Wednesday, November 30, 2016


Two paths for voter ID.

We used to complain about indeterminacy in the courts. on topics such as voter ID, political speech, politicxl gerrymanding,and so forth. We've got a bigger problem now.
The incoming Trump administration seems unfettered by either a clear understanding of the limited powers of the presidency, or traditional GOP views of limited government.
Bill Clinton and Barack Obama were each constitutional law professors, who understood where the lines were, although each tested those lines. Trump doesn't read books.
So it is likely that the Trump administration will overreach, and attempt things previously considered unconstitutional, both in voter ID and other topics. So it will be up to courts and congress to operate as checks and balances, or not.

We've seen this sort of thing before. BCRA, McCain-Feingold, was an overreach of congressional power. (I was pleased to see Feingold lose again this fall.) While BCRA was intitially upheld in McConnell v FEC, it died a death of a dozen cuts, most especially Citizens United. It is possible that President Bush acted wisely in signing the bill, while holding reservations about its constitutionality, just in order to set up cases such as CU.

Obamacare was seen by many as an over-reach of legislative and executive power. While it was upheld in the courts, the decision brought a resurgence to the idea of limits to the commerce clause.
I expect we will see this factor play out in years to come. I digress.

So I expect we will see executive overreach. What remains to be seen is how congress and the courts will respond. We have lived in a century of the imperial presidency. Occasionally the other branches assert themselves, as with Watergate and Clinton's impeachment. US v Nixon, Clinton v Jones.

Trump is expected to fill at least one seat on the Supreme Court, restoring a conservative majority. Perhaps he will choose someone from the movement that dare not speak its name, the constitution in exile folks over at the Federalist Society. Additionally, there are other vacant judgeships to fill.

So maybe he will appoint cronies - is it Abe Fortas I'm thinking of? - who will prtect Trump. But maybe he will appoint movement conservatives who once in office will assert the separation of powers and the power of judicial review.

How does this apply to voter ID? As a movement conservative, I am in a tiny minority in opposing voter ID on conservative grounds.
One path is that a newly constituted Supreme Court could find that voter ID, as it has played out over the past decade, places a severe burden (Norman v Reed) or severe-ish (Anderson v Celbrezze balancing test) on First Amendment rights, triggering heightened scrutiny. Or they could rely on equal protection precedents such as Harper v Virginia Board. Or they could find authority in the 24th Amendment, which both textually and inthe case law prohibits such practices.

Perhaps more likely, with a Trump justice department on the side of Voter ID, maybe even with some role for Hans Van Spakovsky, federal courts will tend to say voter ID is just fine, maybe with some dilution of particularly egregious practices.

Time will tell.

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