A Questionable Barrier
The Supreme Court considers a law requiring voters to show a photo ID.

Thursday, January 10, 2008

IN MANY ways, yesterday's arguments before the Supreme Court revolved around fear of the unknown.

Those challenging an Indiana law requiring voters to present photo identification at polling places fear that the requirement will place an undue burden on poor, elderly and minority voters who don't already have such IDs. Such voters, they argue, often can't afford an ID or can't easily pay for or get access to birth certificates and other documents needed to obtain one. They argue that the law will have the effect of whittling down the number of these voters, who often vote Democratic.

Those defending the law -- primarily Republicans and Republican-appointed judges -- say it was enacted to prevent fraud; they fear that those intent on improperly skewing elections, especially elections expected to be close, could, for example, assume the identities of registrants who have died but whose names have not yet been removed from voter rolls.

The problem with both sides of this debate is the absence of evidence. The Indiana Democratic Party and other critics of the ID requirement lodged their lawsuit before the law took effect; their "facial challenge" is based almost entirely on speculation and hypotheticals. Those in favor of the ID requirement also are on shaky footing. While preventing voter fraud is a legitimate governmental goal, the state failed to present any evidence that in-person voter fraud is or has been a significant problem. They say that proving voter fraud is exceedingly difficult and that this fact helps to account for the scant evidence.

On its face, asking voters to show photo identification at a polling place might seem reasonable and innocuous. The lawyer for those challenging the law conceded during the hour-long oral argument that "if everybody has a photo ID in their pocket," it would be "constitutional to require them to show them at the voting booth." But everybody does not have such an ID -- and this country has a long and sordid history of using such measures as literacy tests and poll taxes to prevent whole classes of people from voting.

In this case, Indiana's procedures -- some of the strictest in the country -- cannot pass constitutional muster because they risk shutting out tens of thousands of registered voters. Those who show up at the polls without proper ID, for example, would be allowed to cast provisional ballots but would have to travel to the county clerk's office within 10 days of the election to file affidavits attesting to their identities. Many elderly and poor voters probably would not be able to follow through. Having confidence in the integrity of elections is vitally important, but Indiana must, at least, do more to ensure that it is as easy as possible for all would-be voters to secure proper identification.