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WASHINGTON – The Supreme Court will decide whether Indiana’s voter ID law is too much of a burden for some people, as the state’s Democratic Party argues, or is a prudent way to prevent voter fraud, as Republican lawmakers contend.
The Democratic Party and the American Civil Liberties Union of Indiana will file a request Monday asking the court to review the legal fight over the law. Voter ID has operated in two primaries and a fall election since the state legislature adopted a requirement that voters must produce photo identification at polling places.
The court will either agree to hear the case – ultimately choosing between the Indiana Democratic Party’s view and the state law – or refuse to consider it, which would be a victory for backers of the law.
No one can predict which cases the Supreme Court will decide to hear. Thousands are submitted for review; only a handful are chosen each year.
“However, this issue is one we see now on the front burner,” said Gerald Herbert, executive director of the Campaign Legal Center.
In 2005, the General Assembly voted along party lines to require Hoosier voters to produce a government-issued picture identification, with some exceptions for absentee ballots, the indigent and those with a religious objection to being photographed.
Two dozen states have similar laws, and the federal appeals courts have disagreed on whether they are constitutional.
Although about six states have had voter identification requirements for years, most laws were passed in the past decade, prompted by fears that people who weren’t eligible to vote would try to cast ballots, said Jennifer Bowser of the National Conference of State Legislatures.
“There’s a lot of controversy over whether that’s true,” she said of the concerns about widespread voter fraud.
Nevertheless, that was the rationale Indiana’s Republican-controlled legislature used when it approved the law in 2005.
“We have come to a time … where voters need more confidence in the election process,” Secretary of State Todd Rokita said as the Indiana General Assembly was considering the legislation.
Opponents argue that a voter ID requirement addresses a non-existent problem and deters some people from voting. They say poor, elderly or minority voters are more likely to sit out Election Day if they have to produce some kind of identification. Poor and minority voters tend to vote Democratic.
A federal court didn’t buy that contention, in part because when the state Democratic Party and the American Civil Liberties Union sued to overturn the law, they did not name anyone who was rejected at the ballot box for lack of an ID.
“By not even having found one of these people, that does not convey substantial disenfranchisement,” Judge Richard Posner said when the case was argued in Chicago.
In the 2-1 ruling he wrote for the 7th U.S. Circuit Court, Posner said, “No doubt there are at least a few such people in Indiana, but the inability of the sponsors of this litigation to find any such person to join as a plaintiff suggests that the motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls.”
Posner said the law may do more good than harm by preventing some voter fraud without affecting a large number of voters.
“The fewer people harmed by a law, the less total harm there is to balance against whatever benefits the law might confer,” he wrote.
William Groth, an Indianapolis attorney for the state Democratic Party, said the appeals court should have made the state prove that impostors have voted in Indiana and that the law would fix that. Instead, he said, Posner put the burden of proof on the opponents of the law.
“There is no evidence that this type of impostor voting has occurred in the state of Indiana,” Groth said, “yet there’s lots of evidence it occurs in absentee balloting. But the legislature chose to exempt absentee voting.”
The Election Assistance Commission reported last year that the pervasiveness of fraud was debatable. The congressionally created commission paid $100,000 to two researchers to examine voter fraud and write the report. Before it was issued, according to a New York Times review of the original research, the report was changed to downplay the findings that evidence of voter fraud was negligible.
sylviasmith@jg.net
