Just as the 2008 election is shifting into high gear, the Supreme Court will take up a voting rights case Wednesday that could affect the outcome in some close contests this year and well into the future.
At issue is whether states may require voters to show a driver’s license or a passport at their polling places. Voting rights advocates are calling it the most important election-law case since Bush vs. Gore in 2000, and the partisan divide is nearly as sharp.
Republicans say photo IDs are needed to prevent vote fraud by, for example, having ballots cast in the names of the dead or by those who are not legal voters, such as felons, noncitizens or nonresidents.
When asked, most Americans say they support the idea of requiring voters to show a photo identification, Republicans say. And as U.S. Court of Appeals Judge Richard Posner from Chicago wrote in upholding Indiana’s ID requirement for voting, “It is exceedingly difficult to maneuver in today’s America without a photo ID (try flying, or even entering a tall building such as the courthouse in which we sit, without one).”
Democrats counter that the photo ID rules are a Republican-driven scheme whose real purpose is to deter voting by racial minorities, the poor and the elderly. They say that new voters are checked for eligibility when they register, and that there is no need for a photo ID check at the polling place.
“If you want to steal an election, this is not the way to do it,” said Jon M. Greenbaum of the Lawyers’ Committee for Civil Rights Under Law. It is the rare person, he said, who would risk up to three years in jail by going to a polling place and impersonating a dead person whose name and address may still be on the rolls. It would be much easier to cast a fraudulent ballot by mail because the photo ID rules apply only to those who vote in person.
And a surprisingly large number of legally registered voters could run afoul of a photo ID requirement. About 10% of the nation’s voting-age citizens -- more than 20 million people -- do not have a driver’s license or passport, according to studies and phone surveys presented to the high court.
“Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic,” said Judge Terence Evans from Milwaukee, dissenting from Posner’s opinion.
Only a few states -- Indiana, Arizona, Georgia, Florida and Missouri -- have adopted photo ID laws, and Indiana’s is the strictest. Most other states permit registered voters to supply other evidence, such as a utility bill or a bank statement, to verify their identity and residence.
“In Indiana and Georgia, if you don’t have a driver’s license or passport, you have a problem,” said Tova Andrea Wang, an election-law expert at the Century Foundation, a nonprofit public-policy research organization.
If the Supreme Court upholds the Indiana law, critics of such measures fear other states will adopt and enforce similar laws.
In some other major election cases in recent years, the Supreme Court has handed victories to Republicans. In Bush vs. Gore, the justices stopped the Florida recount in a 5-4 decision, with all the conservative justices on the GOP side and the liberals on the Democrats’ side. In 2003, the court, by a 5-4 vote, rejected Democratic challenges to Republican-engineered gerrymandering of the electoral districts in Pennsylvania. In 2004, the court also upheld a Texas redistricting plan put together by former Republican U.S. Rep. Tom DeLay.
On Wednesday, the justices will hear the Democrats’ challenge to the Indiana law, but the case has flaws that could cloud the outcome.
First, the Indiana Democrats sued without naming individual plaintiffs who were deterred from voting because of the law. The state’s lawyers, joined by the Bush administration, say the high court should throw out the challenge on that basis.
Chief Justice John G. Roberts Jr. has made it clear that he takes a skeptical view of legal challenges that claim a state or federal law might infringe the rights of certain people in the future. Instead, he has insisted on hearing from real people who could show that they were harmed by a particular law.
Lawyers for the Democrats say they challenged the Indiana law as unconstitutional before it went into effect, and therefore they could not show that it had affected real people. They also say that 32 legal voters in Indianapolis had their ballots nullified last year because they did not supply a valid government-issued photo ID.
Bradley A. Smith, former chairman of the Federal Election Commission, said the challengers “made a mistake in bringing this case on such a thin record.” He predicted the court would take “a wait-and-see attitude” toward such voting requirements.
But there is an equally glaring problem on the other side. Defenders of Indiana’s photo ID requirement cannot point to any examples of the kind of fraud that the new law is supposed to prevent. The state says it suffers from “bloated voter rolls” that include the names of the dead. But it has presented no evidence that anyone has voted by adopting the identity of a dead person.
Marion County, the state’s largest, includes Indianapolis, and its election board has cast doubt on the need for the state measure. It told the court its members had “neither any memory nor any record of any instance of the in-person voter impersonation fraud the Voter Identification Statute is designed to combat.”
“This is a cynical effort . . . to play off the fear of fraud,” said Deborah Goldberg, a voting rights advocate at the Brennan Center for Justice at the New York University School of Law.
The Constitution itself says little about voting. The 15th Amendment, adopted after the Civil War, says the right to vote “shall not be denied or abridged . . . on account of race,” but that is not at issue in the Indiana case.
The Supreme Court in the 1960s struck down poll taxes as violating the guarantee of “equal protection of the laws,” and its opinion referred to voting as a “fundamental right.” The challengers cited that ruling as a basis for striking down the Indiana law.
But in more recent decades, the court has made it clear that states can strictly regulate elections without running afoul of the Constitution. For example, states can require voters to register well in advance of election day and limit the hours for voting in person. In 1992, the court upheld a ban on write-in voting in Hawaii and said the right to vote must be balanced against the need to “maintain the integrity of the democratic system.”
In the Indiana case, the high court is being asked to decide whether the state’s desire to prevent fraudulent voting is strong enough to justify a photo ID requirement that may deter thousands of legal voters from casting ballots. A ruling is not expected until May or June.