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October 09, 2007

From SCOTUS to POTUS; A Roundup

By Eric Reed

On October 2nd, the Law School chapters of the American Constitution Society and the Federalist Society hosted the annual Supreme Court Roundup. This year, professors Joan Larsen, Richard Primus, and Christina Whitman joined moderator Dean Evan Caminker in discussing the Court’s upcoming docket.

Professor Joan Larsen began the Roundup by addressing the challenge to voter identification law that the Court will hear this term. Larsen described the Indiana law that requires residents to present a state-issued photo ID in order to vote as “the most restrictive voter ID law in the country.”

Proponents of the law argue that requiring voters to show a state-issued ID will prevent voter fraud. Opponents point out that there is no evidence that significant voter fraud has occurred in Indiana. Opponents also feel that the law is an unconstitutional infringement on the right to vote. They argue that the law was intended to, and in fact does, disenfranchise large, predominantly Democratic voting blocs.

“These laws look fishy,” Larsen conceded. “All of them are passed by Republican legislatures. There isn’t a single Democratic legislature which has passed a voter ID law….”

Potential voters who don’t have a state issued ID are not allowed to vote, but the law does require the state to provide free IDs to residents who can’t afford them.

“This isn’t, at least technically, a poll tax,” Larsen said, “so we’re not talking about money. But we are talking about time.”

As long as opponents of the voter ID law lack proof that the Indiana state legislature enacted the law for a reason besides preventing voter fraud, Larsen does not expect the Supreme Court to strike it down. “There’s no split here. All the Courts of Appeals have upheld voter identification laws,” Larsen noted. “The Court has never suggested that the states or Congress must make it maximally convenient [to vote]. If they were to apply something akin to strict scrutiny here, I think they would open the floodgates.” Instead, Larsen expects that the Court took the case in order to further clear up voting issues in advance of the 2008 elections.

The talk continued with Professor Richard Primus, a man immortalized in turkey and horseradish at Zingerman’s Deli. Primus spoke about a suit brought by political parties in the state of Washington against the state for forcing candidates to compete in what is known as a “blanket primary.”

Primus began by detailing three types of primaries. In a closed primary, only members of the relevant political party may vote. This ensures, for example, that only members of the Green Party have the opportunity to nominate or eliminate perennial candidate Ralph Nader before the general election begins. In an open primary, a voter may choose to vote in any one party’s primary. The third system, blanket primaries, throws the doors wide open, allowing anyone to vote for any candidate and holding all primaries simultaneously. Voters in a blanket primary are not restricted to voting only in one party’s primary like they are in an open primary.

“States tend to want [blanket primaries],” Primus said, explaining that blanket primaries usually reward moderate candidates. Because non-party members can vote, blanket primaries dilute the votes of hard-line partisans and prevent them from controlling elections as much as they do in closed primaries.

But political parties, particularly small ones, oppose blanket primaries. “Every election has some small chance of randomness in the voting,” Primus said, explaining that around one percent of voters mark ballots mistakenly or at random. Because small party candidates often receive one percent or less of the votes in the crowded closed primary, “that randomness has a chance to swamp your election,” explained Primus.

Political parties are challenging Washington’s closet primary law based on free speech and freedom of association grounds, arguing that the blanket primary substantially impacts their ability to elect a representative candidate.

“At a deeper level,” Primus said, “what’s at stake is the idea of states as laboratories of democracy.” The case, he continued, raises the fundamental question of just how much latitude states get in structuring their own elections, and at what point the courts will say that the experiment has gone too far. The question, for this term of the court, remains to be answered.

The final remarks of the afternoon came from Professor Christina Whitman, speaking on one of the most politically charged issues of the day: the Guantanamo Bay detentions.

“One of the nice things about the Bush administration is that we have issues of presidential power coming up every term,” Whitman joked during her opening remarks. The upcoming case on this issue, she explained, once again addresses the limits of presidential power over detainees of the United States, as well as the power and limits of the federal courts.

“The question has to do with the access to judicial review of [the detainees’] status,” Whitman said, “whether or not they’re enemy combatants.”

“One of the interesting things about this case,” Whitman said, “is that the court originally denied cert[iorari] back in April.” This earlier denial means that at least two justices have changed their opinion of the case, according to Whitman, as it requires one more justice to reconsider a case (five) than to grant certiorari (four).

“This is a remarkable change,” she said. “I think there was a previous case, but not in modern times.”

It’s important to remember, Whitman said, that the Supreme Court will adjudicate only the issue of jurisdiction. The central question is whether Congress can strip federal courts of their power to hear habeas corpus cases where the defendant is not an American citizen and is not being held in the United States. “The only question here is whether the court can hear the challenge,” Whitman said, emphasizing that the case is not addressing the constitutionality of holding the prisoners.

Whitman and Caminker agreed that the court is unlikely to decide whether the detention itself is constitutional. “I think they’re going to try to make [the holding] as narrow as possible,” Caminker said.