The United States Supreme Court has rejected a challenge to Indiana’s voter ID law. I wouldn’t, however, go so far as to say the Court upheld the law. It was a plurality decision with 6 justices voting to reject the challenge and 3 justices dissenting. Justice Stephens, Chief Justice Roberts, and Justice Kennedy were of the view that the law was not unconstitutional on its face and, the evidence presented by the Plaintiffs did not establish that the law was unconstitutional as it was applied. They left open the possibility, however, that the law could be applied in an unconstitutional manner. Justices Scalia, Alito, and Thomas were predictably more enthusiastic about the law. They basically characterize the burden imposed by requiring a non-expired, state or federal picture identification card, for in-person voting as being too minimal to present a Constitutional question.
Justices Souter, Ginsberg, and Breyer dissented. I found Breyer’s dissent to be interesting. He essentially agreed with Stephens’ plurality reasoning, but disagreed with his conclusion with respect to the weight to be given to the evidence in the record.
For one thing, an Indiana nondriver, most likely to be poor, elderly, or disabled, will find it difficult and expensive to travel to the Bureau of Motor Vehicles, particularly if he or she resides in one of the many Indiana counties lacking a public transportation system. See ante, at 6–7 (SOUTER, J., dissenting) (noting that out of Indiana’s 92 counties, 21 have no public transportation system at all and 32 others restrict public transportation to regional county service). For another, many of these individuals may be uncertain about how to obtain the underlying documentation, usually a passport or a birth certificate, upon which the statute insists. And some may find the costs associated with these documents unduly burdensome (up to $12 for a copy of a birth certificate; up to $100 for a passport). By way of comparison, this Court previously found unconstitutionally burdensome a poll tax of $1.50 (less than $10 today, inflation-adjusted). See Harper v. Virginia Bd. of Elections, 383 U. S. 663, 664 n. 1, 666 (1966); ante, at 30 (SOUTER, J., dissenting). Further, Indiana’s exception for voters who cannot afford this cost imposes its own burden: a postelection trip to the county clerk or county election board to sign an indigency affidavit after each election. See ante, at 8–10 (same).
He notes Florida’s approach wherein other forms of ID are acceptable – employee ID, credit or debit card, student ID, retirement center ID, neighborhood association ID, or public assistance ID.
The Souter, Ginsberg dissent is stronger. It notes that Indiana’s purported interest in combating voter fraud really doesn’t get beyond the point of an abstract notion. First, the law in question only addresses in-person fraud which hasn’t been documented as a problem. Absentee voter fraud, with which Indiana has had a documented problem, is not addressed. Nor does it address the problem of voters being registered in more than one place, ballot miscounting, or a number of other potential problems. In fact, there is very little evidence that voter impersonation is a problem anywhere. This may be because it’s hard to detect, but it’s more likely because it’s a crime that has to be done in the open and which is unlikely to have an effect because it would be tough to do in an organized fashion. The dissent faults the legislature for lack of a phase in period – recommended in a national report on the subject and recognized by the plurality opinion. That report recommended that the states actively seek out those without identification and actively attempt to provide it. Although the state claims to have relied on this report, “the State conspicuously rejected the Report’s phase-in recommendation aimed at reducing the burdens on the right to vote, and just as conspicuously fails even to try to explain why.” Finally, the dissent critiques the needlessly cumbersome post-election process. “Nothing about the State’s interest in fighting voter fraud justifies this requirement of a post-election trip to the county seat instead of some verification process at the polling places.” The State argued that requiring verification at the polls would cause a back-up at the polling places. But, this undercuts its premise that very, very few people are being disenfranchised by the law.
The State’s requirements here, that people without cars travel to a motor vehicle registry and that the poor who fail to do that get to their county seats within 10 days of every election, likewise translate into unjustified economic burdens uncomfortably close to the outright $1.50 fee we struck down 42 years ago. Like that fee, the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise.
I might feel different except that it appears that Justice Souter has some difficulty with making valid inferences from data/statistics.
Just because there are ‘x’ number of citizens without “valid photo I.D.”, it doesn’t equate to “there are then ‘x’ number of disenfranchised voters’. The number of 43,000 tossed around isn’t even statistically significant. That total number doesn’t even qualify as 1% of the estimated 2006 Indiana population 18 years old and older.
In fact, one cannot infer just how many voters might find the I.D. law “burdensome”. If it were easy to determine, the plaintiffs should have provided the information. They couldn’t.
The problem is that both sides are guesing. It’s my amateur opinion that the plaintiffs failed in several areas that they should have been better prepared to attack or defend. Result? Waste of taxpayer monies.
If anyone was questioning the importance of a Democrat in the White House the next four years, your post should settle it. The next President is likely to appoint one or more members of the Supreme Court – that is, if the current court doesn’t overturn his or her election [again]. We cannot handle more of the anti-democratic (small “d”) sentiments of the Bush court.
Karen’s right. It’s more than just voting for President. The eventual winner will likely also place several new Justices on the SCOTUS.
Voters on both sides on the fence should keep that in mind.
I take it as a blessing to learn that 21 of our counties reject the notion that the transportation of an individual is the responsibility of someone other than that individual… or at least haven’t gotten around to it yet.
Of course, the curse is to learn of the other 71.
And to varangianguard’s point, I’m disenfranchised by the closed primary process, and have no doubt whatsoever that more Hoosiers are disenfranchised by that process than will be by the lack of valid ID.
Waste of taxpayer dollars for sure, and grandstanding by both parties, also for sure.
We also need to be looking for a repeal of this law in the State Legislature. Its all quite a farce, regardless of the ability of the law to stand up in the Supreme Court. They’ve had their fun, now lets get to focusing on voter participation, not disenfranchisement.
I’m not a lawyer, so maybe that’s why I can’t see how the Supremes would not find it intolerable to keep even one legitimate voter out of the polls when not even one case of voter impersonation fraud has ever existed.
Pat, you’re not serious? The word “never” doesn’t relate to voter fraud. Maybe you should spend some time finding out about it.
Mike, you’re not disenfranchised during the primaries. You choose not to participate in either the Republican or Democratic soirees. Your party could hold their own, if they really wanted to. But, I agree that there are many more Libertarians than people truly disenfranchised by voter I.D.
Pat…you say “when not even one case of voter impersonation fraud has ever existed.”
How could we ever know that? No one has ever checked before, have they? Now we can check.
Varangianguard- No, we (being the Libertarian Party) cannot hold primaries, because we are prohibited from doing so by law. In order for a party to be allowed to participate, their candidate for Secretary of State must gain 10% of the vote. As the most recent L candidate for SOS, I failed to reach that figure.
As for crossing over, we do have the Chair of the Indiana Democrats on record stating that he and his party will be on the lookout for crossover voters who do not meet the letter of the law. Doug has posted on this previously. And to a point, it isn’t as though I can’t vote. I can and will- I’ll walk in, sign the book, and walk out. Oh boy, I’ll have voted. Yay.
But, I spoke not only of Libertarians, though. I speak on this issue for the voters who consider themselves Greens, Socialists, Progressives, Communists, Constitution Party, Reform Party, or the myriad other parties out there- and those independents who know full well of themselves that they are not Ds or Rs. Altogether, these voters are many. They may not be literally disenfranchised by the rules, but the end result is the same.
That’s why I call all this grandstanding by both parties. They are glad to exclude many of us- so long as it happens on terms acceptable to them.
I do not believe the argument that this law is unduly burdensome on the right to vote is a particularly strong one. Because the fundamental right to vote is whats involved here, you can certainly make the argument that we ought to weigh the issue of placing burdens, impediments or any level of inconvenience on the exercise of that right very carefully. Nonetheless its a tough argument to make that asking of people to show photo ID as we do in order for them to do a whole slew of other everyday activities is so unduly burdensome as to rise to the level of a constitutional violation of the basic rights of citizens. Moreover, the solution is pretty simple which is that people should do something they ought to do in any event which is to obtain legal ID. For those of us who worry that people will be disenfranchised by this, mobilizing ourselves to make sure that the vast majority of the community is empowered with ID to cast their vote is what we should be doing. Legislatively, there is no reason that the law cannot be amended to make its provisions regarding provisional ballots and mechanisms for obtaining ID easier and more convenient.
Having said all that, lets also keep it real. This law was intended to suppress votes. It was championed by the republicans, ostensibly to prevent voter impersonation fraud, a crime which has never been committed and which as a potential corruptive influence on elections is really a fairly remote possibility. As a practical matter, you are not going to get enough people to participate in a conspiracy to affect an election by impersonating voters which would have any appreciable effect. So the republicans fought hard and we spent state dollars to defend a law that doesn’t solve a real problem. That means that it was really intended for other purposes and that purpose was to suppress a class of voters who are typically expected to fall into the democratic column.
Now that the Supremes have upheld it, we can expect to see a slew of similar laws around the country that are put forward by republicans ostensibly to prevent voter impersonation, but as this is an imaginary problem, are really being passed for their effect of suppressing some voters. I will not be surprised to see other types of restrictions or requirements passed which use other types of potential vote fraud as justification. The result within a few years may be a slew of restrictions which when viewed as a whole operate to suppress a significant number of voters. This kind of rigging of democracy is quite frankly, evil. We as republicans should stand for the expansion of the franchise, not its suppression. This is the type of dubious legislative action which keeps me a reluctant republican.
Aaron, let me preface by saying that I personally don’t think that the Indiana law is perfect.
But, to you, and to anybody else around here who claims that voter impersonation fraud has never occurred, that is just about the single most ignorant and false claim I have heard all year.
I cannot even begin to give you any more credence by taking the time to correct you beyond that. If you really believe that incredible, and false, claim, then you are beyond having a rational discussion with.
Does no one learn anything about US and/or Indiana electoral history around here anymore?!?
It’s really tough to prove a negative, so it’s probably a stretch to say that voter impersonation at a polling place has *never* happened, but if the proponents of this law knew of any incidents, you can bet they would have come forth with some examples. There is certainly no evidence of any organized efforts of voter impersonation at a polling place that would’ve had any measurable impact on an election in Indiana.
Constitutional or not, I don’t think there is any credible evidence that the stated motives for this law are anything more than a pretext.
I certainly have. And I’m always willing to learn more. Tell me about the history of voter impersonation at the polling place. I’m familiar with buying votes, miscounting votes, and absentee ballot problems – none of which are addressed by this law; but I’m unfamiliar with the history of voter impersonation at the polling place.
The concept of voter ID requirement isn’t the issue. Of course,only those legally qualified to vote should vote. The issue is how will the law be enforced and how easy will it be to acquire what is needed to vote? And will what is needed be clearly defined before a person enters the polling place? The ID law can be used as a means to prevent people from voting in some areas.
Every poll worker who judges someone’s ID validity is ‘government control’ and partisan politics being what it is,this is where a ruthless, partisan ‘grandma’ can steal away someone’s right to vote.
If government passes a law restricting access to polls, then government has an obligation to set up a process for everyone to smoothly acquire what is needed. Setting up booths in shopping centers and community centers working with community leaders would be one logical suggestion.
I personally have long mistrusted conservative and libertraian type government because it throws the weak to the dogs and outlaws victimization as a concept.Liberal type government has pitfalls also,so government is government and must be watched in a bi-partisan way.
So fine, everyone should have an ID,but Democratic voters are the easiest ones to purge wholesale from the poll lists, and individually, because democrat areas tend to be easily indentifiable on a map by address.
It is the law that everyone can cast a provisional vote and later prove their vote is legal,but there are many cases where this is not encouraged and not even mentioned when people are turned away( according to recent news accounts)
I just think a voter ID requirement will be just another tool used by political party zealots to keep certain targeted people from voting,and it will be minorties and poor who will again be the victims of government,local government control in this case.
My mother,now almost 90,who has never voted democratic in her life, but was often a Democratic election judge,and if that’s the case in other areas,I’m thinking not everyone as partisan as my dear mother was also as fairminded and honest as she was in her election judge duties.
There is an egregious example that I know of. But, it’s from 1915. I need to peruse some Federal case law books to find the whole text. But, like Tammany Hall, those involved used “repeaters” to cast around 2,000 fraudulent votes, in multiple elections (among other things).
What tripped them up? Greed. They worked their magic during a Congressional election, which qualified for Federal intervention. It was so bad the New York Times covered the whole thing. 75-100 people went to prison on Federal charges. It was so corrupt that those guilty parties had already stonewalled lower efforts to bring them to justice. A Mayor, a sheriff, the police chief, one or more assistant chiefs, a judge, and many more were involved.
Voter fraud exists because it is human nature. Just because it is rarely proven in court doesn’t make it non-existent. That just makes it rarely proven in court. Two different things.
Well, let’s not get carried away talking about “voter fraud” generally. That’s not at all what this law was about. It specifically targeted voter impersonation at the polling place, nothing else.
Doug, wouldn’t voter impersonation be the same as voter fraud? Also, when you break this down to it’s simplest form, a picture proves who you are, a signature does not.
Of possible interest:
Commentary on Obama and the Indiana law
Presenting photo I.D. would theoretically make it more difficult to serial vote.
I interpret the use of “repeaters” to serial vote as impersonation fraud. Fictitious identities can be created and registered to vote. A precinct has 180 residents of voting age (by census). Same precinct has 220 registered voters. Hmmmm. A person shows up on election day claiming some ficitious identity as their own. They vote. They have just successfully impersonated being a real voter of that precinct.
By requiring voters to obtain a photo I.D. with some identification stipulations, this kind of potentiality is minimized.
I don’t claim the Indiana law is especially well crafted. It misses out on addressing some important other methodologies for potential fraud. It may actually disenfranchise some voters (which I see as potentially maximized at less than 1%, if everybody of age actually voted, which isn’t very likely).
But, claiming that impersonation fraud is non-existent is wrong and false. Nobody is doing themselves a favor by bringing that up over and over again.
I.D. requirements aren’t “burdensome” or unnecessary. The rules are different and an impediment for L-A-Z-Y partisan political operatives. Indiana changed a rule. Oh my! The horror (see DST horror as well).
This is actually a huge opportunity for partisan Democratic operatives to gain public relations points with their traditional constituencies, and to encourage participation in the electoral process. An effort could be made to take advantage of the I.D. requirements by helping people get what they need. Facilitators could be trained to help overcome the problems of lost records, other state bureaucracies, and the like. Carpe Diem! PR coup!
But, no….they’d rather just whine, piss and moan about how old ladies are being discomfited by having to track down some proof about being a citizen. Something anybody in the 21st century should have anyway. And, there is that sneaking suspicion that lingers like a road-killed skunk that Democrats want to keep their voting “options” open.
Excuse me if I find it impossible to feel sorry for any of them.
It’s a subset of voter fraud, but not one that presents itself as a priority for corrective legislation. Let’s keep in mind some of the amendments that were rejected by the law’s proponents:
Also rejected were suggestions for allowing more forms of identification — reliable enough to prevent the sort of en masse serial voting varangiangard describes but more easily available to people who don’t necessarily have good access to transportation or the ability to navigate the government bureaucracy.
Really, a picture doesn’t prove who you are unless there is some reliable way for poll workers to be certain about who created the picture and under what circumstances. But, you’re right, a picture probably requires more effort to forge than a signature.
But, seriously, if you wanted to steal an election, would you really do it by sending people to the polls to vote under assumed identities? Maybe I lack imagination, but I just don’t see how that’s practical. Personally, I’d try going after the vote tabulations. Hacking a computer seems easier than sending hundreds or thousands of people to polling places to impersonate someone else’s identity.
Doug said: “But, seriously, if you wanted to steal an election, would you really do it by sending people to the polls to vote under assumed identities?”
But this is Indiana. We don’t like change. The old ways are the best ways. We are too lazy to do it any other way. Lack of imagination.
The BMV photo I.D. requires some proof you are who you say you are. It isn’t just a pretty picture.
Signing an affadavit saying you’re not cheating? Now, whoever would bother tracking that down? That’s just plain funny.
The main thing is, enforcement takes place in the polling place itself. I don’t know if anybody engaged in this dialogue has ever been a poll watcher or not, but I have, and I can tell you a few things that can generally be found:
Most polling places struggle to fully staff with members of the minority party, where minority party means the underdog in a heavily dominated precinct.
Most irregularities I have heard of, and all of the irregularities I have seen, have taken place in a precinct where one party heavily dominates and the minority party is weakly staffing the polling place, if at all.
The enforcement is done by the staffers at the polling place. Majority is going to rule here.
Republicans passed this law with the feeling that voter impersonation happens- but where? At the most heavily Democratic precincts… So, re-read the previous two paragraphs again.
Now, Doug’s on to something important here. The way I have seen people try to steal votes is not by pumping numbers up, as would happen with voter impersonation. It is by shaving numbers down. I witnessed this at Crispus Attucks HS in Indy.
A handful of Republican straight-ticket ballots were discarded there. This was with the paper ballot used in 2003. It was easy to discern, because there are only three spaces for straight-ticket voting, D-R-L, and most in this precinct went straight D.
Shaving a few, and I mean just a few, 3-4 per precinct, has no effect on the precinct outcome whatsoever. If a precinct is expected to go 80-15-5, then who’s going to challenge if it goes 82-13-5? But add that up over the myriad precincts, and you can begin to affect races for Congress, or for statewide office. (I blogged this immediately after I witnessed it, in November 2003.)
There is great discretion available to the polling place officials. This voter ID thing is really looking far away in the wrong place. And of course, this is nothing to say about computer hacking and the lack of VVPAT machines (voter verifiable paper audit trail).
I agree that the law could have been better crafted and could have been more encompassing, Mike. Lack of imagination on the part of the crafters, most likely.
And yes, in this past election some in Terre Haute and Muncie keenly felt the movement of just a few votes.
See, that’s where I disagree pretty strongly. Unless the crafters can plausibly show a reason for believing that in-person voter impersonation was one of the forms of election fraud that most urgently needed to be addressed, I don’t see the basis for attributing the poor crafting to “lack of imagination.” To me, the more plausible explanation is that the concern over this particular form of election fraud is a pretext.
The problem is this, in my opinion. The detractors believe that they have presented a cogent and compelling argument that Indiana’s voter I.D. law negatively impacts a certain segment of Indiana’s electorate. In fact, they have not yet been compelling, convincing or much of anything else besides self-deluded in their own opinions.
It’s not just me. The plaintiffs here couldn’t even convince Justice Stevens. For all the “there is no fraud” talk, there also was no long list of credible witnesses presented who could say “I’m disenfranchised”.
Doug, you’re the attorney. Isn’t there something about “burden of proof”? Wouldn’t this case have been different had the plaintiffs been able to put forth some credible evidence that this law was intended to disenfranchise certain segments of the electorate?
Frankly, I’m disappointed that the plaintiffs proceeded with this case, having what they had to present. If this wasn’t hopes, dreams, smoke and mirrors, the plaintiffs would have had a chance of winning. As far as I could tell, they were hoping for a “Simpson” verdict. In my opinion, that is pathetic excuse for a case presentation.
Like so much else, it seemed just an attempt to game the system. If I were the judge, and now you know one reason why I’m not one, I would have tossed their lame behinds out of my court for bringing such a weak case before me.
I see where you believe that the crafters of the law hoped to disenfranchise certain voters. Unfortunately, your “plausible” is based completely upon anecdotal observation, as is my opinion. There is really very little probability that the crafters could be encouraged to truthfully tell their reasons for creating this piece of legislation (and you probably don’t believe in waterboarding). You and I can only rely upon our own experiences and observations. It appears that neither of us can present the other with an argument to cause one or the other to change their mind.
The elderly, poor, sick, etc. have to have ID.
Even to do their banking, Social Security, Medicare, everything. In my and most doctors offices an ID is required and has been for years. If they don’t have an ID there is something illegal going on! Get real people!
The supreme court rocks!!!!!!!!!!
Your exclamation points are very convincing. You gonna log in as “Allen” to give a little “Amen brother!”?