The 6-to-3 ruling kept the door open to future lawsuits that provided more evidence. But this theoretical possibility was small comfort to the dissenters or to critics of voter ID laws, who predicted that a more likely outcome than successful lawsuits would be the spread of measures that would keep some legitimate would-be voters from the polls.
Voting experts said the ruling was likely to complicate election administration, leading to both more litigation and more legislation, at least in states with Republican legislative majorities, but would probably have a limited impact on this year’s presidential voting.
The issue has been intensely partisan, with Republicans supporting increased identification requirements for voters and Democrats opposing them. In what the court described as the “lead opinion,” which was written by Justice John Paul Stevens and joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, the court acknowledged that the record of the case contained “no evidence” of the type of voter fraud the law was ostensibly devised to detect and deter, the effort by a voter to cast a ballot in another person’s name.
But Justice Stevens said that neither was there “any concrete evidence of the burden imposed on voters who now lack photo identification.” The “risk of voter fraud” was “real,” he said, and there was “no question about the legitimacy or importance of the state’s interest in counting only the votes of eligible voters.”
The three others who made up the majority, Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr., said in an opinion by Justice Scalia that the law was so obviously justified as “a generally applicable, nondiscriminatory voting regulation” that there was no basis for scrutinizing the record to assess the impact on any individual voters. “This is an area where the dos and don’ts need to be known in advance of the election,” Justice Scalia said.
In a dissenting opinion, Justice David H. Souter said that for those on whom the law had an impact, the burden was “serious” and the state had failed to justify it. Like the Virginia poll tax the court struck down 42 years ago, he said, “the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise.” The other dissenters were Justices Ruth Bader Ginsburg and Stephen G. Breyer.
Six states in addition to Indiana — Florida, Georgia, Hawaii, Louisiana, Michigan, and South Dakota — now require voters to provide photo identification before casting a ballot. Bills are pending in two dozen other states, although they are not likely to pass this year in more than a handful, due to short legislative sessions and Democratic opposition.
The Indiana law, adopted by the Republican-controlled legislature in 2005 without a single Democratic vote, is regarded as the strictest in the country. It requires a voter to present a photograph as part of an unexpired document issued either by Indiana or the federal government, a requirement that in most cases can be satisfied only by a current driver’s license or a passport. The state’s motor vehicle agency provides a free photo ID card for people who do not drive, but obtaining it requires a “primary document” like an original birth certificate or a passport.
Would-be voters without proper identification may cast a provisional ballot that will be counted only if they appear within 10 days at a county clerk’s office and present acceptable photo identification or, alternatively, swear either that they are indigent or that they have a religious objection to being photographed.
The Indiana law was challenged in separate suits filed by the Indiana Democratic Party and by another group of plaintiffs that included elected officials and community groups. The plaintiffs argued that the state had failed to justify a requirement they said would place a special burden on thousands of eligible voters in Indiana who lack driver’s licenses, a group that disproportionately includes the poor, the elderly and people with disabilities.
The plaintiffs lost, both in Federal District Court in Indianapolis and in the United States Court of Appeals for the Seventh Circuit, in Chicago. Writing for the 2-to-1 majority at the appeals court, Judge Richard A. Posner agreed with the plaintiffs that the law would have the greatest impact on people who were “low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates.” While that fact gave the Democratic Party standing to sue, he said, it did not make the law unconstitutional.
The suits were filed before the statute took effect, challenging the law “on its face.” This technique, known as a “facial challenge,” has been a staple of election litigation, based on the notion that once an election has taken place, the asserted damage has been done and it is too late to make judicial amends.
A debate over the legitimacy of a facial challenge in the voter ID context did not enter this case until the Bush administration filed a brief at the Supreme Court stage supporting Indiana. Solicitor General Paul D. Clement told the court in his brief that, as a facial challenge, the suit was premature and based on nothing more than “speculation and as-yet untested evidence.” In the decision on Monday, Crawford v. Marion County Election Board, No. 07-21, the Supreme Court did not go quite so far as to make facial challenges unavailable. But Justice Stevens said in his opinion that in their effort to invalidate the statute in all its applications, the plaintiffs failed to carry their “heavy burden of persuasion,” given the weight of the state’s interest in election integrity.
In his dissenting opinion, which Justice Ginsburg also signed, Justice Souter examined the case from the opposite end of the telescope. Given that there was “no evidence of in-person voter impersonation fraud in a state, and very little of it nationwide,” he said it was Indiana’s job to justify placing even a slight burden on even a limited number of people. “The interest in combating voter fraud has too often served as a cover for unnecessarily restrictive electoral rules,” Justice Souter said.
Justice Breyer, in a separate dissenting opinion, compared Indiana’s law with those in Georgia and Florida, which also require photo identification but accept a range of more broadly accessible documents. Florida accepts student identification cards, employee badges and cards from neighborhood associations, for example, and accepts a provisional ballot as long as the voter’s signature matches one on file. Indiana has not justified its “significantly harsher” requirements, he said.
The vote of Justice Stevens, a reliable anchor of the court’s liberal bloc, was something of a surprise. Some speculated that his strategic aim was to keep Chief Justice Roberts and Justice Kennedy from joining the Scalia camp. Edward B. Foley, an election law expert at Ohio State University, said the Stevens opinion might represent an effort to “depoliticize election law cases.”