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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Another Reason To Fear a McCain Presidency

One of the big cookie-cutter trends in recent Republican governance at the state level has been the imposition of photo ID requirements for voting, rationalized by entirely unsubstantiated “concerns” about voter fraud. Today the U.S. Supreme Court, in a complicated 6-3 decision with multiple opinions, upheld one of the toughest photo ID laws, that of Indiana.
The basic impact of this decision is to place the burden of proof on those potentially affected by photo ID laws to demonstrate discriminatory impact, while relieving the state of any real obligation to demonstrate actual or potential “fraud.” Evidence of partisan intent in enacting such laws isn’t, apparently, relevant.
Rick Hasen of Election Law Blog has a full analysis, which emphasizes that the nature of the decision will encourage future litigation, and also notes the stubborn refusal of the Court to examine the implications of its own intervention in state election laws in Bush v. Gore.
But Hasen also has a comment about Justice Scalia’s concurring opinion in the current case that deserves some attention, particularly from those Democrats and independents who look with equanimity towards a McCain presidency:

Justice Scalia’s opinion (joined by Justices Alito and Thomas) concurring in the judgment is uncharacteristically brief. It reads the applicable constitutional standard differently, one that simply gives carte blanche to most states to pass laws with any kind of neutral justification offered. It is unclear to me…whether Justice Scalia would today uphold a poll tax like that struck down by the Court in Harper. Certainly Justice Scalia seems to think that if a law doesn’t burden most people, it should be upheld unless it imposes a “severe and overall” burden on the right to vote.

In this and many other constitutional areas, Scalia’s radicalism could well become Court doctrine if a Republican president gets to appoint a couple of Justices. For all of John McCain’s alleged “moderation” and “maverick” character, he’s never once departed from conservative orthodoxy on Supreme Court nominations. And here’s what he’s said about his own inclinations as a potential president:

On the issue of appointments to the Supreme Court, McCain mentioned that Sam Brownback would play an advisory role in helping decide who he should nominate for the Supreme Court. As models of who he would select, John McCain pointed to Justices Samuel Alito and Antonin Scalia.

More importantly, the “consolidation of the conservative base” that McCain has been undertaking since he nailed down the Republican presidential nomination depends very heavily on implicit and explicit promises to give conservatives an aggressively counter-revolutionary Court–the overriding goal, in particular, of Right To Lifers and other cultural conservatives. Scalia is their ideal Justice, and today’s suggestion that a Court made over in his image might look indifferently towards a reimposition of poll taxes is the kind of thing that pro-McCain Democrats and independents need to be reminded of constantly.

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