic Party v. Rokita, which deals with the constitutionality of Indiana’s photo ID requirement for voting. EFF filed an amicus brief in the case, and we thought we should attend the argument to witness the justices’ disposition first-hand.
I arrived at about 9:00 and was greeted by several long lines of more than 100 people who wanted to attend the hearing. Thankfully I had the foresight to get a reserved seat, and was shepherded by court staff through several security checkpoints to my seat on the aisle in the middle of the majestic court room. The place was packed, primarily with attorneys and interns affiliated with the 80 or so organizations who filed briefs in the case.
Paul Smith, a notable D.C. attorney, stepped up first to argue the case for the Democrats. He quickly became embroiled in a discussion over standing, since his clients had failed to produce even one voter who was unable to vote due to the photo ID requirement. Once through that issue, justices continually asked him to help define how many people were really burdened by the law. They wanted hard numbers but Smith hemmed and hawed, repeating several times that it was a difficult case, and that the justices would have to balance the harm against the benefit for themselves, an answer that didn’t seem to go over well.
Justice Roberts (among others) brought up the issue of voter fraud, indicating that Indiana’s inflated voter rolls make fraud substantially more likely. Justice Breyer asked several questions regarding the difficulty of even identifying polling place impersonation fraud, and Roberts agreed that it would be tough to uncover, especially in elections that weren’t close.
The inflated voter rolls became somewhat of a miry pit for Tom Fisher, Indiana’s Solicitor General, who argued next on the state’s behalf. Justice Roberts asked him why Indiana does “such a lousy job on voter registration.” Fischer mentioned the constraints of federal law, and also said they had trouble getting the counties to comply with registration-cleaning efforts, causing Justice Souter to jump all over him for burdening voters because election officials wouldn’t follow the law. Fischer managed to escape from that line of questioning, and did a decent job of laying out the rest of the state’s case.
U.S. Solicitor General Paul Clements spoke last, as his office had filed an amicus brief on behalf of the state. He restricted his arguments (which were delivered with meticulous detail and consummate skill, minus any notes) to the issue of whether this kind of broad, pre-implementation challenge was appropriate. He urged the court to determine that it wasn’t, but leave the door open for challenges from individuals who actually were harmed in subsequent elections.
My overall impression was that Justices Roberts, Alito, Thomas, and Scalia support upholding Indiana’s law, Justices Ginsberg and Souter are against it, and Justices Kennedy, Breyer and possibly Stephens are riding the fence. If I had to predict it today, I think there’s a good chance of a 6-3 decision in favor of the state, but probably with some concurring opinions.
The transcript of the oral arguments is available here.
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