U. S. Supreme Court: Gore V. Bush redux?

The U. S. Supreme Court is set to hear oral arguments on Jan. 9, in the combined cases of Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, I previously discussed here.

The issue? Does a state requirement that voters show a specific kind of photo identification before casting a ballot violate the Constitution?

The answer, depending on who you ask, and the political persuasion of the answerer, will vary.

How, you ask?

Well, Circuit Judge Richard A. Posner, a Ronald Reagan appointee, wrote in upholding Indiana's strictest-in-the-nation law is not burdensome enough to violate constitutional protections.

In Judge Posner's opinion, "It is exceedingly difficult to maneuver in today's America without a photo ID (try flying, or even entering a tall building such as the courthouse in which we sit, without one)."

Not too fast, his colleague on the U.S. Court of Appeals for the 7th Circuit, Bill Clinton appointee Terence T. Evans, suggested in advising "[l]et's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic."

This 2 to 1 opinion broke down along party lines, and so did the opinion of the entire court.

In Michigan's Supreme Court, the justices -- who are elected in partisan races -- split along political party lines in upholding that state's voter ID law (five Republicans voted to support it and the two Democrats opposed it).

Whether the U. S. Supreme Court Justices will also split among party lines (remember Gore V. Bush) remains to be seen, though an indication of how the Supreme Court may rule may be found in a pair of previous cases from the Court.

In 1992, the Supreme Court refused to apply constitutional "strict scrutiny" standards concluding that it would conflict with the states' ability to run efficient elections in a case involving write-in candidates in Hawaii.

And in 2006, in a relatively short and unsigned opinion issued just weeks before the election, the court gave approval to a voter-approved initiative in Arizona that required voters to show proof of citizenship.

So, though it is markedly suspicious when the Court accepts a case, suggesting that the Court has found something wrong to reverse in the case, it appears that the Court may employ a less than "strict scrutiny" test in this case -- such as a "rational basis" test -- to find that the voter id law in question, with its basis in the prevention of voter fraud, passes constitutional muster -- especially if safeguards, such as the use of provisional ballots for voters without ids, and allowing voters to sign sworn statements attesting to their identity before voting, are a part of the voter id law.

We'll have to see how the oral arguments go on the 9th, and most importantly what the Justices say in their majority opinion (which I predict to be 5 to 4, or 6 to 3 decision) when the opinion is issued.

Stay tuned.