High Court Hears Voter ID Case

MADELEINE BRAND, host:

Back now with DAY TO DAY, and to arguments before the Supreme Court today that could affect the November presidential election. The justices are looking at a voter ID law in Indiana. People in that state need to show photo identification before voting. Supporters say the measure stops voter fraud. Opponents say it prevent some people from voting.

Dahlia Lithwick is legal analyst for DAY TO DAY and for Slate.com. And she was at the arguments this morning and joins us now.

And, Dahlia, what does the Indiana laws say exactly?

Ms. DAHLIA LITHWICK (Slate.com): It's actually the most restrictive voter ID law in the country right now, Madeleine. And effectively it says that a voter must present current government issued photo ID - usually a driver's license or a passport - unless they live in a nursing home or want to vote by absentee ballot. Now, there's all sorts of provisions for - if you're indigent, whatever - but essentially certainly people who are poorer, who are elderly, who don't have drivers licenses, are going to be someone burdened by this law.

BRAND: And was that essentially the argument that opponents of the law made today before the court?

Ms. LITHWICK: Well, they said something more profound. Underlying that they said there's no reason for this law, that this sort of massive bugaboo that the Republicans have created, of vote fraud, it's a myth, and that there's not a single case in Indiana of someone coming to the polls pretending to be someone else. So why are we doing this? Why create sort of burdensome new regulations to solve a problem that doesn't exist?

BRAND: And supporters say we're doing this because?

Ms. LITHWICK: Well, they say, yes, there is vote fraud. It's just very, very hard to detect. It's subtle. You know, it doesn't show up. These cases are not prosecuted, but it's out there. And then they went on to say, look, it's just not all that burdensome to have to go get your drivers license or a passport, you know. So you take a bus for a couple of minutes and you get this paperwork.

And then they made a point that I think held a lot of sway with the court, which was this is just not the right kind of challenge, that nobody has yet been hurt by it. Instead of waiting for an election and having all sorts of people burdened by this law and coming forward, they tried to do it in advance of that. And so there's no hard numbers.

Essentially, what the Bush administration argued and Indiana argued today was wait a couple of years and let this class of people - if there's a bunch of people who really are burdened, let them bring a real challenge and we'll strike down that part of the law that burdens them, rather than striking the whole law down in advance.

BRAND: So Dahlia, if they let it stand, if they let the Indiana law stand, will it have an effect on the election in November?

Ms. LITHWICK: Well, I certainly think that both sides concede, Madeleine, that if this law is allowed to stand and laws like it around the country, there are going to be some voters - most likely Democrats - who are going to find it harder to vote. Whether those - you know, as the Republican side argued in this case, whether those handful of voters would have swung the election is yet to be seen. But I think that both sides concede that at least some people are going to have a hard time voting in November if laws like this are allowed to stand.

BRAND: Dahlia Lithwick, legal analyst for Slate.com as well as for us here at DAY TO DAY. Dahlia, thank you.

Ms. LITHWICK: My pleasure, Madeleine.

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