Nonprofit Voter Engagement Network - Indiana Voter ID Decision

Indiana Voter ID Decision

NVEN Policy Update

Crawford v. Marion County Election Board by 6-3 upheld the current Indiana Voter ID law.

What does the law do:

•   Requires voters to present a government-issued photo ID such as driver’s license, state ID card or passport whose expiration date is current.
•   Student and work IDs, for example, are not accepted (however, an ID from an Indiana state college or university is acceptable).
•   Lacking this ID, a voter can use a provisional ballot. The voter must return within a few days after the election with a photo ID.
•   No ID necessary if voting by mail (must be eligible to vote by mail)

Who Decided:

Justice Stevens wrote the majority decision with Roberts and Kennedy. Justice Scalia wrote a concurring opinion with Thomas and Alito. Justices Breyer, Ginsberg and Souter dissented.

Majority: The majority said plaintiffs provided insufficient evidence that the Indiana law had unfairly burdened voters to date. They did not accept arguments about the future potential for discriminatory burden in the 2008 elections and beyond, though Stevens and the majority did acknowledge the possible burden on low-income and older voters. The majority opinion acknowledged virtually no evidence of past voter fraud, the legislative basis for the strict law. They said states can implement election laws for most any reason. Plaintiffs need more proof of burden to overturn them, leaving the door open to future lawsuits.

Minority: Souter with Ginsberg countered that Indiana had failed to produce any compelling reason for the law and that the burden on voters outweighed any state interest in preventing (non-existent) fraud. Justice Breyer said Indiana should have first done the work to make sure photo IDs are universally and freely available before adding them as a voting requirement.

Who brought the suit:

The Indiana Democratic Party and others.

Comments/Major Points

(from the Brennan Center for Justice, Election Law’s Rick Hasen, ElectionLaw@Moritz and others)

The Court did not endorse stricter voter ID laws. It only refused to overturn the lower court that backed the law.
The Court did say state legislatures could adopt any election law so long as they are not proven to burden a voter or group of voters. This put the burden of the proof on the plaintiff bringing the suit against an election law enacted by the State legislature and Governor.
The Plaintiff’s case was considered weak. Even many supporters said it was probably not a good idea to appeal the lower court decision, at least before more and stronger evidence could be gathered.
States don’t have to follow Indiana. In fact the complete lack of evidence of voter fraud found in this case could take away arguments to do so.
The decision was divided 3-3-2-1 (four separate opinions) and is less precedent setting.
Stricter ID requirements have been very partisan since 2000, Republicans supporting, Democrats against. They have only passed in states with an all Republican majority in the House, Senate and Governor. Because only a few states fit that profile, the law is unlikely to spread to other states without significant changes and measures to ensure photo IDs are readily available to all and other ID options are still allowed.
The ruling does support the idea that a photo ID could be a requirement to ask for at the polls, similar to its use in many other areas, such as travel, buildings and other settings.
Advocates urge the nonpartisan community to embrace opportunities to act affirmatively to expand opportunities to vote through Election Day Registration or Universal Registration, easier early voting with One-Stop register and vote like North Carolina, eliminating Jim Crow era laws taking away voting rights with a past felony conviction and other positive reforms.

Other states considering similar laws

A few states, Texas, Florida and Oklahoma, are still debating 2008 changes to their state’s voter ID laws. Most states have past the point of consideration of changes this year. Following Indiana’s lead is widely viewed as partisan and does require one party (Republican) control of all three branches.

Impact on the 2008 election

Its biggest impact could be local races in Indiana and Georgia. It has a secondary impact adding more confusion to people in states without Indiana and Georgia’s law.

Florida, the bigger of the “swing states” already has many other problems and hurdles for its voting population around felon disenfranchisement, registration, ballot design, etc. The unfortunate reality is that whatever the vote in 2008, it will not even be close to a reflection of the potential voting population if Florida had laws similar to those in the majority of the other 49 states.

The impact for the next few years is greenlighting partisan-inspired election laws by a partisan and politicized Supreme Court. It also makes it much harder to challenge potentially discriminatory laws. It makes a very big difference on who controls state legislatures, Congress, governorships, etc and who gets appointed to federal courts, including the future possibility of a more balanced Supreme Court.

Final Ideas

The door is still open for future lawsuits if the evidence is there. Collecting more evidence is a challenge for the social science and nonpartisan poll monitoring community.
There is more reason to advocate for reforms that open up the process.
Who is elected and what judges are appointed greatly impacts the whole voting process – whether it is fair and democratic or not.
Working pro-actively with Secretaries of States, making democracy and fair elections a campaign issue can avoid future Indianas.

drafted by George Pillsbury, Policy and Development Director

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