The debate over voter identification continues. After the state Court of Appeals overturned the law last September, in League of Women Voters v. Rokita, the Indiana Supreme Court took up the case. Late last week,the justices heard oral arguments.
This entire odyssey continues to intrigue me.
I get the politics behind it. It is not as if the state legislators even attempted to hide their politics, nor could they. Republicans supported the measure, the Democrats opposed it. The U.S. Supreme Court refused to strike down the law, in Crawford, and probably for good measure. Judicial activism should not be a question of whose ox is being gored. (The conservative majority on the Court only needs to work on its consistency).
The plaintiffs then came to the state courts, where they should have been in the first place. To think the federal courts would be receptive to their claim, with a record lacking even one aggrieved voter, was sheer lunacy. The state Court of Appeals accepted their claim on state constitutional grounds,in a unanimous ruling. Critics branded it judicial activism, supporters called it a sound judicial ruling, a decision grounded on law, not politics. Most puzzling to me was the response from some of the Republican leaders of our state. They argued immediately after the ruling not only that this was an activist ruling -- I get that part -- but also that the question was already settled by the U.S. Supreme Court and the plaintiffs should well leave it alone. This is clearly wrong; the federal court did not pass on the state constitutional question.
I had two reactions soon after the Court of Appeals ruling back in September. The first was a reminder to Justice Brennan's argument in the 1970's for litigants to turn to the state courts to bring their claims, as he well knew that the federal courts would no longer offer a receptive forum. The Warren Court era had come to a close, and it was time to switch strategies. This was sound advice, from a very strategic justice. The plaintiffs in the voter id case finally heeded his advice.
The second reaction focuses on the state Supreme Court justices. Why would they step into this minefield if they did not intend to overrule the lower court? I have nothing but the utmost respect for the Indiana Supreme Court justices; they are sound, level-headed jurists. They would not court trouble lightly.
Hearing the argument from last week reinforced this last point for me. The justices lobbed hard yet fair questions at both sides. They did not tip their hand. Yet I still wonder why they would take the case if not intending to overrule it. Could it be that they would rather shine the focus of this political football on themselves, and away from the Court of Appeals. That is, and as political scientists and law professors often remind us, are the justices simply seeking to legitimize what the Court of Appeals did? After all, it is one thing for a three-member court to strike down a law, yet quite another for a state Supreme Court to do so. This would be an act of statesmanship of the highest order.
I cannot wait to see how this issue finally ends.
