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UPDATE: SCOTUS upholds Indiana voter ID law

Michael W. Hoskins
January 1, 2008
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A week before Hoosier voters head to the polls, the nation's highest court has upheld Indiana's law requiring voters to show identification before casting a ballot.

The Supreme Court of the United States issued its decision, this morning in the pair of consolidated Hoosier cases William Crawford, et al. v. Marion County Election Board, et al., No. 07-21, and Indiana Democratic Party, et al. v. Todd Rokita, No. 07-25. The decision rejected the constitutional challenge to the strictest voter ID law in the nation and dismissed any uncertainty that may have existed going into the May 6 primary. In a 6-3 decision, the court didn't have a clear majority and only three wanted a broad interpretation defending the state's almost three-year-old law. The result is what election law scholars had predicted might happen because of limited evidence of voter burden or voter fraud in the record at the lower court levels, though it paves the way for more questions on this issue in the future. "This is by no means a ringing endorsement of voter ID laws," said Ken Falk, legal director for the American Civil Liberties Union of Indiana, which lost its constitutional challenge to the Hoosier statute but finds encouragement in the justices' writing. "Yes, we lost, and we're disappointed. But what's interesting is the plurality opinion that says there wasn't evidence in this case ... but there's a chance for others." Opponents argued that the 2005 law would unfairly target people who might have trouble getting an ID, but U.S. District Judge Sarah Evans Barker in Indianapolis ruled in April 2006 that the law doesn't infringe on anyone's right to cast a ballot. She focused on the fact that opponents had not produced evidence of a single person who would not be able to vote under the law, which is a point the 7th Circuit Court of Appeals joined her on when affirming the decision last year. This decision affirms the 7th Circuit's ruling. Other attorneys on the consolidated cases couldn't be reached for comment at IL deadline. Justice John Paul Stevens authored the majority's 21-page opinion, with Chief Justice John Roberts and Justice Anthony Kennedy concurring; Justices Antonin Scalia, Clarence Thomas, and Samuel Alito concurred in result with a separate opinion, while Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer dissented, calling the Hoosier statute unconstitutional. In the lead opinion, justices conceded that the law could impose some special burden on some voters but that the record doesn't have enough evidence to show what that burden is and whether it's severe enough to overturn the state statute. "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," Justice Stevens wrote in the lead opinion, citing Burdick v. Takushi, 504 U.S. 439 (1992). "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 conclusion reached by the court as a whole is that the law may be unconstitutional as applied to a small number of voters who must incur cost in order to obtain the ID, but because this case has no such voters as plaintiffs, it fails to reach that claim. In a concurring opinion, Justice Scalia cautions that the lead opinion could result in more litigation because it relies on the record and, in this particular case, doesn't have enough evidence to show a special burden is severe enough to warrant strict scrutiny of the entire statute. "The Indiana photo-identification law is a generally applicable, nondiscriminatory voting regulation that individual impacts are relevant to determining the severity of the burden it imposes," he wrote, adding later that it's a "universally applicable" and "eminently reasonable" statute. "Even if I thought that stare decisis did not foreclose adopting an individual-focused approach, I would reject it as an original matter. This is an area where the dos and don'ts need to be known in advance of the election, and voter-by-voter examination of the burdens of voting regulations would prove especially disruptive. A case-by-case approach naturally encourages constant litigation." Justice Souter, in his 30-page dissent, found the lead opinion's logic about limited burdens "far from trivial" and wrote the statute threatens to impose nontrivial burdens on tens of thousands Hoosier voters. "The Indiana Voter ID law is thus unconstitutional: the state interests fail to justify the practical limitations placed on the right to vote, and the law imposes unreasonable and irrelevant burden on voters who are poor and old," Justice Souter wrote, adding that he would vacate the 7th Circuit's ruling and remand. Justice Breyer issued a dissent that weighed the statute's voting-related interests with voter burdens, detailing what other states have done and finding that Indiana's law imposes greater burdens than those jurisdictions or a federal commission that had made national recommendations on voter ID regulations. Falk said he's encouraged by the plurality decision. "This isn't sour grapes, we understand we lost and this case is over," he said. "But it leaves open the possibility that if this law does what we think it will and burdens the right to vote, then those people will have judicial recourse."
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