I’ve already blogged about the DOJ’s decision to support Indiana’s voter id law, the strictest one in the nation, through filing an amicus brief supporting Indiana. In the mail today I received a copy of a motion the SG has filed in Crawford asking for some of the oral argument time on the side of Indiana. The motion disingenuously argues that petitioners’ theory as to why the Indiana law is unconstituitonal “would cast serious doubt on the constitutionality of HAVA as well.” Anyone who has read the briefs of the parties and their amici would see that the briefs make it clear that most election laws, including even some voter identification laws, would not be unconstitutional under the tests set forth by the petitioners.
One interesting thing about the DOJ brief is that it methodically avoids discussion of the partisan nature of these voter id laws. As I’ve chronicled, these laws have been passed only with Republican support in state legislatures and have been opposed throughout the country by Democrats. There has also been a partisan split in terms of how judges decide these cases (also described in my Stanford piece) and this divide has now extended to the amicus briefs in the case itself: Democratic secretaries of state and Senators/members of Congress have filed briefs opposing the law, and Republican attorneys general and Senators/members of Congress, along with the Republican Bush administration, have filed briefs supporting the law. I do not see how the SG can claim to have an honest discussion in its brief representing the United States without noting this troubling partisan divide. [I make much of this divide in Part I of my amicus brief in the case.]
The DOJ brief is also two-faced in how it considers empirical evidence about the burdens of voter id laws. Paul Gronke has already noted that the DOJ brief fails to fairly represent the findings of the Alvarez, Bailey, Katz paper. But the DOJ brief also criticizes that paper and the Barreto et al. paper on the burden of voter id requirements on grounds that they have not yet been published in a peer review journal. The brief then turns around and relies heavily on Jeff Milyo’s paper, which also has not yet been published in a peer reviewed journal.