I agree with Justin that Crawford is not a general approval of ID requirements.
The plurality based its decision largely on the facial versus as
applied distinction, as in Washington State Grange.
Crawford only addressed one particular first amendment challenge to
the statute, leaving open other possible future challenges.
Contrast McConnell v FEC with WRTL I and II and Citizen's United. The
details of the facts of CU were important to its result.
Crawford also didn't address Jon's point about the poll tax amendment.
I haven't read the Texas proposed statute. Under Harman v Forsennius,
the issue isn't just whether it's a poll tax; Forssenius applied
strict scrutiny to barriers to voting even if not actually poll taxes.
We don't know if today's court would apply strict scrutiny.
I have filed my most recent challenge to Indiana's voter ID system,
Stewart v Proffitt, et al., currently removed to federal court in
Indianapolis. In the 2008 general election, I was not given even a
provisional ballot. Because I don't choose to show ID, they sent me
away without being able to vote. The complaint is at
http://joellpalmer.blogspot.com/.
Based on the answer recently filed, it appears likely the case will
end up calling into question the constitutionality of the statutes,and
not be limited to their failure to even follow the statutes. I feel
like it's a potentially winnable case, except for one hurdle - I don't
have counsel. In several earlier versions of this dispute, which has
been going on since 2005, I filed cases but was never able to find a
lawyer,and got tangled up with procedural hassles that are beyond my
abilities.
I have previously posted to this list seeking help with my cases and
not gotten any, and that will probably happen again here, but I am
posting again. If anyone can refer me to a lawyer who could take the
case on a contingency or pro bono basis, please do so.
The issue of voter ID is bigger than just Indiana, and even a small
victory here would have ripples.
The current suit addresses only 2008. In 2010, when I ran for state
representative as a republican, I was unable to vote for myself.
I have a year and a half to file that one. But the 2008 facts are
stronger, because they didn't even give me a provisional ballot.
Cordially, Robbin Stewart.
On Fri, Jan 28, 2011 at 8:06 PM, Justin Levitt <Justin.Levitt@lls.edu> wrote:
One clarification concerning Crawford: Denise is exactly right that the
Supreme Court allowed the Indiana law to stand based on a balancing test --
but the plurality, at least, balanced the state's asserted interest against
the limited evidence of burden presented in the case. And that evidence of
burden was limited in part by the fact that the law was challenged before it
was enforced. Denise did not imply otherwise, but I don't believe that
Crawford amounts to a general approval of ID requirements under the federal
constitution.
Justin
--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt@lls.edu
ssrn.com/author=698321
On 1/28/2011 4:25 PM, Denise Lieberman wrote:
My understanding is that the Texas bill does allow for ID to be provided to
those who can't afford one/state they need it for voting purposes. If not,
it clearly would constitute a poll tax. However, even when the ID is
provided for free, these bills fail to take into account that the underlying
documents necessary to procure the ID (certified birth certificate, in some
cases social security card, marriage or divorce records etc) are not free,
can be very costly to low-income voters, and may be difficult -- and even
impossible for some -- to obtain. That is why the Missouri Supreme Court in
2006 concluded that the state's photo ID law was tantamount to a poll tax
and struck the law. However, Missouri's constitution - unlike the federal
constitution - expressly provides for a fundamental right to vote, thus
subjecting any restrictions on that right to strict scrutiny. In the
Crawford case, the U.S. Supreme Court reiterated that is not the case under
the fed
eral constitution, !
allowing the Indiana Photo ID law to stand based on a balancing test,
finding that the state had a reasonable interest in its voter ID
requirements.
Clearly, states have an interest in ensuring that those who vote are
eligible. That's why we have registration laws. The ID proposals in Texas
and elsewhere would only apply to those already deemed eligible. Even more,
it can be argued that states have a legitimate interest in ensuring that
people who appear at the polling place to vote are who they say they are.
But, photo ID laws that require only specific forms of non-expired state or
federally issued ID are not tightly tailored to that interest, when there
are many ways for people to assert they are who they say they are - through
various forms of identification - and including an affidavit signed under
penalty of perjury.
At the very least, these photo ID proposals should contain provisions like
in Michigan that allow voters without such ID to attest via affidavit to
their identity and cast a regular ballot. The proposals that allow such
voters to cast provisional ballots are an insufficient saving measure and
place additional burdens on voters.
Denise Lieberman, Senior Attorney
Missouri Voter Protection Advocate
Advancement Project
1220 L St. Suite 850
Washington, D.C. 20005
Cell: (314) 780-1833
dlieberman@advancementproject.org
www.advancementproject.org
________________________________________
As written the Texas bill is unconstitutional. Specifically, a violation of
the Poll Tax Amendment, since all the government issued IDs cost a fee. It
would only be constitutional if the ID cards were issued free.
It is also unconstitutional to require something be presented that everyone
is not required to have. There is no constitutional authority to require
everyone to have ID, not even to have a name. Historically, there have been
"no-name" persons, usually referred to in court pleadings by "John Doe" or
"Jane Roe" even if the person is in custody. But they are still citizens
qualified to vote.
What is needed is to add to the list of ID a notary acknowledgment. That is
the traditional, and constitutional, identification system. It should be
updated to digital certification, tied to biometrics, but the basic
principle should be "circles of
trust<http://www.constitution.org/col/id_trust.htm>", not a central
database. That allows identities to be altered by a few keystrokes by an
anonymous clerk, perhaps changing you into a fugitive child-molester and
cop-killer. Recall the movie, The
Net<http://en.wikipedia.org/wiki/The_Net_%281995_film%29>, starring Sandra
Bullock.
-- Jon
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