Crawford v. Marion County Election Board (2008)
In 2005, the State of Indiana passed a “Voter ID Law,” labeled SEA 483 that required citizens voting in person on Election Day to present a photo identification issued by the government.1 Voters could obtain a photo identification from the state free of charge if they established their residency and identity. Shortly after the law’s passage, the Democratic Party of Indiana filed suit in federal district court seeking a judgment declaring the law invalid under the Fourteenth Amendment.
One of the seminal cases in the area of voting restrictions is Harper v. Virginia Bd. of Elections (1966) that was handed down shortly after the passage of the Voting Rights Act of 1965 (VRA).2 In Harper, the court struck down a Virginia law requiring a $1.50 poll tax for residents to vote. The poll tax was an obvious attempt by Virginia to circumvent the provisions of the VRA. The tax violated the Equal Protection Clause because it made affluence an electoral standard, and was irrelevant in determining a voter’s qualifications. However, seventeen years later in Anderson v. Celebrezze (1983), the court ruled that a state is permitted to place restrictions on voting in order to protect the integrity and reliability of its elections.3 Together, these two cases created a balancing test between the potential injury to voters and a state’s right to protect the integrity of its electoral process.
In weighing Indiana’s voter ID law, Justice Stevens’ plurality opinion identified three state interests: election modernization, voter fraud, and safeguarding voter confidence.4 Election modernization involved two recently passed federal statutes (the National Voter Registration Act of 1993 (NVRA)5 and the Help America Vote Act of 2002 (HAVA)).6 These statutes required states to reexamine their election procedures. According to table 7.1, Justice Stevens devoted 11.9 percent of his opinion to discussing the NVRA and the HAVA, so they weighed heavily in the analysis. The NVRA required states to treat driver’s license applications as voter registration applications. This not only increased the number of registered voters but also inflated the states’ voter rolls. The HAVA required states to maintain a computerized list of registered voters and to verify the information submitted in voter registration applications. The HAVA permitted voters to submit a provisional ballot if their identification was challenged.
Table 7.1 Justice Stevens’ Plurality Opinion, Crawford v. Marion County Election Board (2008)
|
Content |
Number of lines |
Percentage of opinion |
|
Recently passed federal statutes on voter registration (NVRA and HAVA) |
16 |
11.85 |
|
Lack of evidence in the record that voter ID laws impose a burden on a special group of voters |
11‑ |
8.15 |
|
The burden of voter ID laws may fall on some citizens more than others (e.g., the elderly) |
10 |
7.41 |
|
Commission on Federal Election Reform led by Jimmy Carter and James Baker |
9 |
6.67 |
|
State has a valid interest in protecting the integrity and reliability of its voting process (w/o citation) |
8 |
5.93 |
|
Harper v. Virginia Board of Elections (1966) |
7 |
5.19 |
|
Voter ID Law SEA 483 |
6 |
4.44 |
|
Lower Circuit Court of Appeals decision in favor of the State of Indiana |
6 |
4.44 |
|
State of Indiana’s arguments in support of its voter ID law |
6 |
4.44 |
|
The burden on voters for obtaining a photo ID is not that significant (w/o citation) |
5 |
3.70 |
|
Case precedent following Harper |
5 |
3.70 |
|
Indiana Democratic Party’s arguments against the law |
5 |
3.70 |
Notes: N = 135. This table presents data for content that appeared at least five times in the opinion.
Source: Table created by author based on data from Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008).
Although photo identification was one way of establishing a voter’s identity, neither statute required or recommended that states adopt a photo identification law. Under a provision of the HAVA, voters were allowed to submit a bank statement or paycheck to establish their identity. Photo identification was just one option among many that states could adopt to protect the integrity of their voter rolls. Ironically, the two federal statutes the plurality relied on to defend Indiana’s strict photo ID law were intended by Congress to increase voter participation, while Indiana’s law was likely to have the opposite effect.
The second state interest cited by the plurality was preventing voter fraud. At the beginning of this section, Justice Stevens made an astounding admission—“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.”7 In other words, the State of Indiana was unable to produce any evidence of actual voter fraud at its polling places. Essentially, Indiana’s photo ID law was a cure without a disease intended to counteract some hypothetical fraud. Impersonating another person at a polling place is a felony offense, which is why it’s rare across the country. Why would someone risk a felony conviction and a term of imprisonment to add one more vote in an election with millions of votes?
Indiana did produce evidence that its voter rolls were inflated. Justice Stevens cited a newspaper article that indicated Indiana’s voter rolls contained thousands of names of people who had moved, died, or been convicted of a felony. However, he conceded that some of the inflation of the voter rolls was due to the state’s own negligence. In fact, he referenced a November 5, 2000, newspaper article that addressed the “sloppy record-keeping” in Indiana of registered voters. Hence, this was a matter of faulty record-keeping, and not fraud. Yet, the plurality inexplicably allowed Indiana to use its own “sloppy record-keeping” as a justification for imposing a photo ID law on its voters.
The third state interest was safeguarding voter confidence. The plurality devoted a total of three lines to addressing this interest. Justice Stevens noted, “public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process.”8 Therefore, the state was justified in enacting this law to increase voter confidence in its electoral process. The problem with this argument is that the enactment of the photo ID law gave citizens the perception that voter fraud was widespread in the first place. If the citizens of Indiana lacked confidence in the safety of their voting process, the Indiana Legislature was to blame for creating this false perception.
At the end of the opinion, Justice Stevens made a surprising concession—the Indiana Legislature may have passed the statute for partisan reasons. He cited a lower court judge’s pronouncement that the litigation was due to a partisan dispute that spilled into the courts. Justice Stevens stated, “It is fair to infer that partisan considerations may have played a significant role in the decision to enact SEA 483.”9 This acknowledgment raises a troubling question: what partisan motivations existed beyond the disenfranchisement of minority voters, who overwhelmingly voted for Democratic candidates? Once the plurality conceded that partisan motivations were behind the photo ID law, then it had to recognize that racial motivations were behind the law, as well. The intent of the Republican Legislators was to make it harder for minority voters to cast a vote.
Justice Souter’s dissent discussed the need to strike a balance between the fundamental right to vote, and the government’s interest in regulating elections. If a state seeks to burden the right to vote, it must present the courts with a legitimate state interest that justifies the restriction. In conducting this balancing test, Justice Souter identified several burdens imposed on voters by the photo ID law. First, there were travel costs and fees associated with obtaining one of the approved forms of state or federal ID. A voter had to travel to a branch of the Indiana Bureau of Motor Vehicles (BMV) to apply for a driver’s license or nondriver photo identification. For low-income voters, or those who are elderly, disabled, or don’t own a vehicle, this was a significant obstacle. Justice Souter cited a statistic showing that Marion County had over 900 voting precincts, but only twelve BMV branches. A weekday trip to the BMV for the average voter meant lost work time and wages, especially if the voter ended up spending most of the day making the trip.
Second, voters had to present a birth certificate, certificate of naturalization, U.S. veterans photo ID, U.S. military photo ID, or a U.S. passport, in order to obtain a valid voter ID. Obtaining these forms of identification comes with its own costs in terms of time and money. If a voter has to pay a fee to obtain a birth certificate or passport, they are indirectly paying a fee for the state’s voter ID. While these costs may not be heavy for the average voter, they are a deterrent for the poor, the elderly, or the disabled. The District Court estimated that as many as 43,000 voting-age residents of Indiana lacked a photo ID required to vote. The dissent remarked, “The State, in fact, shows no discomfort with the District Court’s finding that an ‘estimated 43,000 individuals’ (about 1% of the State’s voting-age population) lack a qualifying ID.”10 Moreover, the dissent believed this percentage was probably well below the actual percentage, since nationally, it was estimated that approximately 6–10 percent of voting-age Americans lacked a state-issued photo ID.
After establishing the burdens placed on voters, the dissent turned to the state’s interests. Did the state have a legitimate interest in imposing these costs? As already mentioned, the plurality identified four concerns raised by the state: (1) modernizing election procedures; (2) combating voter fraud; (3) addressing the state’s bloated voter rolls; and (4) protecting the public’s confidence in the integrity of elections. The dissent saw the first two as basically the same, even though the plurality addressed them under separate headings. The state sought to combat voter fraud by modernizing its election procedures.
The dissent pointed out that requiring photo ID for in-person voting did not address potential voter fraud in absentee ballots that were mailed-in. Additionally, the law didn’t address in-person voter fraud using a fake ID. Lastly, the state was unable to produce evidence of a single instance where a voter tried to impersonate someone else. “Neither the District Court nor the Indiana General Assembly that passed the Voter ID Law was given any evidence whatsoever of in-person voter impersonation fraud in the State.”11 There was also a lack of evidence that voter impersonation happened anywhere in the country. In order for this type of fraud to be effective in swaying an election, it would have to be done on a wide-scale involving tens of thousands of votes, which would make it easy to detect. It doesn’t make sense for someone to risk a felony conviction and up to five years in prison to change a couple of votes.
In addressing the inflated voter rolls, the dissent took issue with the state’s failure to make a reasonable effort to identify and remove ineligible voters from its rolls. At one point, the state was actually forced to enter a consent decree with the Federal Government agreeing to take steps to comply with the NVRA. If the state was so concerned with voter fraud, then why didn’t it take the necessary steps to clear up its voter rolls? The dissent argued that the state was basically trying to take advantage of its own negligence. It enacted a photo ID law in lieu of updating its voter rolls, which was required by federal law.
The dissent concluded by saying that if there was a lack of voter confidence in Indiana’s elections, it was entirely the state’s fault. By failing to take the necessary steps to update its bloated voter rolls, and then enacting a photo ID law, the state fostered a perception of fraud where none existed. The state could not produce a single documented case of voter impersonation in Indiana’s history. Justice Souter indicated the dissent’s willingness to defer to the Legislature’s judgment when it comes to the conduct of its elections, but the state’s justifications must be plausible. In this case, the state burdened the rights of thousands of voters in order to address a problem that didn’t exist.
NOTES
1. Senate Enrolled Act No. 483, 2005 Ind. Acts p. 2005.
2. Harper v. Virginia Board of Elections, 383 U.S. 663, 665 (1966).
3. Anderson v. Celebrezze, 460 U.S. 780 (1983).
4. Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008).
5. National Voter Registration Act of 1993, 52 U.S.C. §§ 20501–20511.
6. Help America Vote Act of 2002, 52 U.S.C. §§ 20901–21145.
7. Crawford, 128 S. Ct. at 1618–19.
8. Id. at 1620.
9. Id. at 1624.
10. Id. at 1632.
11. Id. at 1636.