The justices, whose new term begins on Monday, will hear the case in January and decide it by early summer, in time to settle for the 2008 election an issue that is generating fiercely partisan litigation and conflicting rulings around the country.
Federal judges have upheld photo ID laws in Indiana and Georgia, but the Missouri Supreme Court struck down that state’s law last year. More than 20 states have passed laws requiring some form of identification at the polls, beyond the simple signature that has traditionally been required.
All of the laws have been enacted since the disputed Florida vote in the 2000 presidential election, and all have been pushed by Republican legislators who maintain that the laws are necessary to deter voter fraud. The laws have been resisted and challenged by Democrats who argue that they exaggerate the dangers and incidence of voter fraud while impermissibly sacrificing voter access. The case the court accepted was brought by Democrats from Indiana.
Democrats argue that the laws place a particular burden on eligible voters who are poor or elderly and who lack driver’s licenses and ready access to substitute forms of identification. Under the Indiana law, passed by the Republican-controlled Legislature in 2005, the photo ID must be current, so that an elderly person who is no longer driving would not be able to use an expired license as identification.
Judge Richard A. Posner, who in January wrote the majority opinion upholding the Indiana law for the United States Court of Appeals for the Seventh Circuit, agreed with the Democratic plaintiffs that the voter ID requirements injured the Democratic Party.
But Judge Posner said that while few people who truly wanted to vote would be deterred, there was a valid claim on the other side that “voting fraud impairs the right of legitimate voters to vote by diluting their votes.”
The legal question for the Supreme Court is how to evaluate the competing interests: the relaxed standard adopted by the appeals court, or the “strict scrutiny” that the plaintiffs are seeking.
As in many constitutional disputes, the choice of standard will drive the case. If strict scrutiny applies, the state will have to show not just that voter fraud is a valid reason for requiring identification, but that impersonating a registered voter is such a serious problem in Indiana that it justifies a remedy that will predictably deter members of identifiable groups from voting at all.
Voter fraud problems of this sort in Indiana have been sporadic, at most, a fact the plaintiffs say shows that the law is unnecessary. Judge Posner, on the other hand, said that “the absence of prosecutions is explained by the endemic underenforcement of minor criminal laws” and by the difficulty of catching voter impersonators.
Appeals to the Supreme Court were filed on behalf of two groups of plaintiffs who had initially filed separate lawsuits. One case, Crawford v. Marion County Election Board, No. 07-21, was filed by the American Civil Liberties Union and the N.A.A.C.P. on behalf of William Crawford, an Indiana legislator who represents one of the state’s poorest districts, along with groups representing the elderly and homeless. The other case, Indiana Democratic Party v. Rokita, No. 07-25, was brought by the party, naming Todd Rokita, the Indiana secretary of state, as the defendant.
The cases were 2 of 19 new appeals that the Supreme Court added to its docket on Tuesday. The new cases fill the court’s calendar into February, guaranteeing a steady flow of arguments. With about 150 new appeals reaching the court every week, the justices will add more cases as the term progresses.
The plaintiffs in the Indiana cases describe the state’s law as the “most onerous” voter identification law in the country. A voter must present photo identification issued by the federal government or the state. Without the identification, the voter must use a provisional ballot to be counted only if the voter within 10 days goes to the circuit court or county election board. There, the voter must either provide the identification or sign an affidavit that he or she is indigent and cannot obtain proof of identification without paying a fee.
Residents of state-licensed nursing homes or of other institutions who vote at their nursing home or institution are exempt from the requirements. And those who vote by absentee ballot do not have to provide photo identification. But voters who must meet the requirement can easily be caught in a “bureaucratic maze,” the appeals assert, citing a woman who obtained her birth certificate but was turned away because the document contained only her maiden name.
In response, the Indiana attorney general, Steve Carter, told the Supreme Court that the law was well justified by “a swamp of inflated voter-registration lists and nationwide reports of in-person voter fraud.”
In referring to “nationwide reports,” Mr. Carter notably did not claim that the problem of an ineligible voter impersonating an actual voter had occurred in Indiana. Rather, he said, the plaintiffs had exaggerated the burden that the law imposes. Requiring identification was not “qualitatively more burdensome” than other Election Day procedures or the requirement of registering to vote 30 days in advance of an election, he told the justices.
The case as it proceeded in the Seventh Circuit — the appeals court that is based in Chicago and covers Indiana — revealed a partisan divide that has become typical of these cases in other courts.
Those in the 2-to-1 majority on the panel, Judge Posner and Judge Diane S. Sykes, were both Republican appointees, while the dissenting judge, Terence T. Evans, was a Democratic appointee.
Judges Evans’s dissenting opinion was unusually pointed. “Let’s not beat around the bush,” it began. “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.”
When the appeals court considered whether to take the case, 3 of the 4
votes to do so came from the only 3 Democratic-appointed judges on the
court.