Supreme Court Hears Indiana Voter ID Case

The Supreme Court heard arguments Wednesday on whether states may require government-issued photo identification cards as proof of identity for voters at the polls. At issue is a strict Indiana law, but many other states have similar laws.

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Politics was the matter at hand at the Supreme Court today as well. At issue: An Indiana law requiring all voters to show current government-issued photo ID. Since 2000 in Bush versus Gore, Republicans have pushed such laws across the country, and Indiana's is the strictest.

NPR's legal affairs correspondent, Nina Totenberg reports.

NINA TOTENBERG: Twenty-four states have laws that require voters to provide some form of ID at the polls. Seven states require photo IDs. Indiana's law requires anyone voting in person to present a current government-issued photo ID. People can get them free from the state, but must have appropriate documents such as a certified birth certificate plus other secondary proof, and obtaining those documents often cause time and money.

The Democratic Party challenged the law in court and lost. A federal appeals court acknowledged that the law would impose a burden on minorities, the poor and the elderly, but the lower courts said the burden was slight and was just justified to prevent fraud in the future.

On the steps of the Supreme Court today, Indiana Solicitor General Thomas Fisher acknowledged that the state has no history of voter impersonation fraud. But he said there have been reports of voter impersonation fraud in other states.

Mr. THOMAS FISHER (Solicitor General, Indiana): We've got our problem with voter confidence. I think that's the main thing. We want to make sure that votes do not lose confidence in the integrity of election.

TOTENBERG: But Democratic Party Chair Dan Parker said there's not a single recorded case of voter impersonation fraud in Indiana's history.

Mr. DAN PARKER (Chairman, Indiana Democratic Party): The solution, looking for a problem. There is no problem in Indiana with voter impersonation.

TOTENBERG: Inside the courtroom, lawyer Paul Smith, representing the Democrats, took quite a pounding from the justices.

Chief Justice Roberts: I had understood you had no voters who had actually been prevented from voting. Answer: That's because we challenge the law before any election actually occurred. Now, we have such voters.

Justice Scalia: Did you have anyone who said, I don't have an ID and won't be able to get one? Answer: Yes.

Chief Justice Roberts: Even though the state provides free ID? Answer: Yes.

The state ratcheted up the difficulty of getting that ID, requiring a birth certificate and other documents that you have to pay for. Yes, said lawyer Smith, there's a special provision for indigents, but it is gratuitously burdensome. Requiring them to make more than one trip in order to vote, and requiring them to go to the county seat, not just their precinct polling place.

Justice Breyer: There used to be a common urban legend of political bosses voting whole graveyards of people. Now, that would be almost impossible to catch. Answer: It would not be impossible catch. In a state with 5,000 precincts manned by poll workers who know many of their neighbors, many kinds of fraud are hard to catch, but they do get caught.

Justice Alito: If you concede that some kind of voter ID requirement is appropriate, where do you draw the line?

Justice Souter: How do we quantify how many people will suffer in Indiana? Answer: A substantial portion of the 400,000 without IDs. The Lafayette Urban Ministry, which helps the needy, to cite just one example, had 150 people come to them for helping getting IDs. But these voters were in this catch 22 where they needed a driver's license to get a birth certificate. And a year later, even with the ministry's assistance, 75 of them still didn't have IDs.

The state's lawyer, Thomas Fisher, rejected the Democrat's numbers. That prompted Justice Souter to interject, well, even the lowest estimate is 10,000 people affected. Answer: Then you're talking about less than half of a percent of the total electorate.

Justice Souter: But isn't 10,000 voters enough to be considered more than de minimis?

Justice Scalia: Why can't that one-half of one percent challenge the law, saying it can't be applied to them?

Justice Souter: You'd never be able to bring a pre-election challenge then, would you? Answer: No.

Justice Ginsburg: And the horse would be out of the barn. The election would be skewed against them.

Justice Kennedy: There's nothing that prevents the state from confirming the validity of the registration at the polls. If we thought that the birth certificate was burdensome, he added, are there states that have a reasonable alternative?

The Democrats' lawyer, Paul Smith, sought to answer that question in his rebuttal time pointing to other states like Michigan that require affidavits at the polls when a person doesn't have an ID.

Justice Scalia: Aren't there going to be problems with any system, you imagine? And shouldn't we wait for lawsuits challenging how the law has actually been applied to individuals? Answer: To paraphrase King Lear, that way lies madness. The court would have to do what it has never done before, carve out groups of people who are exempt from the law. And at the same time, the court would leave a larger group of people to suffer smaller inconveniences, which would cause some small percentage of them not to vote.

Justice Kennedy: You want us to invalidate a statute on the grounds that it's a minor inconvenience to a small percentage of voters?

That question from Justice Kennedy whose vote may be pivotal in the case could be telling.

Nina Totenberg, NPR News, Washington.

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Supreme Court Weighs Voter ID Requirements

States Requiring
Photo ID to Vote
  • Florida
  • Georgia
  • Hawaii
  • Indiana
  • Louisiana
  • Michigan
  • South Dakota

Source: National Conference of State Legislatures

Politics is front and center at the Supreme Court on Wednesday, as the justices examine the constitutionality of laws requiring voters to show a government-issued photo ID in order to cast a ballot. Although 24 states have enacted such laws in recent years, Democrats contend that they suppress voter turnout.

Since the fateful 2000 election, Republicans in many states have pushed for voter ID laws to stave off what they see as a major problem: voter fraud through voter impersonation at the polls. But studies have shown the problem does not exist.

Tova Wang, a Democracy Fellow at The Century Foundation, co-authored research and filed a federally mandated report on the question.

"We found that although there is fraud in the system, it doesn't take place at the polling place," Wang says.

Royal Masset, a consultant who by his own estimate has been involved in some 5,000 Republican campaigns in Texas, agrees.

"My experience is that in-person voter fraud is nonexistent," he says. "It doesn't happen, and if you really analyze it, it makes no sense because who's going to take the risk of going to jail on something so blatant that maybe changes one vote?"

Voter fraud does exist, say the experts, but in more systematic ways, through ballot box stuffing, voter machine manipulation, registration list manipulation and absentee balloting.

Documents Required to Vote

Still, 24 states have passed some sort of voter ID law. Indiana's is the strictest: It requires anyone voting in person to present a current government photo ID.

If you don't have one, you can vote provisionally at the polls, but you must present the required ID at an appropriate government office within 10 days or your vote will not be counted. People who don't have IDs can get them free from the state, but they must have appropriate documents, such as a certified birth certificate, and other secondary proof.

The Democratic Party and the American Civil Liberties Union went to court seeking to block the law, noting that there is not a single recorded case of voter-impersonation fraud in Indiana's history. A federal appeals court acknowledged that the law poses a heavier burden on groups that tend to vote Democratic — minorities, the poor and the elderly. But, the court said, the burden is slight.

'A Preventative Approach'

In the Supreme Court on Wednesday, Indiana will argue that the law is necessary to promote public confidence in the system.

"There is concern about fraud in the future, so it's a preventative approach that hopefully can maintain the integrity of the voting process," Indiana Attorney General Steven Carter says.

Countering that argument will be lawyer Paul Smith.

"Under the Supreme Court's doctrine, the fundamental right to vote is protected from laws which look like legitimate regulations but don't actually serve any purpose while imposing significant burdens," Smith says.

The devil, Smith contends, is in the details of Indiana's law. He cites, for example, the case of a woman who made three trips to the motor vehicle bureau in a vain attempt to get a free voter ID card. Her problem, even after she obtained her birth certificate, was that it was not in her married name. While the state does provide free voter ID cards, Smith observes, voters incur considerable costs in time and money to secure the documents the state requires as a condition for getting the cards.

'I Should Be Able to Have a Voice'

The League of Women Voters has filed a brief with concrete examples. One of those examples is the case of Kim Tillman of Indianapolis, a stay-at-home wife of a janitor and mother of seven children ages 1 to 11. In order to get the free voter ID card, she had to get her birth certificate from out of state, a process that she said would have cost as much as $50. And that was money she needed for household bills. Not being able to vote, she says, made her feel like she wasn't a citizen.

"I believe that I should be able to have a voice ... to say who I would like governing the state that I live in," Tillman says. "But unfortunately because of the state laws I'm unable to do that."

The state contends that Tillman could have voted if she had gone to the state offices within the 29 days before an election and sworn out an affidavit saying she is indigent, a process she would have to repeat before each election. There is no indigency affidavit provided on Election Day at the polls.

In the most recent mayoral election in Indianapolis, the city documented 34 cases of voters who had voted repeatedly and consistently in past years and whose signatures matched their registrations, but who had to cast provisional votes because they did not have the proper ID. Only two of those 34 voters went back within the required 10-day period after the election with the appropriate ID so their votes would be counted.

Carter, the state attorney general, notes that 34 voters out of 160,000 isn't that many.

"So those who didn't have the proper photo identification was really a miniscule number in this urban county," Carter says.

Voting rights lawyers counter that there were likely many more who just turned around and went home instead of taking the time to vote provisionally. In any event, they contend, even 34 votes, when duplicated in other locations throughout the state, can add up to hundreds, even thousands of votes that could decide a closely contested election.

Uneven Hurdles

And the challengers argue that without some proven problem with voter impersonation, the ID requirement is an undue burden on the right to vote and the right to run for office on a fair playing field.

"If you think of an election as a race, a sprint, and if you put up three hurdles in front of both runners, then it's an equal sprint, and in the end it's a fair contest," Smith says. "But if you can add an extra hurdle in front of one of the runners and not the other, then it doesn't prevent the runner from finishing the race, it just makes it a lot harder to win because you have this additional burden."

The state, however, counters that all voting regulations impose some inconvenience.

"There are burdens to register to vote; there are burdens in gas or shoe leather in going to the polls," Indiana Secretary of State Todd Rokita says. "That doesn't mean they were disenfranchised. They chose not to go through the parameters for voting in person on Election Day that are required in Indiana."

Carter adds that even though registered voters without proper ID must take extra steps to legitimize their votes, "elections don't sneak up on any of us. There is an opportunity to start that process if need be several weeks or months before the election."

There are no hard figures on how many eligible voters are without any current state or federal government photo ID. The state points out that in the hotly contested 2006 federal election in Indiana, voter participation was up by 2 percent.

But the Census Bureau and the Federal Highway Administration estimate that 11 percent of voting-age citizens, some 21 million Americans, lack any form of current government-issued photo ID. The ubiquitous driver's license doesn't exist for many city dwellers who use public transportation, or for those too poor to own a car, or for senior citizens who no longer drive.

The lower courts have come to different conclusions about voter ID laws in different states. Some laws have been struck down and some upheld. Without exception, though, the judges have cast their votes along party lines, with Republican appointees in favor of the voter ID laws and Democratic appointees against. Now, with the legacy of Bush v. Gore lurking in the background, the Supreme Court is poised to pack another political punch.

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