Justice Kennedy's Comments and Questions in the Voter ID Case:
The transcript of this morning's argument in the Voter ID case has been released, and is available here. As I read the transcript, Justice Kennedy had no questions for Indiana and only one question for Paul Clement, about whether as-applied challenges could be brought before an election. In contrast, Justice Kennedy had several skeptical questions addressed to Paul Smith, counsel for Crawford. You can read the transcript for the context, but here are Kennedy's significant questions/comments for Smith:
JUSTICE KENNEDY: I just think it's hard to confine your rationale if you say that any association could sue. If it says, you know, there are people that if they knew what we were doing, if they knew this problem they would really want us to sue on their behalf, I don't know if I'm going to confine your rationale.Thanks to Howard for the before-the-SCT-website-even-added-a-link link. (Okay, so the URL is always predictable, but it's still helpful.)
JUSTICE KENNEDY: But clearly you answer all of those questions that you've just posed, that you've just responded with, "no". So then your answer to Justice Alito should be no.
JUSTICE KENNEDY: Although that leads to the next question, is whether or not there are ways in which the -- the central purpose of this law can be preserved but it could be less stringent. But I'd like you to respond to both of those things.
JUSTICE KENNEDY: That wasn't -- that wasn't the problem I had with your answer to that question. You posed a number of questions to Justice Alito, or a number of responses, but to each one of those your own answer in the brief was no, and therefore your question -- the answer to Justice Alito's question should be no, there is no system that you know of that can impose a photo ID.
JUSTICE KENNEDY: And even so is, there anything that prohibits the State from confirming the validity of the registration at the polling place?
JUSTICE KENNEDY: You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?