SCOTUS Upholds Voter ID Law
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The Supreme Court rejected 6-3 a facial challenge to Indiana’s voter ID law, with the majority sharply divided over how to evaluate such challenges. Justices Stevens, Roberts and Kennedy said the challengers presented insufficient evidence of the law’s impact on poor, elderly and other voters, but left open the possibility – however difficult in practice – of as-applied challenges. Justices Scalia, Alito and Thomas said such evidence was irrelevant, and that voting restrictions that are not “discriminatory” or “severe” will be judged solely on their effect on the electorate as a whole. In dissent, Justices Souter and Ginsburg concluded that the law was “uncomfortably close” to a poll tax, and “without a shred of evidence” to support it. Justice Breyer dissented separately, arguing that voter ID requirements were permissible (and desirable), but Indiana’s were far too restrictive. The divided ruling is likely to spur both litigation and legislation nationwide. Crawford v. Indiana Democratic Party, 553 U.S. ___, 2008 WL 1848103 (Apr. 28, 2008) (Nos. 07-21 and 07-25).
The Indiana law requires those voting in person to present a valid government photo ID. There is an exception for those confined to nursing homes, but others unable to comply must cast a provisional ballot by completing an affidavit at the county clerk’s office. The Indiana Democratic Party brought a facial, pre-enforcement challenge to the law, claiming that it unduly burdened the right to vote. Although photo IDs are technically free, documents required to obtain one are not; the plaintiffs alleged that these costs, along with transportation and other practical difficulties in obtaining documents, would effectively disenfranchise many voters. The Court noted that the Democratic Party had standing.
Crucial to Stevens’s controlling opinion is the lack of evidence on both sides of this case. On the one hand, the State had no evidence to support its rationales for the law. On the other hand, the plaintiffs had “not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of SEA 483 or who will have his or her right to vote unduly burdened by its requirements” (quoting district court). Stevens concluded that “the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute.”
Beginning with Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) (poll tax invalid), Stevens found in the Court’s precedents a “balancing approach” to voting restrictions, whereby “a court must identify and evaluate the interests put forward by the State,” and balance them against burdens on voters.
In Harper, the ability to pay a poll tax “was irrelevant to the voter’s qualifications.” Here, Stevens identified three rationales that are “unquestionably relevant to the State’s interest in protecting the integrity and reliability of the electoral process”:
1. Election Modernization. Stevens noted that the federal “motor voter” law of 1993, and the Help America Vote Act of 2002, both required States to “reexamine their election procedures” and both linked photo ID with voter registration. A national commission in 2002 also endorsed voter ID laws.
2. Voter Fraud. Stevens admitted that there was “no evidence of any [in-person voter] fraud actually occurring in Indiana at any time in its history,” and that criminal sanctions made it unlikely. Nevertheless, he pointed to four pieces of evidence that “the risk of voter fraud is real”: (1) widespread in-person fraud elsewhere during the Nineteenth Century; (2) recent “scattered instances” of in-person fraud in at least one other State; (3) absentee ballot fraud in a close 2003 local election in Indiana; and (4) the State’s inflated voter rolls.
3. Safeguarding Voter Confidence. Stevens said that voter ID laws could increase voter confidence and thereby encourage voting; he did not mention the potential of contested voter restrictions to undermine public confidence.
As to the burden on voters, Stevens first said that “burdens of the sort arising from life’s vagaries,” such as the loss or theft of an ID, were not relevant. Moreover, obtaining a photo ID does not pose a substantial burden for most voters, and the record was insufficient to establish an excessive burden on any class of voters. He said there was no evidence of the number of voters without photo ID – dismissing the district judge’s estimate of 43,000 because it was based on 2005 data.
Marching through the various voter depositions in the case, Stevens agreed with the district court that there was no evidence of “a single, individual Indiana resident who will be unable to vote…or will have his or her right to vote unduly burdened” by the law (quoting district court). Notwithstanding this statement, Stevens noted the affidavit of a homeless woman denied a voter ID because she lacked an address; he said dismissed this piece of evidence because it gave “no indication of how common the problem is.” Though there was no evidence regarding the burden on voters with religious objections to photo ID, Stevens hinted that the law might not survive an as-applied challenge inasmuch as it forced those voters to always cast a provisional ballot.
Stevens emphasized the “heavy burden of persuasion” on plaintiffs in facial challenge to the statute, citing Washington State Grange v. Washington State Republican Party, 552 U.S. ___, 128 S.Ct. 1184 ( Mar. 18, 2008). In that recent 7-2 decision, the Court discussed at length why it disfavors facial challenges to State laws, and particularly pre-enforcement challenges. Stevens said that this reasoning “applies with added force here” because the Court could not quantify the magnitude of the law’s burden or the extent to which it was justified. He also said that even if there was a constitutional violation, striking the whole statute might not be the proper remedy.
Justice Scalia disagreed sharply with Stevens on the appropriate standard for facial challenges to voting laws. Relying on Burdick v. Takushi, 504 U.S. 428 (1992) (upholding ban on write-in voting), Scalia said the Court should apply “a deferential ‘important regulatory interests’ standard for nonsevere, nondiscriminatory restrictions.” Under this standard, a voting law would only be struck if it was facially discriminatory, was unrelated to any serious government interest, or imposed severe burdens on the electorate as a whole. Impacts on only some voters, he said, are irrelevant. Scalia also criticized Stevens’s invitation to as-applied challenges, saying it “naturally encourages constant litigation” in an area where “dos and don’ts need to be known in advance.”
Scalia’s opinion does not say how the cases striking down poll taxes and ballot-access fees are consistent with the standard he describes – it’s not clear that they are. For his part, Justice Stevens suggests that a voter ID requirement would be invalid if combined with a fee for photo IDs – but fails to explain how this is different from the existing financial burdens of obtaining a photo ID. By contrast, Justice Souter’s dissent focused squarely on the economic burden imposed by the law, concluding that “the travel costs and the fees are disproportionately heavy for, and thus disproportionately likely to deter, the poor, the old, and the immobile,” in just the same way as a poll tax.