Transcript
STUART TAYLOR: Since time immemorial, Republicans have been accusing Democrats of trying to steal elections through fraud, and Democrats have been accusing Republicans of using anti-fraud laws as a pretext to discourage turn-out by poor people, racial minorities, old people and others who are seen as skewing Democratic, and this case is the first time lately that, and the first time clearly that the Supreme Court will have a shot at that issue. As Tom mentioned, the breakdown of the lower courts has been depressingly along party lines, to the point that I did a count of the 11 judges -- 12 judges in the Seventh Circuit U.S. Court of Appeals, including one, the 12th being the District judge; the division on this case was eight Republicans voting to uphold the Indiana law, photo ID law, three Democrats, and one Republican voting the other way. That one guy must not have been vetted very carefully. And the Michigan Supreme Court, in a somewhat similar case, divided 5/2 along party lines, five Republicans, two Democrats. And there is a discouraging expectation that we may see something similar in the Supreme Court.
. . .I think such a division would be very unfortunate, and I think there's two ways they could avoid it -- it comes down to two headlines: One headline might be, "justices split along party lines again," that's not a very fortunate headline I think in terms of the court's image. The other would be, "justices split the difference in voter ID case." I like that one better. After they split the difference two ways, the more Republican-friendly way would be to say, this is a facial attack, as Wendy said, and in lawyer jargon, that means the Democrats are asking that the law be struck down for all purposes, never used again, that's the end of it. And if they do that, that's the end of all similar proposals. And I think a more reasonable, and this might appeal to some Democrats, too, would be to say either we're not going to strike this law down on its face, but if any voters can show in any future case that they are personally disadvantaged by this and have been prevented from voting, then they can bring what's called an as applied challenge; in other words, we're not saying this law is valid for all purposes, we're just saying it's not invalid for all purposes, they could do that.
The second and more Democratic friendly way they could do it would be to say, let's -- we don't have a good record in this case, the Democrats have all kinds of studies, the Republicans have all kinds of studies, they mostly haven't been peer reviewed, they weren't in the record, there wasn't cross examination of the expert witnesses in the court below, we don't have a good enough record to pass judgment on an issue this important, send it back to the lower courts, run it through again, and then we'll think about it two years from now or one year from now. I would -- I'm not betting on one of those outcomes, but I guess I'm hoping for one of those outcomes.
View Full Transcript »