SCOTUS Upholds GOP-Pushed Voter ID Laws
by Adam B
Mon Apr 28, 2008 at 08:38:10 AM PDT
In a case reflecting a solution truly in search of a problem, and opening the door to all sorts of harassment for minority, elderly and other traditionally Democratic voters, the Supreme Court ruled 6-3 today that Indiana could legally require all voters to present photo identification cards in order to vote.
The Complaint had argued that voter ID laws would substantially burden the right to vote in violation of the Fourteenth Amendment; that they are neither necessary nor appropriate to avoid election fraud; and that such laws would arbitrarily disfranchise qualified voters who do not possess the required identification and would place an unjustified burden on those who cannot readily obtain such identification.
The Court's opinion essentially has two pluralities joining to form a majority -- Justice Stevens (sigh), Justice Kennedy and the Chief Justice joined to promote the standard that states can enforce "evenhanded restrictions that protect the integrity and reliability of the electoral process itself." They argue that Indiana has a valid interest in deterring and detecting voter fraud, including with regards to "a large number of names of persons who are either deceased or no longer live in Indiana," but, um, what about the fact that such fraud has never been found in Indiana? No matter, Justice Stevens writes:
The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that 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.
Yes, that's right -- no one's ever tried to commit voter fraud like this, but they've done it some other way, and, um, what's that historical answer?
One infamous example is the New York City elections of 1868. William (Boss) Tweed set about solidifying and consolidating his control of the city. One local tough who worked for Boss Tweed, "Big Tim" Sullivan, insisted that his "repeaters" (individuals paid to vote multiple times) have whiskers:
"‘When you’ve voted ’em with their whiskers on, you take ’em to a barber and scrape off the chin fringe. Then you vote ’em again with the side lilacs and a mustache. Then to a barber again, off comes the sides and you vote ’em a third time with the mustache. If that ain’t enough and the box can stand a few more ballots, clean off the mustache and vote ’em plain face. That makes every one of ’em good for four votes.’ " A. Callow, The Tweed Ring 210 (1966) (quoting M. Werner, Tammany Hall 439 (1928)).
Yes, America, they're using Gangs of New York to justify this. Oh, and one -- yes, one fraudulent voter in Washington State's 2004 gubernatorial election. So, what of the burdens? Essentially, they claim, it might be a burden in individual cases, but not so bad as to strike down the whole statute:
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 availability of the right to cast a provisional ballot provides an adequate remedy for problems of that character.
[J]ust as other States provide free voter registration cards, the photo identification cards issued by Indiana’s BMV are also free. For most voters who need them, 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. Both evidence in the record and facts of which we may take judicial notice, however, indicate 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. If we assume, as the evidence suggests, that some members of these classes were registered voters when SEA 483 was enacted, the new identification requirement may have imposed a special burden on their right to vote.
The severity of that burden is, of course, mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted. To do so, however, they must travel to the circuit court clerk’s office within 10 days to execute the required affidavit. It is unlikely that such a requirement would
pose a constitutional problem unless it is wholly unjustified. And 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 in this litigation.
[In other words: particular individual voters may have legitimate grievances that this is unconstitutional as applied to them, but it's not enough to invalidate the law as a whole.]
Justices Scalia, Thomas and Alito concur separately "on the grounds that petitioners’ premise is irrelevant and that the burden at issue is minimal and justified":
The universally applicable requirements of Indiana’s voter-identification law are eminently reasonable. The burden of acquiring, possessing, and showing a free photo identification is simply not severe, because it does not "even represent a significant increase over the usual burdens of voting." [] And the State’s interests [] are sufficient to sustain that minimal burden. That should end the matter. That the State accommodates some voters by permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence -- not a constitutional imperative that falls short of what is required.
Two dissents. First, Justices Souter and Ginsburg:
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, 504 U. S. 428 (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.
The burden of traveling to a more distant BMV office 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 a report published by Indiana’s Department of Transportation in August 2007, 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, 21 provide service only within certain cities, and 32 others restrict public transportation to regional county service, leaving only 18 that offer countywide public transportation....For those voters who can afford the roundtrip, 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.’" As the lead opinion says, the two most common of these documents come at a price: Indiana counties charge anywhere from $3 to $12 for a birth certificate (and in some other States the fee is significantly higher), that same price must usually be paid for a first-time passport, since a birth certificate is required to prove U. S. citizenship by birth. The total fees for a passport, moreover, are up to about $100. So most voters must pay at least one fee to get the ID necessary to cast a regular ballot. 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.
The upshot is this. 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. The Voter ID Law places hurdles in the way of either getting an ID or of voting provisionally, and they translate into nontrivial economic costs. There is accordingly no reason to doubt that a significant number of state residents will be discouraged or disabled from voting.
And, finally, Justice Breyer dissents, focusing on how other states have minimized the burdens on those without IDs, unlike Indiana.
Bottom line, friends? The Great Disenfranchisement of 2008 has begun. These laws are not neutral, are not innocent, but are an attempt by Republican legislators to prevent traditionally Democratic voters from casting their ballots. We need to do whatever it takes to help all qualified voters obtain whatever records they need so that they can vote this November; we cannot let them win.
updated, 12:45 pm: For more on why "voter fraud" is a myth, see this amicus brief filed with the Court by the Brennan Center for Justice, the People for the American Way Foundation and others. ("The record contains no evidence of polling place impersonation fraud in Indiana: the State conceded that it was unaware of any incidents of attempted or successful impersonation fraud in Indiana; that no one in Indiana history has been indicted for impersonation fraud; and that no evidence of impersonation fraud was presented to the Indiana legislature during the debate over the photo ID law.")
- ::