Indiana's voter-ID law is harmful and worthless.

The law, lawyers, and the court.
Jan. 8 2008 12:17 PM

Election Burden

Indiana's voter-ID law is harmful and worthless.

Voting booths
Voters cast their ballots

This Wednesday, in the midst of an intense political primary season, the Supreme Court will hear a case that will say a lot about the kind of democracy America aspires to be. At issue is an Indiana law requiring registered voters to present a government-issued photo ID when they seek to vote on Election Day. A law said to combat voting fraud by imposing the modest task of showing an ID may seem at first impression to be both sensible and fair. But this law is neither.

First and foremost, Indiana's law is a "solution" to a problem that doesn't exist. The voting fraud it purports to address is illusory. And the means it employs needlessly make it far more difficult for some citizens—especially those who are low-income, elderly, or lack easy access to transportation—to vote.

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The basic legal standard for assessing a voting restriction of this sort is whether the need for the restriction is sufficiently weighty to justify the burden on legitimate voters. Photo-ID supporters argue that the requirement is necessary to prevent voter fraud, and that it imposes a negligible burden because legitimate voters invariably possess a government-issued photo ID. Both claims are wrong: A photo-ID requirement, in fact, is essentially of no benefit in preventing voter fraud, and it disenfranchises scores of legitimate voters.

There is no dispute that Indiana's photo-ID requirement addresses one, and only one, species of fraud—so-called "in-person impersonation fraud," which would occur if an ineligible voter were to come to the polls and attempt to cast a ballot by falsely claiming the identity of an eligible voter. In the entire history of Indiana, the total number of reported instances of this kind of fraud is zero. Nor is there reliable evidence that in-person impersonation fraud has occurred anywhere else in the country.

That is not surprising, as this kind of fraud would be an exceedingly irrational way to attempt to affect the outcome of an election. For starters, the impersonator would need to know that the actual registered voter would not herself be showing up to vote. If the real voter had already voted, the impersonator would be exposed at once. And in any event, why would any sane person risk going to prison to influence an election by one vote? It is all the more implausible to imagine an army of impersonators coordinating their efforts on a scale that could affect an election, let alone doing so without being detected. That is why the election fraud that's actually been tried involves ballot-box stuffing or bulk submitting of absentee ballots—schemes that allow a few people to roll up a lot of fraudulent votes. A photo-ID requirement does nothing to prevent those real shenanigans.

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.

Sri Srinivasan and Walter Dellinger are partners in the Washington, D.C., office of O'Melveny & Myers. They are pro bono counsel for the Lawyers' Committee for Civil Rights Under Law and other organizations that have filed an amicus brief in the Supreme Court supporting the challenge to the Indiana law.

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