Just in time for the 2008 campaign, the U.S. Supreme Court will hear arguments this week on whether Indiana violated the constitutional rights of its residents by requiring voters to produce a photo ID. The court’s task is complicated by two facts that pull in different directions: (1) The evidence that the ID requirement discouraged significant numbers of voters is thin. (2) Equally lacking is any proof of the voter fraud that the state cites as its justification for the ID requirement.
The significance of this case may not be which side wins, but which standard of review the court announces for determining whether this kind of law is constitutional. Given the importance of the right to vote, we think that legal test should be “strict scrutiny,” which means that ID requirements must be justified by a state’s “compelling interest” in preventing fraud, and those requirements must be narrowly tailored to achieve that objective.
Legal jargon aside, this means that a court should take a hard look at any provision in election law that can be shown to place obstacles in the way of groups of voters. In the Indiana case, such close inspection would consider whether voter impersonation was really a problem in the state. No one apparently has been prosecuted for that form of fraud.
A federal appeals court in Chicago upheld the Indiana rule anyway, suggesting that the absence of prosecutions doesn’t necessarily prove that fraud wasn’t a problem. Writing for the court, Judge Richard Posner conceded that “most people who don’t have photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates.” But Posner said that Indiana was free to balance that probability against a concern about voter fraud. He further noted that the Supreme Court said in 1992 that “strict scrutiny” of election procedures would tie the hands of states in exercising their traditional authority over elections.
It’s time for the Supreme Court to revisit that issue, and the Indiana case -- though short on evidence -- offers an opportunity for the court to show less deference to state actions that deter voters from exercising one of the most important privileges of citizenship. At the very least, the justices should extend the “strict scrutiny” standard to cases like this and send Indiana’s law back to a trial court to determine if the photo ID requirement is both necessary and nondiscriminatory.