U.S. high court upholds voter photo I.D.

Monday's ruling gives a green light to aggressive antifraud efforts often favored by the GOP.

By , Staff writer of The Christian Science Monitor

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    Upheld: Indiana solicitor general Thomas Fisher talked to reporters outside the Supreme Court in January after a hearing on the state's voter ID law.
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Requiring prospective voters to present a photo ID before casting a ballot does not violate the right to vote.

In a 6-to-3 decision announced on Monday, the US Supreme Court upheld a 2005 Indiana law that requires voters to show government-issued photo identification before voting.

The opinion is important because it helps set a standard for the upcoming 2008 elections in November and it gives a green light to the kind of aggressive antifraud efforts favored by many Republicans. Opponents said the Indiana photo ID law is among the toughest in the nation and argued that it will discourage some voters – particularly those who are elderly, disabled, poor, or minority – from participating in the elections.

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Democratic officials went even further. They complained that the law was a thinly veiled attempt to suppress Democratic voter turnout in Indiana.

In upholding the law, the majority justices said the burdens of the voter ID requirement did not amount to a constitutional violation.

"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," writes Justice John Paul Stevens, in an opinion joined by Chief Justice John Roberts and Justice Anthony Kennedy. Three other justices concurred in the judgment, providing the Stevens opinion the necessary majority.

"This is a huge victory for defenders of such laws, and the effect of the loss for critics will begin to be felt next week when Indiana holds its presidential primary using the voter ID law the court just upheld," says Nathaniel Persily, an election law expert and professor at Columbia Law School.

Former Federal Election Commission Chairman Brad Smith said the court recognized that "not every minor burden on voting constitutes disenfranchisement." He added, "Plaintiffs failed to produce a single person actually prevented from voting by Indiana's law, and the court rightly demanded evidence of real disenfranchisement before limiting the states' ability to ask for what most Americans see as a common sense requirement – that voters present a photo ID at the polls."

Critics of the law expressed disappointment with the decision. "The Supreme Court has abdicated its role as the defender of our democracy," says Kathryn Kolbert, president of the advocacy group, People For the American Way.

"The justices should clear a path to the ballot box for voters, not help block the way," Ms. Kolbert says. "The justices are letting politicians erect barricades against some groups of voters – and that's absolutely unacceptable."

Justice Antonin Scalia concurred in the judgment, but wrote separately in opposition to Justice Stevens's approach of weighing whether the Indiana measure imposed a special burden on some voters. Justices Clarence Thomas and Samuel Alito joined Justice Scalia's concurrence.

"Weighing the burden of a nondiscriminatory voting law upon each voter and concomitantly requiring exceptions for vulnerable voters would effectively turn back decades of equal-protection jurisprudence," Scalia writes.

"A voter complaining about such a law's effect on him has no valid equal-protection claim because, without proof of discriminatory intent, a generally applicable law with disparate impact is not unconstitutional," he writes.

Three justices dissented. Justice David Souter said Indiana had failed to justify with concrete evidence the need for its voter ID law. The mere suggestion that an ID law might prevent voter fraud is not enough, he writes.

"A state may not burden the right to vote merely by invoking abstract interests, be they legitimate, or even compelling, but must make a particular, factual showing that the threats to its interests outweigh the particular impediments it has imposed," Justice Souter writes.

"The state has made no such justification here, and as to some aspects of its law, it has hardly even tried," he writes.

Most Indiana voters possess either a driver's license or some other form of photo ID. By one estimate 43,000 Indiana residents do not have the required identification.

Under the law, the state must issue a photo identification card free of charge to anyone who requests it. But critics say assembling the three documents necessary to qualify for the free ID card can be time consuming and expensive.

The burden of the law falls primarily on elderly, disabled, poor, and minority voters. Those who come within such classifications generally vote for Democrats, critics say.

Two Democratic officials, the Indiana Democratic Party, and four public interest groups challenged the law in US district court soon after it was enacted. A federal judge ruled the law constitutional. The ruling was upheld 2 to 1 by the Seventh US Circuit Court of Appeals in Chicago. The Supreme Court agreed in September to hear the appeal.

In affirming the Seventh Circuit decision, the high court said: "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."

In rejecting the allegation of attempted partisan vote suppression, Stevens writes: "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."

Stevens adds, "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."

Today's decision comes in two consolidated cases: Crawford v. Marion County Election Board (07-21), and Indiana Democratic Party v. Rokita (07-25).

In his dissent, Justice Souter likened the Indiana law to the $1.50 poll tax struck down by the high court in 1966 as an unconstitutional infringement on the right to vote. "If this court's decision in Harper v. Virginia Board of Elections stands for anything, it is that being poor has nothing to do with being qualified to vote," he writes. "The calculation revealed in the Indiana statute crosses a line when it targets the poor and the weak," Souter writes.

Stevens, in his opinion, rejected the poll tax comparison. He said the state issues photo identification cards free of charge. "For most people who need [the voter ID], the inconvenience of making a trip to the Bureau of Motor Vehicles, 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," he says.

In his concurrence, Scalia says he opposed Stevens's approach of focusing on the special burdens a law places on particular individuals. He says such an approach sets the stage for future litigation.

"This is an area where the dos and the don'ts need to be known in advance of the election, and voter-by-voter examination of the burdens of voting regulations would prove especially disruptive," Scalia says.

"A case-by-case approach naturally encourages constant litigation," the justice adds. "Very few new election regulations improve everyone's lot, so the potential allegations of severe burden are endless."

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