Because a photo-ID requirement exists to prevent a type of fraud that appears to be imaginary, the requirement would be hard to justify even if it imposed only a minimal impact on legitimate voters. But a photo-ID law in fact imposes substantial burdens on the right to vote. Studies generally show that somewhere in the range of 10 percent of voting-age citizens—or more than 20 million people—lack a government-issued photo ID. Many of these people do not drive and do not have a license, the most common form of government-issued ID. Lower-income, minority, and young and old voters are far more likely to be in this group. In that light, it is unsurprising that the Indiana photo-ID requirement was enacted on a strict party-line vote, with no Republican voting against the measure and no Democrat voting in its favor.
A registered voter who otherwise has no need for a government-issued photo ID should not have to obtain one solely to vote. The process of assembling the necessary documents and taking the other requisite steps involves substantial time and resources. An Indiana applicant for a nondriver's photo ID must obtain a certified birth certificate issued by the state or county of birth, which can require payment of a fee. And because some Indiana citizens were born in states or counties that require a photo ID to get the birth certificate—including Marion County, the largest county in Indiana—a person who seeks a birth certificate in order to get a photo ID could find himself trapped in an unending bureaucratic loop. Predictably, applicants often wind up making multiple trips to the Indiana Bureau of Motor Vehicles.
In defense of the law, Indiana argues that there is no evidence in the record that anyone would be prevented from voting because of the photo-ID requirement. But the question isn't whether a voter would be barred from voting—a voter who lacks a photo ID could try to get one solely to vote. The salient question is the extent of the burden on a voter who needs to get the ID, and whether that burden is needless. Imagine what it is like for a single parent with an hourly wage job and no car to take time off from work, get a child to day care, take another bus, and transfer perhaps yet again to get to the Indiana Bureau of Motor Vehicles, wait in lengthy lines, and take two buses to return at the end of the day—and potentially to have to do so more than once—all to obtain a government-issued photo ID needed only on Election Day. It would be wrong to needlessly impose such a burden even on a small number of citizens who want to cast a ballot. But the numbers, in fact, are not small. In Georgia, which has a requirement similar to Indiana's, roughly 200,000 people who have no government-issued photo ID have registered to vote, and more than 60 percent of them voted in the last general election before a photo-ID requirement was imposed.
Defenders of the voter-ID law say that the Supreme Court shouldn't second guess Indiana's legislators. In many areas of the law, that is a reasonable stance. But laws burdening the right to vote are different. As the late legal scholar John Hart Ely pointed out years ago in his classic work Democracy and Distrust, independent courts should not leave to legislators the final word on the rules by which legislators themselves are elected or ousted. At a time when partisan suspicion about the electoral process is potentially corrosive, the court needs to exercise its independent judgment about laws such as Indiana's—and guard against unfair burdening of the right to vote.
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