OPINION OF STEVENS, J.
CRAWFORD V. MARION COUNTY ELECTION BD.
553 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NOS. 07-21 AND 07-25
WILLIAM CRAWFORD, et al., PETITIONERS
07–21
v.
MARION COUNTY ELECTION BOARD
et al.
INDIANA DEMOCRATIC PARTY, et al.,
PETITIONERS
07–25
v.
TODD ROKITA, INDIANA SECRETARY OF STATE,
et al.
on writs of certiorari to the united states
court of appeals for the seventh circuit
[April 28, 2008]
Justice Stevens
announced the judgment of the Court and delivered an opinion in
which The Chief Justice and Justice Kennedy join.
At issue in these cases is the
constitutionality of an Indiana statute requiring citizens voting
in person on election day, or casting a ballot in person at the
office of the circuit court clerk prior to election day, to present
photo identification issued by the government.
Referred to as either the “Voter ID Law” or
“SEA 483,”[
Footnote 1] the
statute applies to in-person voting at both primary and general
elections. The requirement does not apply to absentee ballots
submitted by mail, and the statute contains an exception for
persons living and voting in a state-licensed facility such as a
nursing home. Ind. Code Ann. §3–11–8–25.1(e) (West Supp. 2007). A
voter who is indigent or has a religious objection to being
photographed may cast a provisional ballot that will be counted
only if she executes an appropriate affidavit before the circuit
court clerk within 10 days following the election. §§3–11.7–5–1,
3–11.7–5–2.5(c) (West 2006).[
Footnote 2] A voter who has photo identification but is
unable to present that identification on election day may file a
provisional ballot that will be counted if she brings her photo
identification to the circuit county clerk’s office within 10 days.
§3–11.7–5–2.5(b). No photo identification is required in order to
register to vote,[
Footnote 3]
and the State offers free photo identification to qualified voters
able to establish their residence and identity. §9–24–16–10(b)
(West Supp. 2007).[
Footnote
4]
Promptly after the enactment of SEA 483 in
2005, the Indiana Democratic Party and the Marion County Democratic
Central Committee (Democrats) filed suit in the Federal District
Court for the Southern District of Indiana against the state
officials responsible for its enforcement, seeking a judgment
declaring the Voter ID Law invalid and enjoining its enforcement. A
second suit seeking the same relief was brought on behalf of two
elected officials and several nonprofit organizations representing
groups of elderly, disabled, poor, and minority voters.[
Footnote 5] The cases were
consolidated, and the State of Indiana intervened to defend the
validity of the statute.
The complaints in the consolidated cases
allege that the new law substantially burdens the right to vote in
violation of the Fourteenth Amendment; that it is neither a
necessary nor appropriate method of avoiding election fraud; and
that it will arbitrarily disfranchise qualified voters who do not
possess the required identification and will place an unjustified
burden on those who cannot readily obtain such identification.
Second Amended Complaint in No. 1: 05–CV–0634–SEB–VSS (SD Ind.),
pp. 6–9 (hereinafter Second Amended Complaint).
After discovery, District Judge Barker
prepared a comprehensive 70-page opinion explaining her decision to
grant defendants’ motion for summary judgment. 458 F. Supp. 2d
775 (SD Ind. 2006). She found that petitioners had “not introduced
evidence of a single, individual Indiana resident who will be
unable to vote as a result of SEA 483 or who will have his or her
right to vote unduly burdened by its requirements.”
Id.,
at 783. She rejected “as utterly incredible and unreliable” an
expert’s report that up to 989,000 registered voters in Indiana did
not possess either a driver’s license or other acceptable photo
identification.
Id., at 803. She estimated that as of
2005, when the statute was enacted, around 43,000 Indiana residents
lacked a state-issued driver’s license or identification card.
Id., at 807.[
Footnote
6]
A divided panel of the Court of Appeals
affirmed. 472 F. 3d 949 (CA7 2007). The majority first held
that the Democrats had standing to bring a facial challenge to the
constitutionality of SEA 483. Next, noting the absence of any
plaintiffs who claimed that the law would deter them from voting,
the Court of Appeals inferred 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.”
Id., at 952. It rejected
the argument that the law should be judged by the same strict
standard applicable to a poll tax because the burden on voters was
offset by the benefit of reducing the risk of fraud. The dissenting
judge, viewing the justification for the law as “hollow”—more
precisely as “a not-too-thinly-veiled attempt to discourage
election-day turnout by certain folks believed to skew
Democratic”—would have applied a stricter standard, something he
described as “close to ‘strict scrutiny light.’ ”
Id., at 954, 956 (opinion of Evans, J.). In his view, the
“law imposes an undue burden on a recognizable segment of potential
eligible voters” and therefore violates their rights under the
First and Fourteenth Amendments to the Constitution.
Id.,
at 956–957.
Four judges voted to grant a petition for
rehearing en banc. 484 F. 3d 437 (CA7 2007) (Wood, J.,
dissenting from denial of rehearing en banc). Because we agreed
with their assessment of the importance of these cases, we granted
certiorari. 551 U. S. ___ (2007). We are, however, persuaded that
the District Court and the Court of Appeals correctly concluded
that the evidence in the record is not sufficient to support a
facial attack on the validity of the entire statute, and thus
affirm.[
Footnote 7]
I
In
Harper v.
Virginia Bd. of Elections, 383 U. S. 663 (1966),
the Court held that Virginia could not condition the right to vote
in a state election on the payment of a poll tax of $1.50. We
rejected the dissenters’ argument that the interest in promoting
civic responsibility by weeding out those voters who did not care
enough about public affairs to pay a small sum for the privilege of
voting provided a rational basis for the tax. See
id., at
685 (opinion of Harlan, J.). Applying a stricter standard, we
concluded that a State “violates the Equal Protection Clause of the
Fourteenth Amendment whenever it makes the affluence of the voter
or payment of any fee an electoral standard.”
Id., at 666
(opinion of the Court). We used the term “invidiously discriminate”
to describe conduct prohibited under that standard, noting that we
had previously held that while a State may obviously impose
“reasonable residence restrictions on the availability of the
ballot,” it “may not deny the opportunity to vote to a bona fide
resident merely because he is a member of the armed services.”
Id., at 666–667 (citing
Carrington v.
Rash,
380 U.
S. 89, 96 (1965)). Although the State’s justification for the
tax was rational, it was invidious because it was irrelevant to the
voter’s qualifications.
Thus, under the standard applied
in
Harper, even rational restrictions on the right to vote
are invidious if they are unrelated to voter qualifications. In
Anderson v.
Celebrezze, 460 U. S. 780 (1983),
however, we confirmed the general rule that “evenhanded
restrictions that protect the integrity and reliability of the
electoral process itself” are not invidious and satisfy the
standard set forth in
Harper. 460 U. S., at 788,
n. 9. Rather than applying any “litmus test” that would neatly
separate valid from invalid restrictions, we concluded that a court
must identify and evaluate the interests put forward by the State
as justifications for the burden imposed by its rule, and then make
the “hard judgment” that our adversary system demands.
In later election cases we have followed
Anderson’s balancing approach. Thus, in
Norman v.
Reed, 502
U. S. 279, 288–289 (1992), after identifying the burden
Illinois imposed on a political party’s access to the ballot, we
“called for the demonstration of a corresponding interest
sufficiently weighty to justify the limitation,
” and
concluded that the “severe restriction” was not justified by a
narrowly drawn state interest of compelling importance. Later, in
Burdick v.
Takushi,
504 U. S. 428 (1992), we
applied
Anderson’s standard for “ ‘reasonable,
nondiscriminatory restrictions,’ ” 504 U. S., at 434, and
upheld Hawaii’s prohibition on write-in voting despite the fact
that it prevented a significant number of “voters from
participating in Hawaii elections in a meaningful manner.”
Id., at 443 (Kennedy, J., dissenting). We reaffirmed
Anderson’s requirement that a court evaluating a
constitutional challenge to an election regulation weigh the
asserted injury to the right to vote against the “ ‘precise
interests put forward by the State as justifications for the burden
imposed by its rule.’ ” 504 U. S., at 434 (quoting
Anderson, 460 U. S., at 789).[
Footnote 8]
In neither
Norman nor
Burdick did we identify any litmus test for measuring the
severity of a burden that a state law imposes on a political party,
an individual voter, or a discrete class of voters. However slight
that burden may appear, as
Harper demonstrates, it must be
justified by relevant and legitimate state interests “sufficiently
weighty to justify the limitation.”
Norman, 502 U. S., at
288–289. We therefore begin our analysis of the con- stitutionality
of Indiana’s statute by focusing on those interests.
II
The State has identified several
state interests that arguably justify the burdens that SEA 483
imposes on voters and potential voters. While petitioners argue
that the statute was actually motivated by partisan concerns and
dispute both the significance of the State’s interests and the
magnitude of any real threat to those interests, they do not
question the legitimacy of the interests the State has identified.
Each is unquestionably relevant to the State’s interest in
protecting the integrity and reliability of the electoral
process.
The first is the interest in
deterring and detecting voter fraud. The State has a valid interest
in participating in a nationwide effort to improve and modernize
election procedures that have been criticized as antiquated and
inefficient.[
Footnote 9] The
State also argues that it has a particular interest in preventing
voter fraud in response to a problem that is in part the product of
its own maladministration—namely, that Indiana’s voter registration
rolls include a large number of names of persons who are either
deceased or no longer live in Indiana. Finally, the State relies on
its interest in safeguarding voter confidence. Each of these
interests merits separate comment.
Election Modernization
Two recently enacted federal
statutes have made it necessary for States to reexamine their
election procedures. Both contain provisions consistent with a
State’s choice to use government-issued photo identification as a
relevant source of information concerning a citizen’s eligibility
to vote.
In the National Voter
Registration Act of 1993 (NVRA), 107 Stat. 77, 42 U. S. C.
§1973gg et seq., Congress established procedures that would
both increase the number of registered voters and protect the
integrity of the electoral process. §1973gg. The statute requires
state motor vehicle driver’s license applications to serve as voter
registration applications. §1973gg–3. While that requirement has
increased the number of registered voters, the statute also
contains a provision restricting States’ ability to remove names
from the lists of registered voters. §1973gg–6(a)(3). These
protections have been partly responsible for inflated lists of
registered voters. For example, evidence credited by Judge Barker
estimated that as of 2004 Indiana’s voter rolls were inflated by as
much as 41.4%, see 458 F. Supp. 2d, at 793, and data collected
by the Election Assistance Committee in 2004 indicated that 19 of
92 Indiana counties had registration totals exceeding 100% of the
2004 voting-age population, Dept. of Justice Complaint in
United States v.
Indiana, No.
1:06–cv–1000–RLY–TAB (SD Ind., June 27, 2006), p. 4, App.
313.
In HAVA, Congress required every State to
create and maintain a computerized statewide list of all registered
voters. 42 U. S. C. §15483(a) (2000 ed., Supp. V). HAVA also
requires the States to verify voter information contained in a
voter registration application and specifies either an “applicant’s
driver’s license number” or “the last 4 digits of the applicant’s
social security number” as acceptable verifications.
§15483(a)(5)(A)(i). If an indi- vidual has neither number, the
State is required to assign the applicant a voter identification
number. §15483(a)(5)(A)(ii).
HAVA also imposes new identification
requirements for individuals registering to vote for the first time
who submit their applications by mail. If the voter is casting his
ballot in person, he must present local election officials with
written identification, which may be either “a current and valid
photo identification” or another form of documentation such as a
bank statement or paycheck. §15483(b)(2)(A). If the voter is voting
by mail, he must include a copy of the identification with his
ballot. A voter may also include a copy of the documentation with
his application or provide his driver’s license number or Social
Security number for verification. §15483(b)(3). Finally, in a
provision entitled “Fail-safe voting,” HAVA authorizes the casting
of provisional ballots by challenged voters. §15483(b)(2)(B).
Of course, neither HAVA nor NVRA required
Indiana to enact SEA 483, but they do indicate that Congress
believes that photo identification is one effective method of
establishing a voter’s qualification to vote and that the integrity
of elections is enhanced through improved technology. That
conclusion is also supported by a report issued shortly after the
enactment of SEA 483 by the Commission on Federal Election Reform
chaired by former President Jimmy Carter and former Secretary of
State James A. Baker III, which is a part of the record in these
cases. In the introduction to their discussion of voter
identification, they made these pertinent comments:
“A good registration list will ensure that citizens
are only registered in one place, but election officials still need
to make sure that the person arriving at a polling site is the same
one that is named on the registration list. In the old days and in
small towns where everyone knows each other, voters did not need to
identify themselves. But in the United States, where 40 million
people move each year, and in urban areas where some people do not
even know the people living in their own apartment building let
alone their precinct, some form of identification is needed.
“There is no evidence of extensive fraud in U.
S. elections or of multiple voting, but both occur, and it could
affect the outcome of a close election. The electoral system cannot
inspire public confidence if no safeguards exist to deter or detect
fraud or to confirm the identity of voters. Photo identification
cards currently are needed to board a plane, enter federal
buildings, and cash a check. Voting is equally important.”
Commission on Federal Election Reform, Report, Building Confidence
in U. S. Elections §2.5 (Sept. 2005), App. 136–137 (Carter-Baker
Report) (footnote omitted).[
Footnote 10]
Voter Fraud
The only kind of voter fraud
that SEA 483 addresses is in-person voter impersonation at polling
places. The record contains no evidence of any such fraud actually
occurring in Indiana at any time in its history. Moreover,
petitioners argue that provisions of the Indiana Criminal Code
punishing such conduct as a felony provide adequate protection
against the risk that such conduct will occur in the future. It
remains true, however, that flagrant examples of such fraud in
other parts of the country have been documented throughout this
Nation’s history by respected historians and journalists,[Footnote 11] that occasional
examples have surfaced in recent years,[Footnote 12] and that Indiana’s own experience with
fraudulent voting in the 2003 Democratic primary for East Chicago
Mayor[Footnote 13]—though
perpetrated using absentee ballots and not in-person
fraud—demonstrate that not only is the risk of voter fraud real but
that it could affect the outcome of a close election.
There is no question about
the legitimacy or importance of the State’s interest in counting
only the votes of eligible voters. Moreover, the interest in
orderly administration and accurate recordkeeping provides a
sufficient justification for carefully identifying all voters
participating in the election process. While the most effective
method of preventing election fraud may well be debatable, the
propriety of doing so is perfectly clear.
In its brief, the State argues that the
inflation of its voter rolls provides further support for its
enactment of SEA 483. The record contains a November 5, 2000,
newspaper article asserting that as a result of NVRA and “sloppy
record keeping,” Indiana’s lists of registered voters included the
names of thousands of persons who had either moved, died, or were
not eligible to vote because they had been convicted of
felonies.[Footnote 14] The
conclusion that Indiana has an unusually inflated list of
registered voters is supported by the entry of a consent decree in
litigation brought by the Federal Government alleging violations of
NVRA. Consent Decree and Order in United States v.
Indiana, No. 1:06–cv–1000–RLY–TAB (SD Ind., June 27,
2006), App. 299–307. Even though Indiana’s own negligence may have
contributed to the serious inflation of its registration lists when
SEA 483 was enacted, the fact of inflated voter rolls does provide
a neutral and nondiscriminatory reason supporting the State’s
decision to require photo identification.
Safeguarding Voter Confidence
Finally, the State contends
that it has an interest in protecting public confidence “in the
integrity and legitimacy of representative government.” Brief for
State Respondents, No. 07-25, p. 53. While that interest is closely
related to the State’s interest in preventing voter fraud, public
confidence in the integrity of the electoral process has
independent significance, because it encourages citizen
participation in the democratic process. As the Carter-Baker Report
observed, the “electoral system cannot inspire public confidence if
no safeguards exist to deter or detect fraud or to confirm the
identity of voters.” Supra, at 10.
III
States employ different methods
of identifying eligible voters at the polls. Some merely check off
the names of registered voters who identify themselves; others
require voters to present registration cards or other documentation
before they can vote; some require voters to sign their names so
their signatures can be compared with those on file; and in recent
years an increasing number of States have relied primarily on photo
identification.[
Footnote 15]
A photo identification requirement imposes some burdens on voters
that other methods of identification do not share. For example, a
voter may lose his photo identification, may have his wallet stolen
on the way to the polls, or may not resemble the photo in the
identification because he recently grew a beard. Burdens of that
sort arising from life’s vagaries, however, are neither so serious
nor so frequent as to raise any question about the
constitutionality of SEA 483; the availability of the right to cast
a provisional ballot provides an adequate remedy for problems of
that character.
The burdens that are relevant to
the issue before us are those imposed on persons who are eligible
to vote but do not possess a current photo identification that
complies with the requirements of SEA 483.[
Footnote 16] The fact that most voters already
possess a valid driver’s license, or some other form of acceptable
identification, would not save the statute under our reasoning in
Harper, if the State required voters to pay a tax or a fee
to obtain a new photo identification. But just as other States
provide free voter registration cards, the photo identification
cards issued by Indiana’s BMV are also free. For most voters who
need them, the inconvenience of making a trip to the BMV, gathering
the required documents, and posing for a photograph surely does not
qualify as a substantial burden on the right to vote, or even
represent a significant increase over the usual burdens of
voting.[
Footnote 17]
Both evidence in the record and facts of which
we may take judicial notice, however, indicate that a somewhat
heavier burden may be placed on a limited number of persons. They
include elderly persons born out-of-state, who may have difficulty
obtaining a birth certificate;[
Footnote 18] persons who because of economic or other
personal limitations may find it difficult either to secure a copy
of their birth certificate or to assemble the other required
documentation to obtain a state-issued identification; homeless
persons; and persons with a religious objection to being
photographed. If we assume, as the evidence suggests, that some
members of these classes were registered voters when SEA 483 was
enacted, the new identification requirement may have imposed a
special burden on their right to vote.
The severity of that burden is, of course,
mitigated by the fact that, if eligible, voters without photo
identification may cast provisional ballots that will ultimately be
counted. To do so, however, they must travel to the circuit court
clerk’s office within 10 days to execute the required affidavit. It
is unlikely that such a requirement would pose a constitutional
problem unless it is wholly unjustified. And even assuming that the
burden may not be justified as to a few voters,[
Footnote 19] that conclusion is by no means
sufficient to establish petitioners’ right to the relief they seek
in this litigation.
IV
Given the fact that petitioners
have advanced a broad attack on the constitutionality of SEA 483,
seeking relief that would invalidate the statute in all its
applications, they bear a heavy burden of persuasion. Only a few
weeks ago we held that the Court of Appeals for the Ninth Circuit
had failed to give appropriate weight to the magnitude of that
burden when it sustained a preelection, facial attack on a
Washington statute regulating that State’s primary election
procedures.
Washington State Grange v.
Washington
State Republican Party, 552 U. S. ___ (2008). Our reasoning in
that case applies with added force to the arguments advanced by
petitioners in these cases.
Petitioners ask this Court, in
effect, to perform a unique balancing analysis that looks
specifically at a small number of voters who may experience a
special burden under the statute and weighs their burdens against
the State’s broad interests in protecting election integrity.
Petitioners urge us to ask whether the State’s interests justify
the burden imposed on voters who cannot afford or obtain a birth
certificate and who must make a second trip to the circuit court
clerk’s office after voting. But on the basis of the evidence in
the record it is not possible to quantify either the magnitude of
the burden on this narrow class of voters or the portion of the
burden imposed on them that is fully justified.
First, the evidence in the record does not
provide us with the number of registered voters without photo
identification; Judge Barker found petitioners’ expert’s report to
be “utterly incredible and unreliable.” 458 F. Supp. 2d, at
803. Much of the argument about the numbers of such voters comes
from extrarecord, postjudgment studies, the accuracy of which has
not been tested in the trial court.
Further, the deposition evidence presented in
the District Court does not provide any concrete evidence of the
burden imposed on voters who currently lack photo identification.
The record includes depositions of two case managers at a day
shelter for homeless persons and the depositions of members of the
plaintiff organizations, none of whom expressed a personal
inability to vote under SEA 483. A deposition from a named
plaintiff describes the difficulty the elderly woman had in
obtaining an identification card, although her testimony indicated
that she intended to return to the BMV since she had recently
obtained her birth certificate and that she was able to pay the
birth certificate fee. App. 94.
Judge Barker’s opinion makes reference to six
other elderly named plaintiffs who do not have photo
identifications, but several of these individuals have birth
certificates or were born in Indiana and have not indicated how
difficult it would be for them to obtain a birth certificate. 458
F. Supp. 2d, at 797–799. One elderly named plaintiff stated
that she had attempted to obtain a birth certificate from
Tennessee, but had not been successful, and another testified that
he did not know how to obtain a birth certificate from North
Carolina. The elderly in Indiana, however, may have an easier time
obtaining a photo identification card than the nonelderly, see
n. 17,
supra, and although it may not be a completely
acceptable alternative, the elderly in Indiana are able to vote
absentee without presenting photo identification.
The record says virtually nothing about the
difficulties faced by either indigent voters or voters with
religious objections to being photographed. While one elderly man
stated that he did not have the money to pay for a birth
certificate, when asked if he did not have the money or did not
wish to spend it, he replied, “both.” App. 211–212. From this
limited evidence we do not know the magnitude of the impact SEA 483
will have on indigent voters in Indiana. The record does contain
the affidavit of one homeless woman who has a copy of her birth
certificate, but was denied a photo identification card because she
did not have an address.
Id., at 67. But that single
affidavit gives no indication of how common the problem is.
In sum, on the basis of the record that has
been made in this litigation, we cannot conclude that the statute
imposes “excessively burdensome requirements” on any class of
voters. See
Storer v.
Brown,
415 U. S. 724, 738
(1974).[
Footnote 20] A
facial challenge must fail where the statute has a “ ‘plainly
legitimate sweep.’ ”
Washington State Grange, 552 U.
S., at ___ (quoting
Washington v.
Glucksberg,
521 U. S. 702,
739–740, and n. 7 (1997) (Stevens, J., concurring in
judgments)). When we consider only the statute’s broad application
to all Indiana voters we conclude that it “imposes only a limited
burden on voters’ rights.”
Burdick, 504 U. S., at 439. The
“ ‘precise interests’ ” advanced by the State are
therefore sufficient to defeat petitioners’ facial challenge to SEA
483.
Id., at 434.
Finally we note that petitioners have not
demonstrated that the proper remedy—even assuming an unjustified
burden on some voters—would be to invalidate the entire statute.
When evaluating a neutral, nondiscriminatory regulation of voting
procedure, “[w]e must keep in mind that “ ‘[a] ruling of
unconstitutionality frustrates the intent of the elected
representatives of the people.’ ”
Ayotte v.
Planned Parenthood of Northern New Eng.,
546 U. S. 320, 329
(2006) (quoting
Regan v.
Time, Inc.,
468 U. S. 641, 652
(1984) (plurality opinion))”
Washington State Grange, 552
U. S., at ___ (slip op., at 8).
V
In their briefs, petitioners
stress the fact that all of the Republicans in the General Assembly
voted in favor of SEA 483 and the Democrats were unanimous in
opposing it.[
Footnote 21] In
her opinion rejecting petitioners’ facial challenge, Judge Barker
noted that the litigation was the result of a partisan dispute that
had “spilled out of the state house into the courts.” 458
F. Supp. 2d, at 783. It is fair to infer that partisan
considerations may have played a significant role in the decision
to enact SEA 483. If such considerations had provided the only
justification for a photo identification requirement, we may also
assume that SEA 483 would suffer the same fate as the poll tax at
issue in
Harper.
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. The state interests identified as
justifications for SEA 483 are both neutral and sufficiently strong
to require us to reject petitioners’ facial attack on the statute.
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.” Anderson,
460 U. S., at 788, n. 9.
The judgment of the Court of Appeals is
affirmed.
It is so ordered.
Footnote 1
Senate Enrolled Act No. 483, 2005 Ind. Acts
p. 2005.
Footnote 2
The affidavit must state that (1) the person
executing the affidavit is the same individual who cast the
provisional ballot on election day; and (2) the affiant is indigent
and unable to obtain proof of identification without paying a fee
or has a religious objection to being photographed. Ind. Code Ann.
§3–11–7.5–2.5(c) (West 2006). If the election board determines that
the challenge to the affiant was based solely on a failure to
present photo identification, the “county election board shall …
find that the voter’s provisional ballot is valid.”
§3–11–7.5–2.5(d).
Footnote 3
Voters registering to vote for the first time
in Indiana must abide by the requirements of the Help America Vote
Act of 2002 (HAVA), 116 Stat. 1666, described
infra, at
8–9.
Footnote 4
Indiana previously imposed a fee on all
residents seeking a state-issued photo identification. At the same
time that the Indiana Legislature enacted SEA 483, it also directed
the Bureau of Motor Vehicles (BMV) to remove all fees for
state-issued photo identification for individuals without a
driver’s license who are at least 18 years old. See 2005 Ind. Acts
p. 2017, §18.
Footnote 5
Specifically, the plaintiffs were William
Crawford, Joseph Simpson, Concerned Clergy of Indianapolis,
Indianapolis Resource Center for Independent Living, Indiana
Coalition on Housing and Homeless Issues, Indianapolis Branch of
the National Association for the Advancement of Colored People, and
United Senior Action of Indiana. Complaint in No. 49012050 4PL01
6207 (Super. Ct. Marion Cty., Ind., Apr. 28, 2005), p. 2.
Footnote 6
She added: “In other words, an estimated 99%
of Indiana’s voting age population already possesses the necessary
photo identification to vote under the requirements of SEA 483.”
458 F. Supp. 2d, at 807. Given the availability of free photo
identification and greater public awareness of the new statutory
requirement, presumably that percentage has increased since SEA 483
was enacted and will continue to increase in the future.
Footnote 7
We also agree with the unanimous view of
those judges that the Democrats have standing to challenge the
validity of SEA 483 and that there is no need to decide whether the
other petitioners also have standing.
Footnote 8
Contrary to Justice
Scalia’s suggestion, see
post, at 2 (opinion concurring in
judgment), our approach remains faithful to
Anderson and
Burdick. The
Burdick opinion was explicit in its
endorsement and adherence to
Anderson, see 504 U. S., at
434, and repeatedly cited
Anderson, see 504 U. S., at 436,
n. 5, 440, n. 9, 441. To be sure,
Burdick rejected the
argument that strict scrutiny applies to all laws imposing a burden
on the right to vote; but in its place, the Court applied the
“ ‘flexible standard’ ” set forth in
Anderson.
Burdick surely did not create a novel “deferential
‘important regulatory interests’ standard.” See
post, at
1–2.
Footnote 9
See National Commission on Federal Election
Reform, To Assure Pride and Confidence in the Electoral Process 18
(2002) (with Honorary Co-chairs former Presidents Gerald Ford and
Jimmy Carter).
Footnote 10
The historical perceptions of the
Carter-Baker Report can largely be confirmed. The average precinct
size in the United States has increased in the last century,
suggesting that it is less likely that poll workers will be
personally acquainted with voters. For example, at the time Joseph
Harris wrote his groundbreaking 1934 report on election
administration, Indiana restricted the number of voters in each
precinct to 250. J. Harris, Election Administration in the United
States 208 (Brookings Institution 1934). An Elec- tion Commission
report indicates that Indiana’s average number of registered voters
per polling place is currently 1,014. Election Assistance
Commission, Final Report of the 2004 Election Day Survey, ch. 13
(Sept. 2005) (Table 13) (hereinafter Final Report) (prepared by
Election Data Services, Inc.), online at http://
www.eac.gov/clearinghouse/clearinghouse/2004-election-day-survey
(all Internet materials as visited Apr. 16, 2008, and available in
Clerk of Court’s case file). In 1930, the major cities that Harris
surveyed had an average number of voters per precinct that ranged
from 247 to 617. Election Administration in the United States, at
214. While States vary today, most have averages exceeding 1,000,
with at least eight States exceeding 2,000 registered voters per
polling place. Final Report, ch. 13 (Table 13).
Footnote 11
One infamous example is the New York City
elections of 1868. William (Boss) Tweed set about solidifying and
consolidating his control of the city. One local tough who worked
for Boss Tweed, “Big Tim” Sullivan, insisted that his “repeaters”
(individuals paid to vote multiple times) have whiskers:
“ ‘When you’ve voted ’em with their whiskers on, you take
’em to a barber and scrape off the chin fringe. Then you vote ’em
again with the side lilacs and a mustache. Then to a barber again,
off comes the sides and you vote ’em a third time with the
mustache. If that ain’t enough and the box can stand a few more
ballots, clean off the mustache and vote ’em plain face. That makes
every one of ’em good for four votes.’ ” A. Callow, The Tweed
Ring 210 (1966) (quoting M. Werner, Tammany Hall 439 (1928)).
Footnote 12
Judge Barker cited record evidence containing
examples from California, Washington, Maryland, Wisconsin, Georgia,
Illinois, Pennsylvania, Missouri, Miami, and St. Louis. The
Brief of
Amici Curiae Brennan Center for Justice
et al. in Support of Petitioners addresses each of these
examples of fraud. While the brief indicates that the record
evidence of in-person fraud was overstated because much of the
fraud was actually absentee ballot fraud or voter registration
fraud, there remain scattered instances of in-person voter fraud.
For example, after a hotly contested gubernatorial election in
2004, Washington conducted an investigation of voter fraud and
uncovered 19 “ghost voters.”
Borders v.
King
Cty., No. 05–2–00027–3 (Super. Ct. Chelan Cty., Wash., June 6,
2005) (verbatim report of unpublished oral decision), 4 Election
L. J. 418, 423 (2005). After a partial investigation of the
ghost voting, one voter was confirmed to have committed in-person
voting fraud. Le & Nicolosi, Dead Voted in Governor’s Race,
Seattle Post-Intelligencer, Jan. 7, 2005, p. A1.
Footnote 13
See
Pabey v.
Pastrick, 816
N. E. 2d 1138, 1151 (Ind. 2006) (holding that a special
election was required because one candidate engaged in “a
deliberate series of actions . . . making it impossible to
determine the candidate who received the highest number of legal
votes cast in the election”). According to the uncontested factual
findings of the trial court, one of the candidates paid supporters
to stand near polling places and encourage voters—especially those
who were poor, infirm, or spoke little English—to vote absentee.
The supporters asked the voters to contact them when they received
their ballots; the supporters then “assisted” the voter in filling
out the ballot.
Footnote 14
Theobald, Bogus Names Jam Indiana’s Voter
List, Indianapolis Star, Nov. 5, 2000, App. 145.
Footnote 15
For a survey of state practice, see Brief for
Texas et al. as
Amici Curiae 10–14, and nn. 1–23.
Footnote 16
Ind. Code Ann. §3–5–2–40.5 (West 2006)
requires that the document satisfy the following:
“(1) The document shows the name of the individual to whom the
document was issued, and the name conforms to the name in the
individual’s voter registration record.
“(2) The document shows a photograph of the individual to whom
the document was issued.
“(3) The document includes an expiration date, and the
document:
“(A) is not expired; or
“(B) expired after the date of the most recent
general election.
“(4) The document was issued by the United States or the state
of Indiana.”
Footnote 17
To obtain a photo identification card a
person must present at least one “primary” document, which can be a
birth certificate, certificate of naturalization, U. S. veterans
photo identification, U. S. military photo identification, or a U.
S. passport. Ind. Admin. Code, tit. 140, §7–4–3 (2008). Indiana,
like most States, charges a fee for obtaining a copy of one’s birth
certificate. This fee varies by county and is currently between $3
and $12. See Indiana State Department of Health Web page,
http://www.in.gov/isdh/bdcertifs/lhdfees/toc.htm. Some States
charge substantially more. Affidavit of Robert Andrew Ford, App.
12.
Footnote 18
As petitioners note, Brief for Petitioners in
No. 07–21, p. 17, n. 7, and the State’s “Frequently Asked
Questions” Web page states, it appears that elderly persons who can
attest that they were never issued a birth certificate may present
other forms of identification as their primary document to the
Indiana BMV, including Medicaid/Medicare cards and Social Security
benefits statements. http://www.in.gov/faqs.htm; see also Ind.
Admin. Code, tit. 140, §7–4–3 (“The commissioner or the
commissioner’s designee may accept reasonable alternate documents
to satisfy the requirements of this rule”).
Footnote 19
Presumably most voters casting provisional
ballots will be able to obtain photo identifications before the
next election. It is, however, difficult to understand why the
State should require voters with a faith-based objection to being
photographed to cast provisional ballots subject to later
verification in every election when the BMV is able to issue these
citizens special licenses that enable them to drive without any
photo identification. See Ind. Code Ann. 9–24–11–5(c) (West Supp.
2007).
Footnote 20
Three comments on Justice Souter’s
speculation about the non-trivial burdens that SEA 483 may impose
on “tens of thousands” of Indiana citizens,
post, at 1
(dissenting opinion), are appropriate. First, the fact that the
District Judge estimated that when the statute was passed in 2005,
43,000 citizens did not have photo identification, see 458
F. Supp. 2d 775, 807 (SD Ind. 2006), tells us nothing about
the number of free photo identification cards issued since then.
Second, the fact that public transportation is not available in
some Indiana counties tells us nothing about how often elderly and
indigent citizens have an opportunity to obtain a photo
identification at the BMV, either during a routine outing with
family or friends or during a special visit to the BMV arranged by
a civic or political group such as the League of Women Voters or a
political party. Further, nothing in the record establishes the
distribution of voters who lack photo identification. To the extent
that the evidence sheds any light on that issue, it suggests that
such voters reside primarily in metropolitan areas, which are
served by public transportation in Indiana (the majority of the
plaintiffs reside in Indianapolis and several of the organizational
plaintiffs are Indianapolis organizations). Third, the indigent,
elderly, or disabled need not “journey all the way to their county
seat each time they wish to exercise the franchise,”
post,
at 29, if they obtain a free photo identification card from the
BMV. While it is true that obtaining a birth certificate carries
with it a financial cost, the record does not provide even a rough
estimate of how many indigent voters lack copies of their birth
certificates. Supposition based on extensive Internet research is
not an adequate substitute for admissible evidence subject to
cross-examination in constitutional adjudication.
Footnote 21
Brief for Petitioners in No. 07–25,
pp. 6–9. Fifty-two Republican House members voted for the
bill, 45 Democrats voted against, and 3 Democrats were excused from
voting. 3 Journal of the House of Representatives of Indiana, Roll
Call 259 (Mar. 21, 2005). In the Senate, 33 Republican Senators
voted in favor and 17 Democratic Senators voted against. 3 Journal
of the Senate of Indiana, Roll Call 417 (Apr. 12, 2005).
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