The Supreme Court this morning, by a 6-3 vote in Crawford v. Marion County Elec. Bd., upheld Indiana’s voter ID law. This is a major defeat for the Democrats’ efforts to prevent states from requiring valid identification to vote. The lawsuit was brought by the Indiana Democratic Party.
The Court took a fractured approach. Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy, found no showing of an undue burden on various voters who challenged the voter ID law on its face. Justices Scalia, Thomas and Alito would have upheld the law on the broader ground that it imposed the same requirements equally on all voters. Both opinions give great weight to the state interest in ensuring that only eligible voters cast ballots. Justice Souter, joined by Justices Breyer and Ginsburg, dissented on the grounds that they felt the statute did, in fact, unduly burden some voters. Justice Breyer wrote separately.
Justice Scalia’s separate opinion is redolent of the judicial hangover from Bush v. Gore in its emphasis on the hazards of permitting case-by-case judicial review of neutral rules established by state legislatures before an election takes place. This is a point I’ve been making since the Bush v. Gore decision came down: the most important thing about that case is the fact that the SCOTUS was reviewing a non-statutory judicial remedy crafted by an appellate court after the election had taken place, when all the participants knew – or at least thought they knew – what remedies would benefit which candidates, as opposed to a statute of general applicability enacted before the election, setting out rules and procedures that all participants knew from Day One they would have to comply with.
Extended excerpts from the Stevens and Scalia opinions, and commentary, below the fold. Note that this is the third election-law case this Term (I discussed the first two here and here), and the democratically-enacted statute won in each case.
(UPDATES also below the fold).
Justice Stevens’ plurality opinion starts by noting the rule laid down in the Court’s poll tax cases (I’m omitting footnotes, citations, etc. as I go):
[E]ven rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications…. [H]owever, we [have] confirmed the general rule that “evenhanded restrictions that protect the integrity and reliability of the electoral process itself” are not invidious …Rather than applying any “litmus test” that would neatly separate valid from invalid restrictions, … a court must identify and evaluate the interests put forward by the State as justifications for the burden imposed by its rule, and then make the “hard judgment” that our adversary system demands.
Justice Stevens then addressed the case at bar:
While petitioners argue that the statute was actually motivated by partisan concerns and dispute both the significance of the State’s interests and the magnitude of any real threat to those interests, they do not question the legitimacy of the interests the State has identified.
The first is the interest in deterring and detecting voter fraud. The State has a valid interest in participating in a nationwide effort to improve and modernize election procedures that have been criticized as antiquated and inefficient. [See National Commission on Federal Election Reform, To Assure Pride and Confidence in the Electoral Process 18 (2002) (with Honorary Co-chairs former Presidents Gerald Ford and Jimmy Carter).]
Justice Stevens quoted at length from that report, thus providing a rare example of such a bipartisan commission coming to some good (Justice Breyer would have placed equally strong weight on some of the commission’s specific recommendations). He also cited the two recent federal enactments on voting procedures. He also noted that there was sufficient evidence that voter fraud happens to justify the state in trying to prevent it:
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.
There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear.
Judge Barker cited record evidence containing examples from California, Washington, Maryland, Wisconsin, Georgia, Illinois, Pennsylvania, Missouri, Miami, and St. Louis. The Brief of Amici Curiae Brennan Center for Justice et al. in Support of Petitioners addresses each of these examples of fraud. While the brief indicates that the record evidence of in-person fraud was overstated because much of the fraud was actually absentee ballot fraud or voter registration fraud, there remain scattered instances of in-person voter fraud. For example, after a hotly contested gubernatorial election in 2004, Washington conducted an investigation of voter fraud and uncovered 19 “ghost voters.” ….After a partial investigation of the ghost voting, one voter was confirmed to have committed in-person voting fraud.
Soren Dayton has more on the East Chicago case, which resulted in 45 convictions. Turning to the challenge to the statute’s requirements, Justice Stevens noted that some groups may be unduly burdened but found an insufficient basis to invalidate the entire statute on the record before the Court – thus leaving open the possibility of future challenges:
The burdens that are relevant to the issue before us are those imposed on persons who are eligible to vote but do not possess a current photo identification that complies with the requirements of SEA 483.16 The fact that most voters already possess a valid driver’s license, or some other form of acceptable identification, would not save the statute under our reasoning in Harper, if the State required voters to pay a tax or a fee to obtain a new photo identification. But just 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.
Petitioners ask this Court, in effect, to perform a unique balancing analysis that looks specifically at a small number of voters who may experience a special burden under the statute and weighs their burdens against the State’s broad interests in protecting election integrity….But on the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified.
Finally we note that petitioners have not demonstrated that the proper remedy—even assuming an unjustified burden on some voters—would be to invalidate the entire statute. When evaluating a neutral, nondiscriminatory regulation of voting procedure, we must keep in mind that a ruling of unconstitutionality frustrates the intent of the elected representatives of the people.
Finally, Justice Stevens rejected the argument that the statute is improper because of a partisan motivation:
It is fair to infer that partisan considerations may have played a significant role in the decision to enact SEA 483. If such considerations had provided the only justification for a photo identification requirement, we may also assume that SEA 483 would suffer the same fate as the poll tax at issue in Harper.
But if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.
Justice Scalia argued that the Court’s precedents, the constitutional text and the practicalities of election litigation argued for a more sweeping rule deferring to state legislatures:
The lead opinion assumes petitioners’ premise that the voter-identification law “may have imposed a special burden on” some voters… but holds that petitioners have not assembled evidence to show that the special burden is severe enough to warrant strict scrutiny, … That is true enough, but for the sake of clarity and finality (as well as adherence to precedent), I prefer to decide these cases on the grounds that petitioners’ premise is irrelevant and that the burden at issue is minimal and justified.
The Indiana law affects different voters differently, … but what petitioners view as the law’s several light and heavy burdens are no more than the different impacts of the single burden that the law uniformly imposes on all voters. To vote in person in Indiana, everyone must have and present a photo identification that can be obtained for free. The State draws no classifications, let alone discriminatory ones, except to establish optional absentee and provisional balloting for certain poor, elderly, and institutionalized voters and for religious objectors. Nor are voters who already have photo identifications exempted from the burden, since those voters must maintain the accuracy of the information displayed on the identifications, renew them before they expire, and replace them if they are lost.
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. Very few new election regulations improve everyone’s lot, so the potential allegations of severe burden are endless. A State reducing the number of polling places would be open to the complaint it has violated the rights of disabled voters who live near the closed stations. Indeed, it may even be the case that some laws already on the books are especially burdensome for some voters, and one can predict lawsuits demanding that a State adopt voting over the Internet or expand absentee balloting.
That sort of detailed judicial supervision of the election process would flout the Constitution’s express commitment of the task to the States. See Art. I, §4. It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class. Judicial review of their handiwork must apply an objective, uniform standard that will enable them to determine, ex ante, whether the burden they impose is too severe.
(Italics in original).
Justice Souter’s dissent complains about the absence of public transportation in Indiana and why the new requirements had to be phased in immediately.
UPDATE: Allahpundit looks at Justice Souter’s argument that the travel time to the DMV imposes an unconstitutional burden on the right to vote:
Do note that if you take the left seriously here, the act of voting itself arguably imposes an unconstitutional burden: As with a trip to the DMV, it requires leaving work, traveling, and waiting on line for an unknown amount of time. The only difference between the two is having to scrounge around for a copy of your birth certificate.
(In fact, it was the Democrats who pushed for “motor voter” registration on the theory that registration at the DMV was a great convenience). And Michelle Malkin notes that one of the voters cited in the case as being disadvantaged by the law was herself illegally registered to vote in two states.