Crawford v. Marion County Election Board

553 U.S. 181 (2008)

[Plurality: Stevens, Roberts (C.J.), and Kennedy. Concurring: Scalia, Alito, and Thomas. Dissenting: Souter and Ginsburg, and Breyer.]

Justice Stevens announced the judgment of the Court and delivered an opinion in which The Chief Justice [Roberts] and Justice Kennedy join.

At issue in these cases is the constitutionality of an Indiana statute requiring citizens voting in person on election day, or casting a ballot in person at the office of the circuit court clerk prior to election day, to present photo identification issued by the government. Referred to as either the “Voter ID Law” or “SEA 483,” the statute applies to in-person voting at both primary and general elections. The requirement does not apply to absentee ballots submitted by mail, and the statute contains an exception for persons living and voting in a state licensed facility such as a nursing home. Ind. Code Ann. § 3-11-8-25.1(e). A voter who is indigent or has a religious objection to being photographed may cast a provisional ballot that will be counted only if she executes an appropriate affidavit before the circuit court clerk within 10 days following the election. A voter who has photo identification but is unable to present that identification on election day may file a provisional ballot that will be counted if she brings her photo identification to the circuit county clerk’s office within 10 days. No photo identification is required in order to register to vote, and the State offers free photo identification to qualified voters able to establish their residence and identity.

Promptly after the enactment of SEA 483 in 2005, the Indiana Democratic Party and the Marion County Democratic Central Committee (Democrats) filed suit . . . against the state officials responsible for its enforcement, seeking a judgment declaring the Voter ID Law invalid and enjoining its enforcement. . . .

The complaints in the consolidated cases allege that the new law substantially burdens the right to vote in violation of the 14th Amendment; that it is neither a necessary nor appropriate method of avoiding election fraud; and that it will arbitrarily disfranchise qualified voters who do not possess the required identification and will place an unjustified burden on those who cannot readily obtain such identification. . . .

[District Judge Barker] found that petitioners had “not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of SEA 483 or who will have his or her right to vote unduly burdened by its requirements.” . . . She estimated that as of 2005, when the statute was enacted, around 43,000 Indiana residents lacked a state issued driver’s license or identification card.

A divided panel of the Court of Appeals affirmed. It rejected the argument that the law should be judged by the same strict standard applicable to a poll tax because the burden on voters was offset by the benefit of reducing the risk of fraud. The dissenting judge, viewing the justification for the law as “hollow” — more precisely as “a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic” — would have applied a stricter standard, something he described as “close to ‘strict scrutiny light.'” (opinion of Evans, J.). In his view, the “law imposes an undue burden on a recognizable segment of potential eligible voters” and therefore violates their rights under the 1st and 14th Amendments to the Constitution. . . .

1. In Harper v. Virginia Bd. of Elections (1966), the Court held that Virginia could not condition the right to vote in a state election on the payment of a poll tax of $1.50. . . . Applying a stricter standard, we concluded that a State “violates the Equal Protection Clause of the 14th Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” We used the term “invidiously discriminate” to describe conduct prohibited under that standard. . . . Although the State’s justification for the tax was rational, it was invidious because it was irrelevant to the voter’s qualifications. . . .

[E]ven rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications. In Anderson v. Celebrezze (1983), however, we confirmed the general rule that “evenhanded restrictions that protect the integrity and reliability of the electoral process itself” are not invidious. . . . Rather than applying any “litmus test” . . . we concluded that a court must identify and evaluate the interests put forward by the State as justifications for the burden imposed by its rule. . . .

Thus, in Norman v. Reed (1992), after identifying the burden Illinois imposed on a political party’s access to the ballot, we “called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation,” and concluded that the “severe restriction” was not justified by a narrowly drawn state interest of compelling importance. Later, in Burdick v. Takushi (1992), we applied Anderson‘s standard for “‘reasonable, nondiscriminatory restrictions,'” and upheld Hawaii’s prohibition on write-in voting despite the fact that it prevented a significant number of “voters from participating in Hawaii elections in a meaningful manner.” . . .

However slight that burden may appear, as Harper demonstrates, it must be justified by relevant and legitimate state interests “sufficiently weighty to justify the limitation.” Norman. We therefore begin our analysis of the constitutionality of Indiana’s statute by focusing on those interests.

1. The State has identified several state interests that arguably justify the burdens that SEA 483 imposes on voters and potential voters. While petitioners argue that the statute was actually motivated by partisan concerns and dispute both the significance of the State’s interests and the magnitude of any real threat to those interests, they do not question the legitimacy of the interests the State has identified. . . .

The first is the interest in deterring and detecting voter fraud. The State has a valid interest in . . . improv[ing] and moderniz[ing] election procedures that . . . [are] antiquated. . . . The State also argues that it has a particular interest in preventing voter fraud in response to a problem that is in part the product of its own maladministration — namely, that Indiana’s voter registration rolls include a large number of names of persons who are either deceased or no longer live in Indiana. Finally, the State relies on its interest in safeguarding voter confidence. Each of these interests merits separate comment.

Election Modernization

Two recently enacted federal statutes have made it necessary for States to reexamine their election procedures. Both contain provisions consistent with a State’s choice to use government-issued photo identification as a relevant source of information concerning a citizen’s eligibility to vote. . . .

HAVA [The Help America Vote Act of 2002] also imposes new identification requirements for individuals registering to vote for the first time who submit their applications by mail. If the voter is casting his ballot in person, he must present local election officials with written identification, which may be either “a current and valid photo identification” or another form of documentation such as a bank statement or paycheck. § 15483(b)(2)(A). If the voter is voting by mail, he must include a copy of the identification with his ballot. . . . Finally, in a provision entitled “Fail-safe voting,” HAVA authorizes the casting of provisional ballots by challenged voters. § 15483(b)(2)(B). . . .

[N]either HAVA nor NVRA [National Voter Registration Act of 1993] required Indiana to enact SEA 483, but they do indicate that Congress believes that photo identification is one effective method of establishing a voter’s qualification to vote. . . . That conclusion is also supported by . . . the Commission on Federal Election Reform chaired by former President Jimmy Carter and former Secretary of State James A. Baker III. . . .

“The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important.”

Voter Fraud

The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation. . . . The record contains no evidence of any such fraud actually occurring in Indiana. . . . Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection. . . . It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented. . . . Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor — though perpetrated using absentee ballots and not in-person fraud — demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.

Safeguarding Voter Confidence

Finally, the State contends that it has an interest in protecting public confidence “in the integrity and legitimacy of representative government.” . . .

III. States employ different methods of identifying eligible voters at the polls. Some merely check off the names of registered voters who identify themselves; others require voters to present registration cards . . . some require voters to sign their names so their signatures can be compared with those on file; and in recent years an increasing number of States have relied primarily on photo identification. A photo identification requirement imposes some burdens on voters that other methods of identification do not share. For example, a voter may lose his photo identification, may have his wallet stolen on the way to the polls, or may not resemble the photo in the identification because he recently grew a beard. Burdens of that sort arising from life’s vagaries, however, are neither so serious nor so frequent as to raise any question about the constitutionality of SEA 483. . . .

The burdens that are relevant to the issue before us are those imposed on persons who are eligible to vote but do not possess a current photo identification that complies with . . . SEA 483. The fact that most voters already possess a valid driver’s license, or some other form of acceptable identification, would not save the statute under our reasoning in Harper, if the State required voters to pay a tax or a fee to obtain a new photo identification. [T]he photo identification cards issued by Indiana’s BMV are . . . free. For most voters . . . 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, or even represent a significant increase over the usual burdens of voting.[1] . . .

[E]vidence in the record . . . however, indicates that a somewhat heavier burden may be placed on a limited number of persons. They include elderly persons born out-of-state, who may have difficulty obtaining a birth certificate; persons who because of economic or other personal limitations may find it difficult either to secure a copy of their birth certificate or to assemble the other required documentation to obtain a state-issued identification; homeless persons; and persons with a religious objection to being photographed. . . . [T]he new identification requirement may have imposed a special burden on their right to vote.

The severity of that burden is . . . mitigated by the fact that, . . . voters without photo identification may cast provisional ballots. . . . To do so, however, they must travel to the circuit court clerk’s office within 10 days to execute the required affidavit. . . . [E]ven assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek in this litigation.

1. IV. Given the fact that petitioners . . . [are] seeking relief that would invalidate the statute in all its applications, they bear a heavy burden of persuasion. . . .

Petitioners ask this Court, in effect, to perform a unique balancing analysis that looks specifically at a small number of voters who may experience a special burden under the statute. . . . Petitioners urge us to ask whether the State’s interests justify the burden imposed on voters who cannot afford or obtain a birth certificate and who must make a second trip to the circuit court clerk’s office after voting. But on the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified. . . .

The record says virtually nothing about the difficulties faced by either indigent voters or voters with religious objections to being photographed. . . . From this limited evidence we do not know the magnitude of the impact SEA 483 will have on indigent voters in Indiana. . . .

In sum, on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes “excessively burdensome requirements” on any class of voters. See Storer v. Brown (1974). . . . When we consider only the statute’s broad application to all Indiana voters we conclude that it “imposes only a limited burden on voters’ rights.” Burdick. The “‘precise interests'” advanced by the State are therefore sufficient to defeat petitioners’ facial challenge to SEA 483.

Finally, we note that petitioners have not demonstrated that the proper remedy — even assuming an unjustified burden on some voters — would be to invalidate the entire statute. When evaluating a neutral, nondiscriminatory regulation of voting procedure, “[w]e must keep in mind that “‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.'” Ayotte v. Planned Parenthood of Northern New Eng. (2006).

483. . . . [P]etitioners stress the fact that all of the Republicans in the General Assembly voted in favor of SEA 483 and the Democrats were unanimous in opposing it. In her opinion rejecting petitioners’ facial challenge, Judge Barker noted that the litigation was the result of a partisan dispute that had “spilled out of the state house into the courts.” It is fair to infer that partisan considerations may have played a significant role in the decision to enact SEA 483. . . .

But if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. . . . The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the integrity and reliability of the electoral process.”

The judgment of the Court of Appeals is affirmed. It is so ordered.

Justice Scalia, joined by Thomas, and Alito, concurring in the judgment.

The lead opinion . . . holds that petitioners have not assembled evidence to show that the special burden is severe enough to warrant strict scrutiny. . . . [B]ut for the sake of clarity and finality . . . I prefer to decide these cases on the grounds . . . that the burden at issue is minimal and justified.

To evaluate a law respecting the right to vote . . . we use the approach set out in Burdick v. Takushi (1992). This calls for application of a deferential “important regulatory interests” standard for nonsevere, nondiscriminatory restrictions, reserving strict scrutiny for laws that severely restrict the right to vote. . . .

[W]hat petitioners view as the law’s several light and heavy burdens are no more than the different impacts of the single burden that the law uniformly imposes on all voters. To vote in person in Indiana, everyone must . . . present a photo identification that can be obtained for free. The State draws no classifications, let alone discriminatory ones. . . . Nor are voters who already have photo identifications exempted from the burden, since those voters must maintain the accuracy of . . . the identifications, renew them . . . and replace them if they are lost.

The Indiana photo-identification law is a generally applicable, nondiscriminatory voting regulation, and our precedents refute the view that individual impacts are relevant to determining the severity of the burden it imposes. . . .

[W]eighing the burden of a nondiscriminatory voting law upon each voter and concomitantly requiring exceptions for vulnerable voters would effectively turn back decades of equal-protection jurisprudence. . . . [W]ithout proof of discriminatory intent, a generally applicable law with disparate impact is not unconstitutional. See, e.g., Washington v. Davis (1976). The 14th Amendment does not regard neutral laws as invidious ones, even when their burdens purportedly fall disproportionately on a protected class. A fortiori it does not do so when, as here, the classes complaining of disparate impact are not even protected.[2] See Harris v. McRae (1980) (poverty); Cleburne v. Cleburne Living Center, Inc. (1985) (disability).

Even if I thought that stare decisis did not foreclose adopting an individual-focused approach, I would reject it as an original matter. . . .

That sort of detailed judicial supervision of the election process would flout the Constitution’s express commitment of the task to the States. See Art. I, § 4. It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class. . . .

Justice Souter, joined by Ginsburg, dissenting in the judgment.

Indiana’s “Voter ID Law” threatens to impose nontrivial burdens on the voting right of tens of thousands of the State’s citizens, and a significant percentage of those individuals are likely to be deterred from voting. The statute is unconstitutional under the balancing standard of Burdick v. Takushi (1992): a State may not burden the right to vote merely by invoking abstract interests, . . . or even compelling [interests], but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. The State has made no such justification here. . . .

1. Voting-rights cases raise two competing interests, the one side being the fundamental right to vote. Burdick (“It is beyond cavil that ‘voting is of the most fundamental significance under our constitutional structure'” (quoting Illinois Bd. of Elections v. Socialist Workers Party, (1979)); . . . The Judiciary is obliged to train a skeptical eye on any qualification of that right. . . .

As against the unfettered right, however, lies the “[c]ommon sense, as well as constitutional law . . . that government must play an active role in structuring elections; . . . if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.'”

Given the legitimacy of interests on both sides, we have avoided pre-set levels of scrutiny in favor of a sliding-scale balancing analysis: the scrutiny varies with the effect of the regulation at issue. . . . Thus, in Burdick:

“A court . . . must weigh ‘the character and magnitude of the asserted injury to the rights’ . . . against ‘the precise interests put forward by the State’ . . . taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.'”

[The lead opinion does not] insist enough on the hard facts that our standard of review demands.

1. Under Burdick, “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens 1st and 14th Amendment rights,” upon an assessment of the “character and magnitude of the asserted [threatened] injury,” and an estimate of the number of voters likely to be affected.

II-A. The first set of burdens shown in these cases is the travel costs and fees necessary to get one of the limited variety of federal or state photo identifications needed to cast a regular ballot under the Voter ID Law. . . . Poor, old, and disabled voters who do not drive a car, however, may find the trip prohibitive,[3] witness the fact that the BMV has far fewer license branches in each county than there are voting precincts. . . .

The burden of traveling to a more distant BMV officer rather than a conveniently located polling place is probably serious for many of the individuals who lack photo identification. They almost certainly will not own cars, and public transportation in Indiana is fairly limited. According to . . . Indiana’s Department of Transportation, . . . 21 of Indiana’s 92 counties have no public transportation system at all, and as of 2000, nearly 1 in every 10 voters lived within 1 of these 21 counties. Among the counties with some public system . . . only 18 . . . offer countywide public transportation. . . .

Although making voters travel farther than what is convenient for most and possible for some does not amount to a “severe” burden under Burdick, that is no reason to ignore the burden altogether. It translates into an obvious economic cost (whether in work time lost, or . . . paying for transportation). . . .

For those voters who can afford the round trip, a second financial hurdle appears: in order to get photo identification for the first time, they need to present “‘a birth certificate, a certificate of naturalization, U.S. veterans photo identification, U.S. military photo identification, or a U.S. passport.'” . . . Indiana counties charge anywhere from $3 to $12 for a birth certificate (and in some other States the fee is significantly higher). . . . As with the travel costs, these fees are far from shocking on their face, but in the Burdick analysis it matters that both the travel costs and the fees are disproportionately heavy for, and thus disproportionately likely to deter, the poor, the old, and the immobile. . . .

II-B. . . . The law allows voters who lack the necessary ID to sign the poll book and cast a provisional ballot. . . . [T]o have the provisional ballot counted, a voter must then appear in person before the circuit court clerk or county election board within 10 days of the election, to sign an affidavit attesting to indigency or religious objection to being photographed. . . . Unlike the trip to the BMV . . . a county has only one county seat. Forcing these people to travel to the county seat every time they try to vote is particularly onerous for the reason noted already, that most counties in Indiana either lack public transportation or offer only limited coverage. . . .

[T]he indigency exception by definition offers no relief to those voters who do not consider themselves (or would not be considered) indigent but as a practical matter would find it hard, for nonfinancial reasons, to get the required ID (most obviously the disabled).

1. Indiana’s Voter ID Law thus threatens to impose serious burdens on the voting right, even if not “severe” ones, and the next question under Burdick is whether the number of individuals likely to be affected is significant as well. . . .

The State, in fact, shows no discomfort with the District Court’s finding that an “estimated 43,000 individuals”(about 1% of the State’s voting-age population) lack a qualifying ID. [T]he District Court’s observ[ed] that “several factors . . . suggest the percentage of Indiana’s voting age population with photo identification is actually lower than 99%,” a suggestion in line with national surveys showing roughly 6–10% of voting-age Americans without a state-issued photo-identification card. We have been offered no reason to think that Indiana does a substantially better job of distributing IDs than other States.[4] . . .

Tens of thousands of voting-age residents lack the necessary photo identification. A large proportion of them are likely to be in bad shape economically (“No doubt most people who don’t have photo ID are low on the economic ladder”) (“[W]e would ignore reality were we not to recognize that this system falls with unequal weight on voters . . . according to their economic status”).[5] . . .

And the fact that Indiana’s photo identification requirement is one of the most restrictive in the country, . . . makes a critical examination of the State’s claims all the more in order. . . .

III. . . . [H]aving found the Voter ID Law burdens far from trivial, I have to make a rigorous assessment of “‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ [and] ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.'” Burdick (quoting Anderson).

First, the generalities raised by the State have to be shaved down to the precise “aspect[s of claimed interests] addressed by the law at issue.” California Democratic Party v. Jones (2000) (scrutiny of state interests “is not to be made in the abstract, by asking whether [the interests] are highly significant values; but rather by asking whether the aspect of [those interests] addressed by the law at issue is highly significant”). And even if the State can show particularized interests addressed by the law, those interests are subject to further discount depending on “the extent to which [they] make it necessary to burden the plaintiff’s rights.”

As the lead opinion sees it, the State has offered four related concerns that suffice to justify the Voter ID Law: modernizing election procedures, combating voter fraud, addressing the consequences of the State’s bloated voter rolls, and protecting public confidence in the integrity of the electoral process. On closer look, however, it appears that the first two (which are really just one) can claim modest weight at best, and the latter two if anything weaken the State’s case.

III-A. . . . [I]f a proposed modernization . . . were put forward as change for change’s sake, a State could not justify any appreciable burden on the right to vote . . . useless technology has no constitutional value. . . . The State says that it adopted the ID law principally to combat voter fraud, and it is this claim, not the slogan of “election modernization,” that warrants attention.

III-A-1. There is no denying the abstract importance, the compelling nature, of combating voter fraud. (“A State indisputably has a compelling interest in preserving the integrity of its election process”). . . .

To begin with, requiring a voter to show photo identification before casting a regular ballot addresses only one form of voter fraud: in-person voter impersonation. . . .

And even the State’s interest in deterring a voter from showing up at the polls and claiming to be someone he is not must, . . . be discounted for the fact that the State has not come across a single instance of in-person voter impersonation fraud in all of Indiana’s history. . . .

The State responds to the want of evidence with the assertion that in-person voter impersonation fraud is hard to detect. . . . [T]o know whether difficulty in detection accounts for the lack of evidence one at least has to ask whether in-person voter impersonation is (or would be) relatively harder to ferret out than other kinds of fraud (e.g., by absentee ballot) which the State has had no trouble documenting. The answer seems to be no; there is reason to think that “impersonation of voters is . . . the most likely type of fraud to be discovered.”

It simply is not worth it for individuals acting alone to commit in-person voter impersonation, which is relatively ineffectual for the foolish few who may commit it. . . . J. Levitt, The Truth about Voter Fraud 7 (2007) (“[F]raud by individual voters is a singularly foolish and ineffective way to attempt to win an election. Each act of voter fraud in connection with a federal election risks five years in prison and a $10,000 fine, in addition to any state penalties. In return, it yields at most one incremental vote. That single extra vote is simply not worth the price”). . . .

III-A-2. . . . The State argues . . . it is enough for the State to show that “opportunities [for such fraud] are transparently obvious in elections without identification checks.” . . . [B]ut Indiana elections before the Voter ID Law [did include identification systems], “[t]ime-tested systems were in place to detect in-person voter impersonation fraud before the challenged statute.” . . . These included hiring poll workers who were precinct residents familiar with the neighborhood, and making signature comparisons. . . .

[P]hoto identification is itself hardly a failsafe against impersonation. Indiana knows this, and that is why in 2007 the State began to issue redesigned driver’s licenses with digital water marking. . . . [The Voter ID Law] does no more than assure that any in-person voter fraud will take place with fake IDs, not attempted signature forgery.

Despite all this, I will readily stipulate that a State has an interest in responding to the risk of in-person voter impersonation. But the ultimate valuation of the . . . [State’s interest] has to take account of evidence against it as well as legislative judgments for it (certainly when the law is one of the most restrictive of its kind . . . it would be unreasonable to accord this assumed state interest more than very modest significance.)[6]

III-A-3. . . . A phase-in period would have given the State time to distribute its newly designed licenses, and to make a genuine effort to get them to individuals in need, and a period for transition is exactly what the Commission on Federal Election Reform, headed by former President Carter and former Secretary of State Baker, recommended in its report. See Building Confidence in U. S. Elections § 2.5 (Sept. 2005), App. 136, 140 (hereinafter Carter-Baker Report) . . . The former President and former Secretary of State explained this recommendation in an op-ed essay:

“Yes, we are concerned about the approximately 12 percent of citizens who lack a driver’s license. So we proposed that states finally assume the responsibility to seek out citizens to both register voters and provide them with free ID’s that meet federal standards. States should open new offices, use social service agencies and deploy mobile offices to register voters.” Carter & Baker, Voting Reform is in the Cards, N. Y. Times, Sept. 23, 2005, p.A19. [T]he 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. . . .

III-B. The lead opinion agrees with the State that “the inflation of its voter rolls is further support for its enactment of” the Voter ID Law. . . .

The State is simply trying to take advantage of its own wrong: . . . The claim that the State has an interest in addressing a symptom of the problem (alleged impersonation) rather than the problem itself (the negligently maintained bloated rolls) is . . . self-defeating; it shows that the State has no justifiable need to burden the right to vote as it does, and it suggests that the State is not as serious about combating fraud as it claims to be.

The State’s final justification, its interest in safeguarding voter confidence, similarly collapses. . . . The answer to this problem is not to burden the right to vote, but to end the official negligence.

III-C. Without a shred of evidence that in-person voter impersonation is a problem in the State, much less a crisis, Indiana has adopted one of the most restrictive photo identification requirements in the country. The State recognizes that tens of thousands of qualified voters lack the necessary federally issued or state-issued identification, but it insists on implementing the requirement immediately, without allowing a transition period . . . if there is any waning of confidence in the administration of elections it probably owes more to the State’s violation of federal election law than to any imposters at the polling places. It is impossible to say, on this record, that the State’s interest in adopting its . . . photo identification requirement has been shown to outweigh the serious burdens it imposes on the right to vote.

If more were needed to condemn this law, our own precedent would provide it, for the calculation revealed in the Indiana statute crosses a line when it targets the poor and the weak. Cf. Anderson (1983) (“[I]t is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status”). . . . The State’s requirements . . . 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.

Justice Breyer, dissenting in the judgment. . . .

In determining whether this statute violates the Federal Constitution, I would balance the voting-related interests that the statute affects, asking “whether the statute burdens any one such interest in a manner out of proportion to the statute’s salutary effects upon the others (perhaps, but not necessarily, because of the existence of a clearly superior, less restrictive alternative).” Applying this standard, I believe the statute is unconstitutional because it imposes a disproportionate burden upon those eligible voters who lack a driver’s license or other statutorily valid form of photo ID. . . .

The record nowhere provides a convincing reason why Indiana’s photo ID requirement must impose greater burdens than those of other States, or than the Carter-Baker Commission recommended nationwide. . . .

The Commission’s findings, taken together with the considerations set forth in Part II of Justice Stevens’ opinion, and Part II of Justice Souter’s dissenting opinion, lead me to the conclusion that while the Constitution does not in general forbid Indiana from enacting a photo ID requirement, this statute imposes a disproportionate burden upon those without valid photo IDs. For these reasons, I dissent.

Bush v. Gore: Background

            While Bush v. Gore (2000) can be discussed on many levels, our attention will focus on the Court’s use of the Equal Protection Clause. Discussion relating to the Article II issues surrounding the Florida Supreme Court’s interpretation of their state statute have been omitted. For a balanced overview of the case, see Symposium, Bush v. Gore, 68 U. Chi. L. Rev. 613 (Summer, 2001).

Questions

1. How relevant are the citations to Reynolds and Harper?
2. What level of scrutiny is the Court using? Why?
3. Did Bush v. Gore present a legal issue or a political question? What benefits or harms, if any, would have arisen from the House of Representatives deciding the election rather than the Supreme Court? What harm or benefit, if any, flows from the Supreme Court’s decision to decide the election?

^[1]. To obtain a photo identification card a person must present at least one “primary” document, which can be a birth certificate, certificate of naturalization, U. S. veterans photo identification, U. S. military photo identification, or a U. S. passport. Ind. Admin. Code, tit. 140, § 7-4-3 (2008). Indiana, like most States, charges a fee for obtaining a copy of one’s birth certificate. This fee varies by county and is currently between $3 and $12. See Indiana State Department of Health Web page, http://www.in.gov/isdh/bdcertifs/lhdfees/toc.htm. Some States charge substantially more.

 

^[2]. A number of our early right to vote decisions, purporting to rely upon the Equal Protection Clause, strictly scrutinized non-discriminatory voting laws requiring the payment of fees. See, e.g., Harper v. Virginia Bd. of Elections (1966) (poll tax); Bullock v. Carter (1972) (ballot-access fee); Lubin v. Panish (1974) (ballot-access fee). To the extent those decisions continue to stand for the principle that Burdick does not already encompass, it suffices to note that we have never held that legislatures must calibrate all election laws, even those totally unrelated to money, for their impacts on poor voters or must otherwise accommodate wealth disparities.

 

^[3]. The State asserts that the elderly and disabled are adequately accommodated through their option to cast absentee ballots, and so any burdens on them are irrelevant. But as petitioners’ and amici AARP and the National Senior Citizens Law Center point out, there are crucial differences between the absentee and regular ballot. Voting by absentee ballot leaves an individual without the possibility of receiving assistance from poll workers, and thus increases the likelihood of confusion and error. More seriously, as the Supreme Court of Indiana has recognized, Indiana law “treats absentee voters differently from the way it treats Election Day voters,” in the important sense that “an absentee ballot may not be recounted in situations where clerical error by an election officer rendered it invalid.” The State itself notes that “election officials routinely reject absentee ballots on suspicion of forgery.” The record indicates that voters in Indiana are not unaware of these risks. One elderly affiant in the District Court testified: “I don’t trust [the absentee] system. . . . Because a lot of soldiers vote like that and their votes wasn’t counted in the last election according to what I read, absentee.” App. 209 (deposition of David Harrison).

It was one thing (and a commendable thing) for the State to make absentee voting available to the elderly and disabled; but it is quite another to suggest that, because the more convenient but less reliable absentee ballot is available, the State may freely deprive the elderly and disabled of the option of voting in person.

 

^[4]. Although the lead opinion expresses confidence that the percentage of voters without the necessary photo ID will steadily decrease and suggests that the number may already have dropped, there is reason to be less sanguine. See ACLU Sues To Halt License Revocation, Fort Wayne J. Gazette, Feb. 9, 2008, p. 3C (“The American Civil Liberties Union is suing the state to prevent the possible revocation of up to 56,000 driver’s licenses that don’t match information in a Social Security database. Many of the mismatches were created by typographical errors or by people getting married and changing their last names, the [BMV] said last week when it announced it had sent warning letters to about 206,000 people in Indiana”).

 

^[5]. Studies in other States suggest that the burdens of an ID requirement may also fall disproportionately upon racial minorities. See Overton, Voter Identification, 105 Mich. L. Rev. 631, 659 (2007) (“In 1994, the U. S. Department of Justice found that African-Americans in Louisiana were four to five times less likely than white residents to have government-sanctioned photo identification”); id., at 659–660 (describing June 2005 study by the Employment and Training Institute at the University of Wisconsin-Milwaukee, which found that while 17% of voting-age whites lacked a valid driver’s license, 55% of black males and 49% of black females were unlicensed, and 46% of Latino males and 59% of Latino females were similarly unlicensed).

 

^[6]. On such flimsy evidence of fraud, it would also ignore the lessons of history to grant the State’s interest more than modest weight, as the interest in combating voter fraud has too often served as a cover for unnecessarily restrictive electoral rules. See F. Ogden, The Poll Tax in the South 9 (1958) (“In Arkansas and Texas, the argument was frequently presented that a poll tax payment prerequisite would purify elections by preventing repeaters and floaters from voting”); see also Brief for Historians and Other Scholars as Amici Curiae 4–15 (detailing abuses); R. Hayduk, Gatekeepers to the Franchise: Shaping Election Administration in New York 36 (2005) (“In both historical and contemporary contexts certain groups have had an interest in alleging fraud and thereby shaping electoral rules and practices in a restrictive direction, and other groups have had an opposite interest”).