But can I sue in federal court if I don’t have a Real ID?

Your Humble Blogger has been hocking about the idea of access to courts for a while, now. Well, I haven’t actually written about it so much as I’ve meant to write about it. Now that I’ve missed my chance to be topical on Crawford v. Marion County Election Bd., I’ll just chime in that it’s worth reading Grandma Got Carded by Dahlia Lithwick over at Slate (despite her rather lackluster 8 seconds on NPR on the case).

It’s important in many situations to keep in mind the difference between a bad law and an unconstitutional law. It’s important as well to keep in mind the difference between the text of the law and the actuality of it, but let’s leave that aside for now. In Crawford, the short version is that Indiana chose to pass a law mandating that citizens present state ID cards before being allowed to vote. This seems to be to be a bad law, but states are allowed to make bad laws of various kinds. The question before the court is whether it is an unconstitutional law, that is, whether the burden that may be placed on citizens to obtain ID cards before voting is great enough to put the State in a position to have to justify the burden under what level of State interest. If the burden is minimal, then the State only has to show it has an interest, while if the burden is either great or (potentially) discriminatory in nature, then the State needs to show a substantial or even a vital interest. And the Supreme Court decides how to balance those two.

Unless it doesn’t. It looks as if the Supreme Court is going to decide that they cannot possibly decide this case in the absence of a showing of actual harm. Everyone will have to wait until the law is put into effect, and then a person will have to be denied the franchise because he or she does not have sufficient ID, and only then, after the election, will the Court (it seems) look at the issue of whether the law is constitutional. Never mind that the policy is straightforward, unlike (for instance) a college admissions policy that may works in a system with many different inputs, and under which it may be difficult to show that the various weightings of various factors result in actual harm to an actual applicant, in the absence of those applicants. No, here the law appears to be: no ID, no vote. There is nowhere else that a citizen can go to exercise the franchise, there is nowhere else a citizen can go to get an ID, the conditions under which IDs are given is quite simple, and since everyone’s vote is equal, there is nothing to be gained from looking at a particular case rather than the general. Unless, as seems to be the case with the Roberts Court, you just want to make it harder for people to come to court.

Oh, and another thing. State identification cards (such as drivers licenses) are about to become Real IDs. More expensive, more time-consuming, more intimidating to some people. If you chat with someone about Real ID (which has its positives and negatives), remember that an individual who chooses not to get one not only gives up the opportunity to fly on an airplane, and (probably) the opportunity to drive a car, but also perhaps the right to vote.

Tolerabimus quod tolerare debemus,
-Vardibidian.