Crawford v. Marion County, 128 S. Ct. 1610; 170 L. Ed. 2d 574 (2008)

Facts—William Crawford and other petitioners (including the Indiana Democratic Party) challenged the constitutionality of Indiana’s Voter ID Law (SEA 483) that requires citizens voting in person on election day to present photo identification issued by the government or cast a provisional ballot contingent on bringing such identification within 10 days (the state offers free identification to those who can establish their residence and identity). An extensive opinion by a District Court upheld the law as did a divided panel of the Seventh U.S. Court of Appeals.

Question—Does Indiana’s Voter ID Law violate the equal protection clause of the Fourteenth Amendment?


ReasonsJ. Stevens (6–3). Harper v. Virginia Bd. of Elections (1966) established that a state cannot condition voting on payment of a tax, but evenhanded restrictions to protect balloting have been accepted under a balancing test. In the case at hand, Indiana supports its restrictions as measures designed to promote election modernization, avoid voting fraud, and safeguard voter confidence. In establishing the National Voter Registration Act of 1993, Con- gress attempted both “to increase the number of registered voters and protect the integrity of the electoral process.” In some counties, Indiana’s voter rolls have been inflated by as much as 41.4 percent. While the federal law did not require voter identification, it was consistent with such a requirement. Although there are no reported examples of voter impersonation in Indiana, there “is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters.” Safeguarding voter confidence

is also a legitimate state objective. Although Indiana’s requirement for photo identification is burdensome, it is “mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted.” In balancing the law against its attackers, the Court notes that petitioners have not established the number of voters without photo identification and fails to quantify how many poor or elderly voters are af- fected. The fact that the law was overwhelmingly supported by Republicans over Democrats is irrelevant as long as the state’s interests are “both neutral and sufficiently strong.”

J. Scalia, concurring, would prefer to settle the case “on the grounds that petitioners’ premise [that the law burdens some voters more than others] is irrelevant and that the burden at issue is minimal and justified.” Although the law might have different impacts, it is applied uniformly to all voters and provides state-issued photos for those who lack them. Any “disparate impact” is irrelevant absent “proof of discriminatory intent.” An “individual-focused” or “case-by-case approach” encourages undue litigation.

J. Souter, dissenting. The law imposes “nontrivial burdens on the voting rights of tens of thousands of the State’s citizens” and is unconstitutionally applying prior balancing standards. Travel costs, fees needed to secure identification, and the like will especially impact “poor, old, and disabled voters who do not drive a car.” The state’s justifications are unpersuasive and do not reach problems of absentee ballots. The fraud the state is attempting to detect is unlikely to be significant, and while the state claims to be following recommendations of the Carter-Baker Commission, it rejected its phase-in recommendation. “The State’s asserted interest in modernizing elections and combating fraud are decidedly modest; at best, they fail to offset the clear inference that thousands of Indiana citizens will be discouraged from voting.”

J. Breyer, dissenting. The state’s interests must be balanced against the “disproportionate burden upon those eligible voters who lack a driver’s license or other statutorily valid form of photo ID.” Indiana’s requirements go beyond less restrictive photo identification systems adopted by Florida and Georgia, which accept a wider range of identification.

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