In Crawford v. Marion County Election Board, 553 U.S. 181 ( 2008 ), the US Supreme Court upheld Indiana's law requiring citizens who vote in person to present government-issued photographic identification. A majority found it a rational and neutral means for promoting the integrity of the electoral process. The Court rejected facial constitutional challenges to Indiana's voter identification requirement on the grounds that it violated the right to vote, acted as a poll tax, or intentionally discriminated against the elderly, racial minorities, or the poor.
Indiana's Senate Enrolled Act (SEA) No. 483, passed in 2005 on a party-line vote, requires citizens voting in person to present a valid form of photo ID issued by the state or federal government. Those without identification can cast a provisional ballot to be counted if the person presents valid photo ID at the county election board within ten days. Exempt from the photo ID requirement are those who vote by absentee ballot, sign an affidavit stating they are indigent, have religious objections to being photographed, or who live in a nursing home where they vote. The bill requires state Bureau of Motor Vehicles (BMV) offices to provide a free photo ID card to any person who presents a birth certificate and proof of address.
William Crawford, a Democratic state representative, and the Indiana Democratic Party challenged the law. In Crawford v. Marion County Election Board, 472 F.3d 949 ( 7th Cir., 2007 ), a federal district court upheld Indiana's photo ID requirement, and on appeal the Seventh Circuit affirmed 2–1. Court of Appeals Judge Richard Posner admitted that those affected “are more likely to vote for Democratic than Republican candidates” (472 F.3d at 951) but found in the record “no plaintiffs whom the law will deter from voting” (472 F.3d at 952). The “right to vote is on both sides of the ledger” (472 F.3d at 952), and the state's interest in combating fraud justifies “preventive action” against “voter impersonation” (472 F.3d at 953). In dissent, Judge Terence T. Evans called the law “a not-toothinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic” (472 F.3d at 954).
On appeal to the US Supreme Court, the Indiana law was upheld, with six justices voting to do so but producing no majority opinion. Justice John Paul Stevens announced the judgment of the Court, joined by Chief Justice John G. Roberts and Justice Anthony M. Kennedy. “It is fair to infer,” Stevens wrote, “that partisan considerations may have played a significant role” (553 U.S. at 203) in passing this law. Nevertheless, Indiana has legitimate interests in combating voter fraud, in modernizing election procedures in light of federal legislation including the National Voter Registration Act of 1993 and the Help America Vote Act of 2002, and in protecting voter confidence in the outcome of elections. Because Indiana provides free photo identification, “for most voters who need them, the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote” (553 U.S. at 198). Although the burden is greater on those born out of state or who cannot easily acquire a copy of the birth certificate for economic or other reasons, “voters without photo identification may cast provisional ballots that will ultimately be counted” (553 U.S. at 199).
Stevens emphasized deficiencies in the plaintiff's case. “The evidence in the record does not provide us with the number of registered voters without photo identification,” he writes. “The record says virtually nothing about the difficulties faced by either indigent voters or voters with religious objections to being photographed.” Against these omissions, “the state interests identified … are both neutral and sufficiently strong to require us to reject petitioners' facial attack on the statute” (553 U.S. at 204).
Three justices dissented. Justice David H. Souter's opinion, joined by Justice Ruth Bader Ginsburg, argued that the state must provide a “particular, factual showing that threats to its interests outweigh the particular impediments it has imposed” (553 U.S. at 209). Souter emphasized the “burdens” of travel to the license branch to obtain a free photo ID card, the costs of acquiring a birth certificate or a passport, and the costs of casting a provisional ballot and traveling to the county voting office after the election. “There is accordingly no reason to doubt that a significant number of state residents will be discouraged or disabled from voting,” Souter wrote (553 U.S. at 221). Indiana's requirement—“one of the most restrictive in the country” —does not justify these burdens, as “the State has not come across a single instance of in-person voter impersonation fraud in all of Indiana's history” (553 U.S. at 226). Souter concludes that the photo ID law “targets the poor and the weak,” and “imposes an unreasonable and irrelevant burden on voters who are poor and old” (553 U.S. at 237). Justice Stephen G. Breyer's dissent emphasized the costs to citizens of complying with Indiana's law. “While the Constitution does not in general forbid Indiana from enacting a photo ID requirement,” he said, the “significantly harsher” requirements of Indiana's law place “a disproportionate burden upon those without valid photo IDs” (553 U.S. at 240-241).
According to the National Conference of State Legislatures, thirty-four states have passed laws requiring some form of voter identification at the polls, and as of October 13, 2014, thirty-one of these laws remain in force. Nine states have laws similar to Indiana's requiring photo identification. Some states, such as North Carolina, have enacted stricter voter identification laws that go into effect after the 2014 elections, while others, such as Pennsylvania and Arkansas, have seen voter identification laws struck down by courts. In 2013 and 2014 further legislation concerning voter identification was introduced in more than thirty states.
SEE ALSO Regulation of State Elections ; Voting Rights, Constitutional .
Bravin, Jess. “Voter-ID Laws Worry Jurist: Retired Supreme Court Justice Says Poor, Minorities Could Be Affected.” Wall Street Journal, October 17, 2013.
Crawford v. Marion County Election Board. 472 F.3d 949 (7th Cir. 2007).
Fosmoe, Margaret. “State: Nuns Knew They Needed Picture ID.” South Bend Tribune, May 8, 2008. http://articles.southbendtribune.com/2008-05-08/news/26892364_1_polling-place-indiana-s-voter-id-law-state-todd-rokita .
National Conference of State Legislatures. “Voter Identification Requirements/Voter ID Laws.” http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx .
Posner, Richard A. Reflections on Judging. Cambridge, MA: Harvard University Press, 2013.
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