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Voter ID questions remain after SCOTUS ruling

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The primary election in Indiana has come and gone. Voters had to show photo identification, the same as in other recent elections, but it was the first since the nation's highest court upheld the almost three-year-old state statute requiring specific ID at the polls.

Most agree the U.S. Supreme Court decision April 28 hasn't ended the debate about voter identification laws and that more law-drafting and subsequent litigation prior to the November general election is likely.

Nationally, both voters and the legal community should be ready for more debate because the recent ruling didn't have a clear majority and six justices agreed to some extent that Indiana's law could burden some voters.

The court issued a fractured 6-3 decision in 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, a pair of consolidated cases challenging the Indiana statute passed in 2005. Opponents argued that the law would unfairly target people who might have trouble getting an ID, while the state contended it needed the right to impose the rules to prevent voter fraud.

A plurality opinion led to justices conceding that the law could impose a special burden on some voters, though the record doesn't have enough evidence to show what that burden is and if it's severe enough to overturn the statute entirely. In rejecting challenges to these types of laws, the court determined that future challenges must come in regard to specific laws that are already applied in an election and where evidence can be established.

"They haven't completely slammed the courthouse door shut, but it's going to be problematic whether the right set of facts will come along to convince judges this should be struck down 'as applied,'" said William Groth, an attorney who represented the Indiana Democratic Party. "It is hard to read Justice (John Paul) Stevens' majority opinion and come away with any clear guidelines."

The decision came eight days before Hoosiers went the polls for the May 6 primary election, when a record turnout came as Democrats flooded the polls and the state saw many Republicans switching their ticket to have a voice.

Election Day mostly went well, though scattered reports came about voters - many voting for the first time since the 2005 law took effect - not understanding which government-issued photo ID was needed.

A voter-assistance hot line received several calls from would-be voters in Indiana. They were turned away at precincts because they lacked state or federal identification bearing a photograph, according to the Brennan Center for Justice at New York University School of Law. The center and the Lawyers' Committee for Civil Rights Under Law established the hot line as part of Election Protection, the nation's largest nonpartisan voter protection coalition.

One college freshman in South Bend reported she was turned away from casting her first-ever ballot because she had only a college-issued ID card and an out-of-state driver's license, while a newly married woman reported she was told she couldn't vote because her license didn't match the one with her voter registration record.

While poll workers were trying to help the student, the Election Protection line coordinator reported that a group of 12 elderly Catholic nuns were turned away from the polls because they didn't have proper identification, though they'd known about the requirement beforehand. 

 "These laws are confusing. People don't know how they're supposed to be applied," said Myrna Perez of the Brennan Center for Justice and coordinator of the Election Protection hot line.

Following the ruling late last month, Indiana Secretary of State Todd Rokita dismissed any notion that the laws were confusing and called the ruling a "clear cut victory" for states wanting to impose voter ID rules. He said at least 25 states had called his office about the case since it was argued in early January, and now this ruling can serve as a road map for those jurisdictions wanting to initiate similar reforms. About 20 states already have some type of voter ID regulation, he said.

The Brennan Center for Justice criticized the decision but also noted that this didn't give states a blank check for blocking eligible voters; it called on lawmakers across the country to reject similar laws.

Debate is already rampant about the ultimate meaning of this decision and what comes next.

Ken Falk, legal director for the American Civil Liberties Union of Indiana, said he was disappointed but also encouraged by the possibilities left open by the court. If the law does burden voters at the polls, that could lead to more ammunition for future litigation.

"My sense is that a little has been decided but not all that much," said Michael Pitts, a professor at Indiana University School of Law - Indianapolis. "As predicted, we have a very fractured Supreme Court and there's not really widespread agreement on how to handle these voter-identification cases, or election-law cases in general."

 Justice 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.

The conclusion reached by the court as a whole affirms the previous ruling in April 2006 by U.S. District Judge Sarah Evans Barker in Indianapolis, and the ruling last year by the 7th Circuit Court of Appeals that affirmed her decision
2-1.

While the law stands for now, some justices who voted to uphold the law disagreed and speculated this could lead to more litigation on the issue.

In a concurring opinion, Justice Scalia - along with Justices Thomas and Alito - cautioned 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.

Election law professor Richard Hasen at the Loyola Law School in Los Angeles, who'd filed an amicus curiae brief in the cases, said the six justices who voted to uphold the law did so for different reasons and only three offered a strict interpretation of defending the law. That means uncertainty for lower courts on this issue, he said.

Groth expects to see this case come up in state courts at some point later this year. An interesting opening would be if a suit were filed under the Indiana Constitution challenging the statute as a violation of the state provision of qualifications for voting, such as age, residency, and citizenship. Groth said one could argue that this ruling effectively imposes a fourth condition on voting that isn't mentioned in the constitution, and this is an attempt by the legislature to get around a constitutional amendment.

"That's still an avenue out there, and that kind of lawsuit might be forthcoming between now and November," Groth said.

Meanwhile, Pitts saw Justice Stevens' writing a narrow approach to this issue, possibly a strategy to push the issue down the road to another time. Justice Scalia seems pretty upset about that, Pitts observed, while the three other justices dissent with the ultimate ruling. He predicted litigation will arise after both the May and November elections.

"This is the biggest test since it's the first time this law went into effect in 2005 that we'll have this big a turnout," he said. "This (ruling) opens the door to other challenges, here and elsewhere." • 

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