Should you need a photo ID to vote? If you lack such an ID, can the state require a birth certificate to cast a valid ballot?
On Wednesday, the U.S. Supreme Court will hear oral arguments about Indiana’s “photo ID law.” Supporters of the Hoosier State say they need tougher registration standards to combat voting fraud; opponents — especially Democrats — say the new hurdle is a purely partisan and unconstitutional way to keep people in poverty from voting. (Rep. Keith Ellison, D-Minn., has assisted in challenging Indiana’s law, calling it an “unconstitutional poll tax” that discriminates against minorities.)
In states around the country, officials have promoted such laws; a state judge threw out a Georgia version; a U.S. Court of Appeals panel upheld Indiana on a two-to-one vote. It’s the sort of split decision the Supreme Court often weighs in on — especially since about 20 million voting-age Americans lack driver’s licenses, according to the U.S. Census Bureau and federal transportation officials.
It helps to understand a few provisions (PDF) of the Indiana law. The photo ID is limited to certain state and federal types. (Indian tribes are not among the grantors, a source of Minnesota controversy, as the Star Tribune noted.)
‘Free’ photo ID often isn’t
If you don’t have a photo ID the state will issue one for free — but you’ll pay in time and, possibly, money. To get the Indiana ID, you must produce a stamped birth certificate — raise your hand if you don’t know where yours is — and some jurisdictions charge a fee if you want a copy. (Foreign-born voters can produce naturalization papers.) If you show up ID-less at the polls, you can vote provisionally, but you must show up at the County Election Board with the photo ID within 10 days — assuming you can get that birth certificate in time.
Not every photo-ID state goes this far; Michigan’s requirement — in play for the first time in 2008 — allows those without a photo ID to vote merely by signing an affidavit of identity.
Strictness, however, makes for a good Supreme Court case. The Supremes can go their own way, but a close reading on the Appeals Court’s Indiana judgment (PDF) provides guideposts.
An eye-opening thing about the majority decision: It acknowledges the harm. “The Indiana law will deter some people from voting,” Judge Richard A. Posner stated bluntly. “The new law injures the Democratic Party by compelling the party to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote.”
This truth, he added, is largely undone because the Democrats didn’t produce an actual voter disenfranchised in 2006, the first election held under the new rules. Therefore, Posner wrote, Indiana needed to make “less of a showing … to justify the law.”
Indiana has never found case of voter fraud
However, an actual victim isn’t the only thing that exists in the ether: So does voter fraud. In 192 years of statehood, Indiana has never prosecuted anyone for it.
Posner waved away this particular nonexistence. “The absence of prosecutions is explained by the endemic under-enforcement of minor criminal laws (minor as they appear to the public and prosecutors, at all events) and by the extreme difficulty of apprehending a voter impersonator,” he ruled.
The dissenting judge, Terence T. Evans, had great fun with this. “Voting fraud is a crime (punishable by up to 3 years in prison and a fine of up to $10,000 in Indiana) and, at oral argument, the defenders of this law candidly acknowledged that no one —in the history of Indiana — had ever been charged with violating that law. Nationwide, a preliminary report to the U.S. Election Assistance Commission has found little evidence of the type of polling-place fraud that photo ID laws seek to stop. If that’s the case, where is the justification for this law?”
Evans then archly noted a real-world example of voting denied: Indiana’s own congresswoman, Julia Carson, who was turned away from the polls because she had only her congressional ID — not a type Indiana allows. “Carson, after being turned away, went home and later returned … to cast her vote. Would most people, especially those without a vested interest in the system, do the same thing? I doubt it,” Evans asked.
His conclusion: “Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table? I think not. I would conclude that Indiana’s law imposes an undue burden on a recognizable segment of potential eligible voters and that it therefore violates those voters’ rights under the First and Fourteenth Amendments to the Constitution.”
Does it all seem a bit partisan? The Indiana governor and Legislature was Republican; Posner and fellow majoritarian, Judge Diane S. Syke’s were appointed by Republican presidents (Reagan and George W. Bush, respectively), while Evans was nominated by Democrat Bill Clinton. Such a scorecard bodes ill for photo ID opponents, given the Supreme Court’s five-to-four conservative majority.
David Brauer covers media, Minneapolis City Hall and Hennepin County politics. He can be reached at dbrauer [at] minnpost [dot] com.