The Supreme Court Hangs In The Balance With The Upcoming Election

In 2008, The United States Supreme Court handed down its decision in Crawford v Marion County Election Board. In this case, the Court held that Indiana’s voter identification law was constitutional and that it was permissible for a state to require photo identification in order for a prospective voter to cast a ballot. The premise for the ruling was that a state has a valid interest in improving election procedures and deterring fraud. Photo identification accomplished both goals.

The main argument against voter ID was that it served as a barrier to voting for low-income citizens and thus disenfranchised the poor.  Another platitude you often hear is "voter suppression". But, the empirical data disproved these assertions.

A 2008 University of Missouri study  determined that voter turnout in Indiana’s first election after the voter ID law went into effect did not decrease, but actually increased. The Brennan Center concluded that “... concerns about voter identification laws affecting turnout are much ado about nothing.” The study further concluded that there was absolutely no evidence that voter ID laws had any effect on turnout, even across racial, ethnic, or socio-economic lines.

The reason voter ID requirements have no detrimental effect on turnout is very simple -  just about everyone has some form of government ID. An American University survey of voters in Maryland, Indiana, and Mississippi found that less than 0.5 percent of respondents did not have either a photo ID or some other form of appropriate, credible ID. Since ID is required in many everyday activities such as: buying alcohol and cigarettes; registering a vehicle; entering commercial buildings; boarding a plane; applying for food stamps, medicare, medicaid and welfare; renting a car; buying a gun; renting a hotel room; picking up a prescription; and giving blood, virtually everyone has a means of proving their identity.

The public very sensibly and overwhelmingly favors voter ID requirements. In a poll conducted in June 2011, 75 percent of registered voters — including 77 percent of independents and 63 percent of Democrats — said that Americans should present photo ID before casting their ballots.

Sixteen states have enacted a photo-ID mandate, and another fifteen require voters to show some form of personal documentation, such as a utility bill or a bank statement (though not necessarily a photo ID). But laws such as these are in peril because of the Supreme Court's makeup.

The Crawford decision was decided on a 6-3 vote. To most people, that would appear to be a significant, bullet proof margin. Not if you know how the Supreme Court functions behind the scenes.

Justices on the Supreme Court frequently align their votes with the majority, even if they disagree wholeheartedly with the majority, when they know that they can't avoid a given result. They reason? They want to write the Court's opinion. You see, in order to write the opinion of the Court in any case a Justice must be on the majority. Writing the opinion allows the author to shape the language of the opinion. So even though a Justice may vehemently disagree with the outcome of a given case, aligning with the majority and writing the Court's opinion is an opportunity to minimize the damage, so to speak, by watering down the language in the opinion and constraining its breadth.

Sneaky, huh? And that's why we ended up with a 6-3 decision in Crawford instead of what ordinarily would have been a 5-4 decision.

In Crawford, Justice John Paul Stevens was one of the six votes on the Majority.  If you know anything about that rascal Stevens you know that in 2010 he was the longstanding leader of the Court's liberal wing. 

So why would a liberal like Stevens vote in favor of requiring photo ID's in order to vote? Certainly not because he thought the law was constitutional. It was simply because he wanted to write the Court's opinion, which he did. And he wrote the opinion in a much more restrained, narrow fashion than someone like, for example, conservative Justices Scalia or Alito would have.

Now, let's put Stevens' vote in the "nay" column where it belongs, accurately reflecting his views on the issue. That makes the actual margin for upholding the voter ID requirement a razor thin 5-4 vote: Alito, Scalia, Kennedy, Thomas, and Chief Justice John Roberts in the Majority; Stevens, Souter, Ginsburg, and Breyer in the Minority.

Next, let's look at the Court's makeup today to see what would happen if Crawford came before the Court on the current docket.

Since Crawford was decided, the very liberal Souter retired (in 2009) and was replaced by Justice Sonia Sotomayor (age 62), an equally liberal Justice. Stevens retired in 2010 and was replaced by Justice Elena Kagan (age 56, the youngest member of the Court and another liberal). Scalia, part of the Court's conservative firewall, passed away recently and has not been replaced on the Court as of yet.

That means the Court is currently comprised of three conservatives, four liberals, and a moderate who sides with liberals more often than not. Delving a bit deeper into the Court's makeup, the ultra-liberal Ginsburg is 83 years old and has been undergoing treatment for pancreatic cancer. Breyer, a liberal, is 77. Kennedy, the liberal "moderate", is 80. Conservatives Alito and Thomas are 66 and 68 respectively, and Chief Justice Roberts is 61.

What's my point? Whoever is the next President will definitely be filling the vacancy created by Scalia's death. That's one. There are two other Justices who will almost assuredly retire or will otherwise be replaced in the next four years - Ginsburg (83 and diagnosed with cancer) and Kennedy (80). Moreover, It would not stretch the imagination to believe that a fourth vacancy may arise in the next four years with Breyer in his late 70's.

That's no fewer than two to three vacancies, and possibly as many as four during the next President's term. If Hillary Clinton is elected, all of those vacancies would be filled with young ultra liberals, creating a lopsided liberal majority on the Court that could be in place for twenty to thirty years. If Donald Trump is elected, the Court vacancies would be filled with young conservatives creating the possibility of an equally long lasting, lopsided conservative majority.

There are several voter ID cases that have been recently decided by lower appellate courts. They will almost certainly be heard by the Supreme Court in the near future. Given the current makeup of the Court and with the immediate replacement of Scalia in line as soon as the next President takes office, whoever wins the White House in 2016 will determine the constitutionality of voter ID laws. If Hillary wins, her Scalia replacement will join the four liberal Justices to reverse Crawford on a 5-4 vote. A Trump presidency guarantees the exact opposite, a 5-4 re-affirmance of Crawford.

Further, as time passes during the next President's term, the Court will either move further to the left or right, depending on who is elected. That means many other issues such as abortion, gun control, immigration, contraception, and affirmative action will be decided by either a very liberal or very conservative Court.

For this reason, the upcoming election will dictate the future outcome of many, many constitutional issues. That makes it critically important for voters to prevent Hillary Clinton from holding office. Folks that are disenchanted with Donald Trump may very well decide the outcome of the election. Not voting because Trump was not your choice in the Republican primaries, or voting for a third party candidate, will will only cement a victory for Hillary.

Trump may not be the ideal candidate, nor our second, third, or maybe even fourth choice. But he's a far better option than Clinton. Think about what will happen to the Supreme Court and the long term effect of a liberal Court if the reins are handed to Hillary. Then hold your nose if you have to, put pull the lever for sane, rational Supreme Court decisions and vote for Trump. Your children will thank you.