Crawford v. Marion County; Indiana Democratic Party v. Rokita

These two cases, which originally were to be argued as separate cases before the Supreme Court, have now been consolidated--they will be argued together. They both concern one of the truly "hot-button" issues on the Court's calendar for the year: the constitutionality of Indiana's "photo-identification" voter law. This essay will tell you about that law and the "photo-identification" movement in the country. As I tell the story of this kind of law, I will bring out the two arguments that are used by people on either side of the issue: (1) that the law is meant to combat fraud and therefore serves a compelling state interest (Republicans, mostly, make this argument); or (2) the law has the effect of disenfranchising thousands of people who either cannot afford or for whom the hassle is too great to get a government-issued photo-identification card (Democrats, mostly, make this argument). It is hard to see how the Court's decision can escape resting on one or the other argument, despite the Court's desire to try to project an "above politics" image. Let's explain the Indiana law and the "photo-identification movement."

The Indiana Statute

In 2005, Indiana enacted a law that for the first time requires photo "proof of identification" in order to vote at the polls (Ind. Code sec. 3-11-8-25.1(b)). Prior to this law, registered voters in IN needed only to sign in at the polls, where their signatures would be compared with those on file with the election authorities. This law, which has been called the most stringent such law in the country, does not allow the voter to choose from various types of photo identification s/he may show. What the law comes down to is that the most likely form of identification is a driver's license or an identification card issued by the Indiana Bureau of Motor Vehicles.

The ostensible reason for passage of the law was to guard against election fraud. In the wake of the close and hotly-contested Presidential election of 2000, and to a lesser extend of 2004, many state legislators thought it best to try to nip the potential fraud problem in the bud by requiring this type of ID. The other side, however, argues that Indiana, in particular, has never prosecuted a case of voter fraud in its nearly 200 years of existence as a state, and that therefore the requirement to show such an ID is nothing more than a sort of "fig leaf" to disenfranchise thousands of people who can't or won't go to a BMV to get the requisite identification. This side also argues that the law will have a disproportionate effect on seniors, many of whom don't drive anymore (or shouldn't!) and therefore don't have ready government-issued driver's licenses or IDs. For example, the Indiana AARP conducted a survey in 2005 which noted that 3% of Indiana registered voters over 60 do not have either a valid license or an ID card. Those who argued in favor of the law, however, say that the relatively small number of people affected is not a significant enough burden placed on people in order to secure the undoubted benefit of "clean" elections.

The Photo-ID "Movement"

But Indiana's law is only the tip of a very large and growing iceberg regarding efforts to "tighten up" election procedures in America. This section will not give an exhaustive list of what other states are doing--but it will give you the "flow" in America now on this issue.

Indiana and Georgia are the only two states that require individuals seeking to vote in-person to present photo identification. Like Indiana, Georgia first enacted a photo identification requirement in 2005. Act No. 53, § 59, 2005 Ga. Laws 295. Georgia amended its code and regulations in 2006 to provide that any registered voter without a photo identification card will be issued one free by his or her county board of registrars based on his or her voter registration application, no further documentation being required.

Four states have statutes stating photo identification is required, but each have a fail safe provision for voters without photo identification. Louisiana, Michigan, and South Dakota statutes provide if an individual does not possess photo identification he or she may sign an affidavit at the polls and then vote by regular ballot. Florida voters without acceptable identification are allowed to vote a provisional ballot which is counted if the county canvassing board determines that the signature on the provisional ballot certificate matches the signature on the voter's registration form.

The official website for the State of Hawaii notes voters must have a picture identification. See Voting in Hawaii, http:// www.hawaii.gov/elections/voters/votehi.htm. However, the Hawaii statute only states that a voter “shall provide identification if so requested by a precinct official.” Finally, in Ohio, a voter without the requisite identification is permitted to cast a provisional ballot after signing an affidavit attesting to his or her identity and eligibility to vote; again, though, the burden is on the county election officials to determine the voter's eligibility, and no further actions are required of the voter. [These examples are taken from the Petitioner's Brief]

Thoughts on the Law--and Conclusion

The decision of the Court may be driven by these partisan considerations (fraud vs. access), though you can be sure that the opinion will be worded in turgid legal prose. But, what any good lawyer will tell you is that how you frame the discussion determines how the case will end up. So, if this case is framed in terms of access to voting, and voting has been held to be among the most fundamental rights an American has, then your outcome is pretty clear--the burden of the IN law is probably too great and it violates a person's First Amendment Speech and Fourteenth Amendmant Due Process rights. If, however, the Court frames the issue in terms of a state's rights to police its own voting procedures, then the analysis is different. A state should be given maximum leeway to "police" fraud within its borders. How do you think the Court will come down? I think it will uphold the IN law, probably by a 6-3 margin.

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Crawford v. Marion County Elections Indiana Dem. Party v. Rokita

Crawford v. Marion County Elections
Indiana Dem. Party v. Rokita