By Robert Barnes
Washington Post Staff Writer
Tuesday, December 25, 2007
The Supreme Court will open the new year with its most politically divisive case since Bush v. Gore decided the 2000 presidential election, and its decision could force a major reinterpretation of the rules of the 2008 contest.
The case presents what seems to be a straightforward and even unremarkable question: Does a state requirement that voters show a specific kind of photo identification before casting a ballot violate the Constitution?
The answer so far has depended greatly on whether you are a Democratic or Republican politician -- or even, some believe, judge.
"It is exceedingly difficult to maneuver in today's America without a photo ID (try flying, or even entering a tall building such as the courthouse in which we sit, without one)," Circuit Judge Richard A. Posner, a Ronald Reagan appointee, wrote in deciding that Indiana's strictest-in-the-nation law is not burdensome enough to violate constitutional protections.
His colleague on the U.S. Court of Appeals for the 7th Circuit, Bill Clinton appointee Terence T. Evans, was equally frank in dissent. "Let's not beat around the bush: 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," Evans wrote.
For justices still hearing from the public about their role in the 2000 election -- "It's water over the deck; get over it," Justice Antonin Scalia impatiently told a questioner at a college forum this year -- the partisan implications of the issue are hard to miss.
The case has pitted Democrats against Republicans, conservative legal foundations against liberal ones, civil rights organizations against the Bush administration.
"Voter ID laws have become the most politicized" of governments' efforts to try to limit fraud and voting irregularities, said Richard L. Hasen, an election-law expert at Loyola Law School in Los Angeles, who filed a brief supporting the law's challengers. "It's in the nation's best interest for the court to resolve it."
Hasen is one of those who point out that the partisan division on voter ID laws often extends to the judiciary. Not only did the 7th Circuit's 2 to 1 vote to uphold Indiana's law break down along the lines of which party nominated the judges; so, with one exception, did the full court's decision not to reconsider the ruling. Michigan's Supreme Court justices -- who are elected in partisan races -- upheld that state's voter ID law, with the five Republicans voting to support it and the two Democrats opposing it.
Hasen does not believe that the decisions reflect a desire to aid one political party over another, but rather a philosophical divide on the question of whether protecting the integrity of the voting process from fraud is of equal or greater value than making sure as many eligible voters as possible take part in the process.
"People come in with a worldview, and judges are no different," Hasen said.
The Indiana case seems to offer a perfect example. The state's Republican-led legislature passed the law in 2005 requiring voters to have ID, even though the state had never prosecuted a case of voter impersonation.
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.