WASHINGTON – When Hoosiers must produce a photo ID before they vote, is it a straightforward protection against phantom voters or a subtle way to reduce the number of ballots cast by Democratic-leaning poor people and minorities?
The Supreme Court will hear all sides Wednesday morning when, for an hour, civil rights lawyers will take their best shot at Indiana’s 3-year-old law requiring a driver’s license or other picture identification before any Hoosier visits the polling booth on Election Day.
Lawyers for the state will defend the statute, which is similar to laws other states have passed but is the strictest in the U.S. Opponents will say it is an unconstitutional intrusion on Americans’ right to vote.
Advocates on both sides agree voter ID laws might deter some people from voting. What they disagree about is whether there’s enough fraud to warrant the tougher rules and whether the photo ID requirement is much of a barrier to voting.
What do Hoosiers have to do before they vote?
The 2005 legislation required voters, for the first time, to prove who they are before they vote. A government-issued photo ID – driver’s license, passport or identification card issued to non-drivers are the most common forms – must be presented to polling officials.
A person who shows up to vote without a picture ID may cast a provisional ballot but must present a photo ID to the county election board within 10 days.
People who vote by mail-in absentee ballot before Election Day are exempt. People who have religious objections to being photographed and indigent people can cast a provisional ballot on Election Day but must go to the county courthouse within 10 days to sign an affidavit swearing they are who they say they are.
Isn’t a photo ID pretty commonplace these days?
That’s exactly the logic of the appeals court, which ruled along party lines in Indiana’s favor. (The Republican-appointed judges supported the state law; the judge appointed by a Democratic president opposed it.)
“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),” Judge Richard Posner, a Republican appointee, wrote in the 2-1 majority opinion.
Election law expert Robert Kelner argues that “most Americans think that requiring identification at the polls is a modest and reasonable further step in addition to the registration laws to reduce the chance of fraud.”
But the Transportation Department and Census Bureau say there are 20 million to 21 million voting-age Americans without driver’s licenses.
In Indiana, “if you don’t have an ID with you, you don’t vote,” said Tova Wang of the Century Foundation and a critic of the Hoosier law.
Has the voter ID law prevented anyone from voting?
The Indiana League of Women voters told the Supreme Court that the rule is a barrier for the elderly, poor people and members of faiths that forbid photos or eschew involvement with government.
In a friend-of-the-court filing, the group described the situations of three people who could not vote in 2006 or this year because of the law:
•A 92-year-old woman who prefers to vote in person rather than by absentee. Mary Eble no longer drives and does not have a driver’s license.
Because she lives in a rural part of Indiana that does not have a nearby Bureau of Motor Vehicles branch, Eble would have to travel 45 minutes to get to a branch where she could get a photo ID substitute for a driver’s license.
The League of Women Voters told the Supreme Court that before Elbe could go to the BMV for a picture ID, she would have to get a certified copy of her birth certificate, which is at a courthouse an hour away. There is no public transportation in Eble’s county.
•A low-income stay-at-home mom who lives in Indiana but had not replaced her Michigan driver’s license. To obtain her Michigan birth certificate to prove her identity at an Indiana BMV, she would have to pay $50 for an expedited copy, money she did not have.
•A 78-year-old Korean War veteran whose wallet and ID were stolen two weeks before the 2007 election. The BMV gave him incorrect information about obtaining a replacement, so he had to vote provisionally and then visit the Marion County Courthouse to sign an affidavit after the election. He does not drive and often cannot afford a taxi.
“Should the presumption be that the voter is dishonest and not entitled to have the right to vote unless they overcome some proof burden to show that they are actually are entitled to vote? Or should the presumption be that people who seek to register and vote unless somebody … has evidence to show that they’re not entitled to do so?” asked Deborah Goldberg, director of the Democracy Program at the Brennan Center for Justice at New York University School of Law.
What does Indiana say about that?
In his argument to the court, Attorney General Steve Carter said the law “provides a reasonable method of verifying voter identity – a fundamental, pre-existing voter-eligibility criterion.”
He said there have been many cases of voter fraud of various types in Indiana over the years, and “even if the voter ID law would not have prevented these particular instances of election fraud, the Indiana General Assembly had reason to worry that a culture of election fraud was spreading.
“The need for better, yet still reasonable, fraud-prevention measures is self-evident,” he said.
Does everyone agree that the requirement is reasonable?
No. Indiana’s Democratic Party, backed by the Indiana Civil Liberties Union, thinks it’s a solution in search of a problem.
Julie Fernandes, an analyst with the Leadership Conference on Civil Rights, said voter ID laws are akin to poll taxes, which the Supreme Court said are unconstitutional.
She said voter ID laws, like poll taxes, make sense from one perspective: A poll tax helps underwrite the cost of an election and at $5 or $10, isn’t much money.
“But what’s wrong with a poll tax is not that it doesn’t make rational sense,” Fernandes said. “It’s that it impinges on a fundamental right to vote that disproportionately (affects) African-Americans and Latinos.”
Do studies back that up?
A study by Rutgers University professors found that turnout was lower in the 2004 election in states that had various kinds of voter ID requirements and that a larger percentage of blacks (6 percent) and Hispanics (10 percent) were less likely to vote than whites (2 percent).
But a study of voter turnout in Indiana, produced by a University of Missouri professor, said turnout increased statewide after the voter ID law went into effect, and “there is no consistent evidence that counties that have higher percentages of minority, poor, elderly or less-educated population suffer any reduction in turnout relative to other counties.”
Is there a lot of voter fraud?
Depends on whom you ask.
Todd Rokita, Indiana’s secretary of state and the top election official, says he’s asked about it all the time, and that his office had “dozens” of complaint calls in the last election.
Voter fraud is not rampant, Kelner said, but when “a lot is at stake – whether it be money in a commercial context or power in a political context – people will exploit the gaps in the system. It is human nature.”
But Goldberg says photo ID requirements deal with only one type of voter fraud: impersonating someone.
She said the photo ID laws don’t address ballot box stuffing or hiding some ballots, destroying voter registration forms, falsely registering large lists of people and vote buying.
Do voter ID laws benefit one political party over the other?
The state Democratic Party sued the state over the law, so it’s logical to think that Democrats consider their candidates more likely to be hurt by tougher voting requirements than GOP candidates.
The judge who dissented in the appeals court ruling, Terence Evans, said: “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 thought to skew Democratic.”
Carter rejects that contention. He told the Supreme Court that the voter ID law “is a party-neutral, good government reform that helps update a generally antiquated election system.”
What’s the federal government’s position?
The Bush administration sides with Indiana’s law.
“Any burden that is imposed by the voter ID law,” said the U.S. solicitor general, who argues on behalf of the Bush administration before the Supreme Court, “is more than justified by the state’s interest in combating in-person vote fraud. … In a close race, even a handful of fraudulent votes could invalidate an entire election.”
What is the Supreme Court likely to do?
The Supreme Court did not explain why it agreed to review the Indiana law – it never explains why it takes or rejects a case – so we can’t read anything into the fact that the justices will consider the arguments.
Rulings are typically issued months after the oral arguments. It’s possible that because 2008 is a presidential election year and that a number of primaries are in the first three months of the year, the court may speed up its decision.