Crawford v. Marion County (IN) Elections Board: April 28, 2008 Decision

The Court's decision, handed down today, was a 6-3 decision to uphold the IN law. I also said in my essay that the crucial factor in determining how the Court would conclude would be how the Court looked at the "access" and "fraud" issues of requiring voters to display photo IDs before voting. As the summary of the Court's argument, gleaned from the Syllabus of the opinion, shows, this was precisely what was at issue.

Justice Stevens, writing for only three Justices, announced the opinion of the Court. He laid out the background as follows:

"After Indiana enacted an election law (SEA 483) requiring citizens voting in person to present government-issued photo identification, petitioners filed separate suits challenging the law's constitutionality. Following discovery, the District Court granted respondents summary judgment, finding the evidence in the record insufficient to support a facial attack on the statute's validity. In affirming, the Seventh Circuit declined to judge the law by the strict standard set for poll taxes in Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169, finding the burden on voters offset by the benefit of reducing the risk of fraud."

Justice Stevens began by declaring that one of the principles arising from Harper and later decisions was that "even handed restrictions" protecting the "integrity and reliability of the electoral process itself" are permissible. The IN law had to be examined in the context of that principle.

The Heart of the Argument

The focus of the opinion was on analyzing Indiana's interests in promulgating such a law. Here is a summary of the argument made by Justice Stevens:

"Each of Indiana's asserted interests is unquestionably relevant to its interest in protecting the integrity and reliability of the electoral process. The first is the interest in deterring and detecting voter fraud. Indiana has a valid interest in participating in a nationwide effort to improve and modernize election procedures criticized as antiquated and inefficient. Indiana also claims a particular interest in preventing voter fraud in response to the problem of voter registration rolls with a large number of names of persons who are either deceased or no longer live in Indiana. While the record contains no evidence that the fraud SEA 483 addresses-in-person voter impersonation at polling places-has actually occurred in Indiana, such fraud has occurred in other parts of the country, and Indiana's own experience with voter fraud in a 2003 mayoral primary demonstrates a real risk that voter fraud could affect a close election's outcome. There is no question about the legitimacy or importance of a State's interest in counting only eligible voters' votes. Finally, Indiana's interest in protecting public confidence in elections, while closely related to its interest in preventing voter fraud, has independent significance, because such confidence encourages citizen participation in the democratic process."

Well, but what about the burdens placed on IN residents to get a valid photo ID?

"The relevant burdens here are those imposed on eligible voters who lack photo identification cards that comply with SEA 483. Because Indiana's cards are free, the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters' right to vote, or represent a significant increase over the usual burdens of voting. The severity of the somewhat heavier burden that may be placed on a limited number of persons- e.g., elderly persons born out-of-state, who may have difficulty obtaining a birth certificate-is mitigated by the fact that eligible voters without photo identification may cast provisional ballots that will be counted if they execute the required affidavit at the circuit court clerk's office. Even 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."

Anytime a party brings a facial challenge to a statute's validity, that challenge faces huge hurdles. The party must show that the statute is invalid in all its applications. Such a hurdle couldn't be overcome by the petitioners. The three concurring Justices (Scalia, Thomas, Alito) would only have emphasized the minimal nature of the burdens on the voters of IN.

In Dissent

The three dissenters focused on the "nontrivial burdens" which the IN law would lay on voters. The essence of their opinion can summarized in Justice Souter's words:

"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, see ante, at 15-16. The statute is unconstitutional under the balancing standard of Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992): a State may not burden the right to vote merely by invoking abstract interests, be they legitimate, ... or even compelling, 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, and as to some aspects of its law, it has hardly even tried."

Conclusion

I live in Oregon, where we vote by mail. Most states have recoiled from that process in horror, but we don't seem to have problems of voter fraud here. Maybe a few more states will be tempted to come over to Oregon's approach after this decision...

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