By Robert Barnes
Washington Post Staff Writer
Tuesday, April 29, 2008
The Supreme Court ruled yesterday that states may require voters to present photo identification before casting ballots, opening the way for wider adoption of a measure that Republicans say combats fraud and Democrats say discourages voting among the elderly and the poor.
The court ruled 6 to 3 that the requirements enacted by Indiana's legislature were not enough of a burden to violate the Constitution. Because the law, which requires specific government-issued identification such as driver's licenses or passports, is generally regarded as the nation's strictest such measure, the ruling bodes well for other states that require photo ID and for states that are considering doing so.
The widely awaited election-year case, Crawford v. Marion County Election Board, was the most sharply partisan voting rights issue the court has considered since Bush v. Gore decided the 2000 presidential election.
But the divisive nature of the 2000 decision was diminished yesterday, as the usually liberal Justice John Paul Stevens wrote the main opinion and said the state law is a reasonable reaction to the threat of voter fraud.
"The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting the integrity and reliability of the electoral process," he wrote. His opinion was joined by Chief Justice John G. Roberts Jr., who is normally on the right, and Justice Anthony M. Kennedy, who is often considered a swing vote.
The opinion left open the possibility that voters who had proof that they were adversely affected by such laws could petition the courts, but made it clear that it would be difficult for them to prevail.
Three conservative justices -- Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. -- agreed with the outcome but would have closed the door more tightly against future challenges.
Three liberal justices -- David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- dissented.
"Indiana's 'Voter ID Law' threatens to impose nontrivial burdens on the voting right of tens of thousands of the state's citizens and a significant percentage of those individuals are likely to be deterred from voting," wrote Souter, whose opinion was joined by Ginsburg. Breyer filed a separate dissent.
Requiring a photo identification strikes many supporters of the law as common sense, because using it to gain entry to government buildings and airport gates has become so routine. States with Republican-majority legislatures that are adopting such requirements say they are doing so as a way to combat voter fraud and protect the integrity of elections.
But Democrats and civil rights groups say that millions of Americans lack the type of identification that Indiana requires, and that such laws discourage or even disenfranchise people who are least likely to have driver's licenses or passports: the poor, the elderly, the disabled and urban dwellers.
When the law was upheld by a panel of the U.S. Court of Appeals for the 7th Circuit, the dissenting Democratic-appointed judge called it a "not-too-thinly veiled attempt" to discourage voters who skew Democratic.
In the Indiana case before the court, the state acknowledged that it had not prosecuted any voter-impersonation cases like those the law seeks to remedy. On the other hand, those who asked the court to strike the law -- including the Democratic Party of Indiana and numerous civil rights groups -- could not point to a specific voter whose ballot was not counted because of it.
Stevens said that called for a "unique balancing analysis" on the part of the court. Because the state's intent is legitimate, he said, the challengers "bear a heavy burden of persuasion, and one not met by the evidence in the case."
Stevens noted that it is "fair" to infer that "partisan considerations may have played a significant role" in Indiana's decision to pass the law.
"But if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators," he wrote.
Souter and the dissenters said Indiana bore the burden of proof before subjecting its citizens to restrictions that would limit access to the polls.
"Without a shred of evidence that in-person voter impersonation is a problem in the state, much less a crisis, Indiana has adopted one of the most restrictive photo identification requirements in the country," Souter wrote.
For instance, Indiana recognizes only photo IDs that have an expiration date and have been issued by the state or federal government, leaving out most student or employer identification. And while other states make it easier for those without identification to file provisional ballots or sign affidavits swearing to their identity at polling places, Indiana requires a trip to the county seat.
More than 20 states, including Virginia, require some form of identification for voting.
Reaction to the ruling broke along partisan lines.
"The impact of the court's divided holding could embolden those partisans determined to use restrictive voter identification laws to elevate politics over fairness and inclusion,'' said Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee. "It is unfortunate that the Supreme Court could not come to a meaningful consensus which would have provided guidance to other States considering such legislation.''
But House Minority Leader John A. Boehner (R-Ohio) said the ruling will ensure that "the American people can have renewed faith in their government's ability to conduct fair and honest elections.''
Civil rights groups were united in their denouncement. "This is a disgraceful decision by a court that has no credibility on election issues," said Mary G. Wilson, president of the League of Women Voters of the United States.
But Republican officials who had agreed that the states could impose such restrictions found redemption.
"The court recognized that states have a legitimate interest in fighting voter fraud, and that not every minor 'burden' on voting constitutes 'disenfranchisement,' " said Bradley A. Smith, a former chairman of the Federal Election Commission.