Partisan Fissures Over Voter ID

Voters in Virginia have their IDs checked before casting their ballots last year. The Supreme Court's upcoming ruling could affect states' voter ID laws. (By Lois Raimondo -- The Washington Post)
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Democrats there challenged the requirement as unconstitutional, although they have not produced a person who wanted to vote but was unable to do so because of the law.

What is undisputed is that the number of states with such laws is growing. The Supreme Court made it clear in a 1992 case involving write-in candidates in Hawaii that states have leeway in regulating the voting process. Subjecting every restriction to constitutional "strict scrutiny" standards would conflict with the states' ability to run efficient elections, the court said.

And in 2006, in a relatively short and unsigned opinion issued just weeks before the election, the court agreed that a voter-approved initiative in Arizona that required voters to show proof of citizenship could go into effect.

Indiana Secretary of State Todd Rokita (R) said voter fraud was something he was asked about "almost daily" by constituents. "At the Kiwanis Club, the chamber of commerce groups, people would say, 'Why aren't you asking who I am when I vote?' " Rokita said.

The state law he and the legislature came up with requires voters to show a government-issued photo ID that has an expiration date, such as a driver's license or a passport. Nondrivers can receive an identification card from the Bureau of Motor Vehicles.

Voters without ID may cast provisional ballots, but then must appear before their county clerk or board of elections within 10 days. There, they must show a photo ID or at least two other forms of identification, such as a certified birth certificate or naturalization papers.

Most other states that call for photo IDs are less strict, or make it easier to cast provisional ballots. Virginia, for instance, allows voters to sign sworn statements attesting to their identity. Maryland and the District of Columbia do not require voters to show a photo ID, except for first-time voters who registered by mail.

"Virtually everything you do, you have to show a photo ID," Rokita said in an interview, and the "sacred civic transaction" of voting should be no different.

The lower courts have agreed with Indiana. Posner's majority opinion said that the "benefits of voting to the individual voter are elusive" because major elections "are never decided by just one vote."

He said there is a deferential scale the court should follow in evaluating voting requirements. "The fewer people harmed by a law, the less total harm there is to balance against whatever benefits the law might confer," he wrote.

But Evans said that since the state had presented no evidence of voter fraud by impersonators, the law was not solving any problem. "Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table?" Evans wrote. "I think not."

Even Posner alluded to the partisan nature of the debate. "No doubt 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," he wrote.

Both sides cite studies that they believe show that the law has not resulted in lower turnouts for minorities and others or, alternately, show that minorities are most likely to be affected. There are numerous media accounts and other reports of fraudulent voting, as well as a corresponding study from the Brennan Center for Justice at New York University law school titled "The Truth About Voter Fraud," which attempts to knock down many of them.

Brennan Center Executive Director Michael Waldman, a vigorous opponent of voter ID laws, said he fears that the partisan nature of the debate obscures "the actual fact that there are millions of Americans who don't have the kind of ID" that the Indiana law requires.

"We as a country should be finding ways to make it easier for people to vote," Waldman said.

He added that voter impersonation is the least common kind of voter fraud and that Indiana's ID law does nothing to combat what has been proven to have illegally influenced an Indiana election -- absentee balloting fraud.

Rokita responded that that is not a case for inaction: "Why should we wait until we become victims of identity theft, which is what this is?"

The combined cases, Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, will be argued Jan. 9.