COMMENTS ON JUDGE STEVENS' PROOF
1 Cite as: 553 U. S. ____ (2008) Opinion of STEVENS, J.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
Nos. 07--21 and 07--25
WILLIAM CRAWFORD, ET AL., PETITIONERS 07--21 v.
MARION COUNTY ELECTION BOARD ET AL.
INDIANA DEMOCRATIC PARTY, ET AL., PETITIONERS 07--25 v. TODD ROKITA, INDIANA SECRETARY OF STATE, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[April 28, 2008]
JUSTICE STEVENS announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and JUSTICE KENNEDY join.
Cite as: 553 U. S. ____ (2008) Opinion of STEVENS, J. (pages 11, 12)
[Text from Judge Stevens' Majority Decision]
The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation's history by respected historians and journalists,11 that occasional examples have surfaced in recent years,12 and that Indiana's own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor13--though perpetrated using absentee ballots and not in-person fraud--demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.
Stevens admits that "there is no evidence of any such fraud actually occurring in Indiana." That should have been the end of the reasoning process, law rejected. But that admission was immediately sabotaged by Stevens' search for an adequate justification for his vote. We will see that his justification for an Indiana law found at other times in history and other states is entirely inadequate. The majority opinion in this vital case rests nonexistent occurrences of voter fraud in Indiana and irrelevant or weak occurrences elsewhere.
[Footnotes from text above]
Footnote 11, Judge Stevens Majority Opinion
11One infamous example is the New York City elections of 1868. William (Boss) Tweed set about solidifying and consolidating his control of the city. One local tough who worked for Boss Tweed, "Big Tim" Sullivan, insisted that his "repeaters" (individuals paid to vote multiple times) have whiskers: "When you've voted 'em with their whiskers on, you take 'em to a barber and scrape off the chin fringe. Then you vote 'em again with the side lilacs and a mustache. Then to a barber again, off comes the sides and you vote 'em a third time with the mustache. If that ain't enough and the box can stand a few more ballots, clean off the mustache and vote 'em plain face. That makes every one of 'em good for four votes.' "
A. Callow, The Tweed Ring 210 (1966) (quoting M. Werner, Tammany Hall 439 (1928)).
Comment on footnote 11: This is one of the most serious cases before the Court in years. It balances a law passed to prevent a problem that doesn't exist anymore with the outcome of that law which will, by available evidence, reduce voting (turnout) and disproportionately impact minorities, the less educated, and one political party to a much greater degree than the other. To make a statement like the following requires some attention to detail. It also requires that support for the statement, a key argument for the decision, be credible.
flagrant examples of such fraud in other parts of the country have been documented throughout this Nation's history by respected historians and journalists,
But what we get is one story of one period of time, New York City in the 1860's that has nothing to do with voter fraud as a justification for the Indiana law. Boss Tweed had roving bands of thugs who would go from precinct to precinct and bully their way in to vote for Tweed's selected candidates. Does Judge Stevens think the Tweed technique is a threat to Indiana? How long would roving thugs disrupting precincts be tolerated in anywhere in the nation? Isn't this a problem local law enforcement could remedy quickly? While invoking charges of voter fraud "through the Nation's history," Stevens produced only one, antiquated instance that has nothing to do with the present circumstances.
In addition, he leaves out a great deal -- like the deliberate suppression of the vote in the old South and massive intimidation of immigrant groups that sought to exercise their right to vote.
Footnote 12, Judge Stevens Majority Opinion
12Judge Barker cited record evidence containing examples from California, Washington, Maryland, Wisconsin, Georgia, Illinois, Pennsylvania, Missouri, Miami, and St. Louis. The Brief of Amici Curiae Brennan Center for Justice et al. in Support of Petitioners addresses each of these examples of fraud. While the brief indicates that the record evidence of in-person fraud was overstated because much of the fraud was actually absentee ballot fraud or voter registration fraud, there remain scattered instances of in-person voter fraud. For example, after a hotly contested gubernatorial election in 2004, Washington conducted an investigation of voter fraud and uncovered 19 "ghost voters." Borders v. King City., No. 05--2--00027--3 (Super. Ct. Chelan City., Wash., June 6, 2005) (verbatim report of unpublished oral decision), 4 Election L. J. 418, 423 (2005). After a partial investigation of the ghost voting, one voter was confirmed to have committed in-person voting fraud. Le & Nicolosi, Dead Voted in Governor's Race, Seattle Post-Intelligencer, Jan. 7, 2005, p. A1.
Comment on Footnote 12: This is a critical footnote. Stevens must establish that there is a crime that threatens the integrity of the election. He's already admitted that there are no real instances of in-person voter fraud in Indiana. He must find it elsewhere. How well does he do?
Here's the key line from the footnote:
"While the brief indicates that the record evidence of in-person fraud was overstated because much of the fraud was actually absentee ballot fraud or voter registration fraud, there remain scattered instances of in-person voter fraud."
In person voter fraud is the entire rationale for the Indiana law because that's what photo IDs are supposed to prevent. Judge Stevens tells us that the Brennan Center offered a brief that totally demolished the notion of any significant in-person voter fraud. Wait! Shouldn't that be the end of this exercise? No crime, no law to prevent the crime that could damage the participation of voters as indicated by the studies presented.
But the Judge betrayed his intent by continuing. Having this voter suppression law in place was so important to the court, Stevens grasped at straws. He found an instance in the 2004 election where "19 ghost voters" cast ballots but that was sourced from a "(verbatim report of unpublished oral decision)." He then quotes an article from the Seattle Post Intelligencer for the same election which Stevens says found one case of in-person voter fraud.
The proof of voter fraud used as a rationale for the Indiana voter identification law rests on one publicly reported case of voter fraud and one report on an unwritten court decision. Thus, a law in Indiana with the potential to discourage turnout, the other laws which have been measured to actually suppress turnout, and all the new laws that will do the same are based on a grand total of 20 cases of supposed in-person voter fraud, 19 of which require that we just take the word of a "verbatim" reporter.
The standard of proof displayed is entirely unpersuasive and inadequate by any logical or rhetorical standards. There's no point in further comment other than this. The court must assume that either nobody reads their footnotes containing the rationale for the decision or that those few who do, won't tell the larger audience that the standard of proof supporting a Supreme Court of the United States decision is laughable, at best, and, without doubt, entirely insufficient to support a major decision like this.
Footnote 13, Judge Stevens Majority Opinion
Comment on footnote 13: Footnote thirteen demonstrates the hypocrisy of the Court's decision. The corruption in the East Chicago mayoral election of 2003 involved absentee ballots. Operatives for one of the candidates paid poor voters $100 to file an absentee ballot, which the operative would fill out. This election occurred before the Indiana Voter ID bill at issue became law in January 2007. While Stevens was correct to cite this as a case of voter fraud, it's irrelevant to support Indiana's voter ID law.
The purloined voters did not attempt in-person fraud, the object of the voter ID law, they committed voter fraud through absentee voting. Had the court reviewed the Indiana law, or even the Voter ID section of the Secretary of State's web page, they would have found this:
Had the Court evaluated the Indiana law for internal consistency as a means of judging the intent of the lawmakers, it would have noticed that absentee voting by mail does not require voters to produce a voter ID. If you are hospitalized or sufficiently disabled, the Indiana "travel board" will bring you an absentee ballot. Voters in these instances are not required to show a Voter ID.
Is there something more inherently honest about a voter mailing in their ballot that absents the need for a photo ID? Are hospitalized and disabled voters more trustworthy than in-person voters. If not then the standards for verifying that these voters are registered and qualified is sufficient for in-person voting. If these voters are like the majority who go to their precinct to vote, no more and no less prone to voter fraud, then the ruling allows a significant portion of the voters to cast ballots without sufficient checks against voter fraud.