BREAKING: Supreme Court Rejects Challenge To Indiana Voter ID Law

Victory In The Battle To Prevent Voter Fraud

By Dan McLaughlin Posted in | | Comments (21) / Email this page » / Leave a comment »

6-3 plurality decision just came down, split with 3 Justices rejecting the facial challenge. More to follow.

Justice Scalia: “This is an area where the dos and don'ts need to be known in advance of the election ...It is for state legislatures to weigh the costs and benefits of possible changes to their election codes.”

UPDATES: Opinion here. Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy, found no showing of an undue burden on various voters who challenged the voter ID law on its face. Justices Scalia, Thomas and Alito would have upheld the law on the broader ground that it imposed the same requirements equally on all voters. Both opinions give great weight to the state interest in ensuring that only eligible voters cast ballots. Justice Souter, joined by Justices Breyer and Ginsburg, dissented.

This is a major defeat for the Democrats' efforts to prevent states from requiring valid identification to vote. The lawsuit was brought by the Indiana Democratic Party.

Justice Scalia's separate opinion is redolent of the judicial hangover from Bush v. Gore in its emphasis on the hazards of permitting case-by-case judicial review of neutral rules established by state legislatures before an election takes place.

More below the fold.

Justice Stevens' plurality opinion starts by noting the rule laid down in the Court's poll tax cases (I'm omitting footnotes, citations, etc. as I go):

[E]ven rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications.... [H]owever, we [have] confirmed the general rule that "evenhanded restrictions that protect the integrity and reliability of the electoral process itself" are not invidious ...Rather than applying any "litmus test" that would neatly separate valid from invalid restrictions, ... a court must identify and evaluate the interests put forward by the State as justifications for the burden imposed by its rule, and then make the "hard judgment" that our adversary system demands.

Justice Stevens then addressed the case at bar:

While petitioners argue that the statute was actually motivated by partisan concerns and dispute both the significance of the State's interests and the magnitude of any real threat to those interests, they do not question the legitimacy of the interests the State has identified.


The first is the interest in deterring and detecting voter fraud. The State has a valid interest in participating in a nationwide effort to improve and modernize election procedures that have been criticized as antiquated and inefficient. [See National Commission on Federal Election Reform, To Assure Pride and Confidence in the Electoral Process 18 (2002) (with Honorary Co-chairs former Presidents Gerald Ford and Jimmy Carter).]

Justice Stevens quoted at length from that report, thus providing a rare example of such a bipartisan commission coming to some good. He also cited the two recent federal enactments on voting procedures. He also noted that there was sufficient evidence that voter fraud happens to justify the state in trying to prevent it:

It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation's history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana's own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor - though perpetrated using absentee ballots and not in-person fraud - demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.

There is no question about the legitimacy or importance of the State's interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear.


Judge Barker cited record evidence containing examples from California, Washington, Maryland, Wisconsin, Georgia, Illinois, Pennsylvania, Missouri, Miami, and St. Louis. The Brief of Amici Curiae Brennan Center for Justice et al. in Support of Petitioners addresses each of these examples of fraud. While the brief indicates that the record evidence of in-person fraud was overstated because much of the fraud was actually absentee ballot fraud or voter registration fraud, there remain scattered instances of in-person voter fraud. For example, after a hotly contested gubernatorial election in 2004, Washington conducted an investigation of voter fraud and uncovered 19 "ghost voters." ....After a partial investigation of the ghost voting, one voter was confirmed to have committed in-person voting fraud.

Turning to the challenge to the statute's requirements, Justice Stevens noted that some groups may be unduly burdened but found an insufficient basis to invalidate the entire statute on the record before the Court - thus leaving open the possibility of future challenges:

The burdens that are relevant to the issue before us are those imposed on persons who are eligible to vote but do not possess a current photo identification that complies with the requirements of SEA 483.16 The fact that most voters already possess a valid driver's license, or some other form of acceptable identification, would not save the statute under our reasoning in Harper, if the State required voters to pay a tax or a fee to obtain a new photo identification. But just as other States provide free voter registration cards, the photo identification cards issued by Indiana's BMV are also free. For most voters who need them, the inconvenience of making a trip to the BMV, 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.

Both evidence in the record and facts of which we may take judicial notice, however, indicate that a somewhat heavier burden may be placed on a limited number of persons. They include elderly persons born out-of-state, who may have difficulty obtaining a birth certificate; persons who because of economic or other personal limitations may find it difficult either to secure a copy of their birth certificate or to assemble the other required documentation to obtain a state-issued identification; homeless persons; and persons with a religious objection to being photographed. If we assume, as the evidence suggests, that some members of these classes were registered voters when SEA 483 was enacted, the new identification requirement may have imposed a special burden on their right to vote.

The severity of that burden is, of course, mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted. To do so, however, they must travel to the circuit court clerk’s office within 10 days to execute the required affidavit. It is unlikely that such a requirement would pose a constitutional problem unless it is wholly unjustified. And even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek in this litigation.


Petitioners ask this Court, in effect, to perform a unique balancing analysis that looks specifically at a small number of voters who may experience a special burden under the statute and weighs their burdens against the State’s broad interests in protecting election integrity....But on the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified.


Finally we note that petitioners have not demonstrated that the proper remedy—even assuming an unjustified burden on some voters—would be to invalidate the entire statute. When evaluating a neutral, nondiscriminatory regulation of voting procedure, we must keep in mind that a ruling of unconstitutionality frustrates the intent of the elected representatives of the people.

Finally, Justice Stevens rejected the argument that the statute is improper because of a partisan motivation:

It is fair to infer that partisan considerations may have played a significant role in the decision to enact SEA 483. If such considerations had provided the only justification for a photo identification requirement, we may also assume that SEA 483 would suffer the same fate as the poll tax at issue in Harper.

But 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.

Justice Scalia argued that the Court's precedents, the constitutional text and the practicalities of election litigation argued for a more sweeping rule deferring to state legislatures:

The lead opinion assumes petitioners' premise that the voter-identification law "may have imposed a special burden on" some voters... but holds that petitioners have not assembled evidence to show that the special burden is severe enough to warrant strict scrutiny, ... That is true enough, but for the sake of clarity and finality (as well as adherence to precedent), I prefer to decide these cases on the grounds that petitioners' premise is irrelevant and that the burden at issue is minimal and justified.


The Indiana law affects different voters differently, ... but what petitioners view as the law's several light and heavy burdens are no more than the different impacts of the single burden that the law uniformly imposes on all voters. To vote in person in Indiana, everyone must have and present a photo identification that can be obtained for free. The State draws no classifications, let alone discriminatory ones, except to establish optional absentee and provisional balloting for certain poor, elderly, and institutionalized voters and for religious objectors. Nor are voters who already have photo identifications exempted from the burden, since those voters must maintain the accuracy of the information displayed on the identifications, renew them before they expire, and replace them if they are lost.


This is an area where the dos and 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. A case-by-case approach naturally encourages constant litigation. Very few new election regulations improve everyone's lot, so the potential allegations of severe burden are endless. A State reducing the number of polling places would be open to the complaint it has violated the rights of disabled voters who live near the closed stations. Indeed, it may even be the case that some laws already on the books are especially burdensome for some voters, and one can predict lawsuits demanding that a State adopt voting over the Internet or expand absentee balloting.

That sort of detailed judicial supervision of the election process would flout the Constitution's express commitment of the task to the States. See Art. I, §4. It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class. Judicial review of their handiwork must apply an objective, uniform standard that will enable them to determine, ex ante, whether the burden they impose is too severe.

(Italics in original).

Justice Souter's dissent complains about the absence of public transportation in Indiana and why the new requirements had to be phased in immediately.

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BREAKING: Supreme Court Rejects Challenge To Indiana Voter ID Law 21 Comments (0 topical, 21 editorial, 0 hidden) Post a comment »

Some of us hoped Kennedy would be swayed, but if we get Stevens sometimes, too, that's just a bonus.

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"If we want to take this party back, and I think we can someday, let’s get to work." – Barry Goldwater

I think Stevens has a good opinion about 1/10, 1/20 times or so, although there is little logic to why he's good on cases or not. It does seem that he occasionally has bouts of wanting to protect federalism, although that urge is hardly consistent.

"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas

...since ours got overturned in a court case just prior to the 2006 elections.

“.....women and minorities hardest hit”

I hope every state takes the Indiana law, inserts the name of their state, and passes the law. It would be a great day for America and a bad day for vote fraud.

"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas

Now the democrats will activate plan B. Somehow they will have to start, if not already an democrat enterprise, a fake ID racket.

Look on the bright side; They will not only help ineligible citizens to vote. They will also help illegal immigrants to vote as well.

The Libs have long ago demonized conservatives to such an extent that anything is justified in their cause. At least for the willing idiots. For those that are running the show the ends always justified the means.

I have no doubt they will create new ways to rig elections.

"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777

Some common sense rulings based on LAW, not emotions or politics.

Thank GOD for the new SCOTUS.

Scalia as usual expresses it best: there is no good reason, from the Constitution, to strike down this law; but that doesn't address the question of whether the law should have been passed in the first place.

The law reflects the long-standing problem of so-called conservatives in the Republican Party not really having sound principles, and step-by-step the GOP has been heading in the wrong direction for years, and this is one more step in the wrong direction.

The wrong direction is away from the privilege of not having to have government identification, a value conservatives should have been fighting for all these years, but few have fought the fight. Once upon a time, conservatives were against a national ID, but that fight is nearly over now, we lost.

Now, the cry comes up--what about "voter fraud"?

Well, there are different sorts of voter fraud. One would be, "Joe" shows up, and votes as "Bob." While I'm not saying that's all right, it's hard to get too excited about that, as long as "Joe" votes once and only once...and Joe is, himself, a citizen. That leads to the second problem, "Joe" isn't a citizen, shouldn't vote at all. I'll come back to that in a moment. Then the third problem, which is "Joe" votes as "Joe" in one precinct, "Bob" in another, etc.

Of course, this sounds terrible, but I do wonder how much of this anyone can actually point to; meanwhile, there is another danger that our GOP actually helped create: by pushing for electronic voting, it has become so much easier to manipulate votes via the machine, and thus have fraud that is out of view and harder to catch; whereas, if ballots are paper, it's relatively easier to see if there is fraud--a stack of ballots that are identical, even down to the check-marks or x's in the boxes, would be far easier to catch.

So if the issue is voter fraud, get rid of the electronic voting, and use paper ballots.

And if someone is worried about "Joe" being registered in several places, an easy solution -- which we used for a long time -- was to compare signatures on registration and to require folks to vote in person. Even if "Joe" can physically run around to six or seven precincts on Election Day, it would be pretty easy to catch a party that is running hundreds of "Joes" there is a remedy.

What's more, this problem became more acute because of yet another "bright idea" the GOP foisted on us: Newt Gingrich's "Motor Voter" law, which broke down lots of state laws that were "burdensome" to voter registration. It used to be, in Virginia, you had to go to the board of election to register, in not the court house. Yes, lots of folks didn't bother to register, but they had every opportunity to do so, and a party or campaign could make facilitate it if they wanted to. But it certainly did make multiple registrations less likely, as well as registration from those illegally in the country. But when, at Gingrich's behest, we could register people almost anywhere, even through the mail...well, here comes voter fraud, and here comes more requirements for photo IDs.

There's a simple idea here, that the GOP no longer believes in: enhance personal freedom by solutions that undo government intrusion, rather than solving one government misstep with yet another intrusion. But the GOP doesn't believe in limited government, it merely believes in mouthing the rhetoric as a way to get votes. The GOP believes in its folks controlling the levers of government.

No, showing a driver's license is not overly burdensome, but it doesn't really solve the problem, since driver's licenses can be obtained by illegal immigrants, and can be falsified; hence the push (lately joined by Giuliani) for a national, "safe" ID. But it's an illusion! Just think a bit about what it would take to assure that every citizen has an ID that is verified, secured from fraud...and you have a massive bureaucracy.

But then the GOP isn't against that, is it? Not as long as the GOP controls it. What fools!

Fr Martin Fox

Let me guess, you supported HHSNBN for President, right?

"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas

Is the second letter in your acronym correct - or should it be W? I thought it was for "who", but correct me if I am wrong.

Correct. My bad.

"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas

First of all, this is yet another reason that so many people oppose giving illegal immigrants drivers' licenses or state IDs. Second of all, I did not see anything in Indiana's law, Justice Stevens' opinion, or Justice Scalia's opinion that would lead me to believe that we are heading towards any sort of national ID law. (As an aside, I know that some of you will jump on me for this, but here goes: so what if we were headed towards national IDs? Millions of us have them already - they are called passports.) Third, Fr. Fox suggests that we go back to paper ballots. Besides the headaches that that could cause (hanging chads, anyone?), there seem to be safeguards in place with the voting machines, at least in my state of Nevada, where a paper record of your ballot is printed along with your electronic vote when your vote is cast.

SCOTUS rules on voter ID... go read DailyKos, DemocraticUnderground and others... they are going nuts over this. Yeah I know, too late. But still.... Just watching them publicly come unglued is entertaining in itself.

Kos is calling on libs to make sure people have the right ID's ready. Go figure... after spending far too many words lamenting the Court's ruling, and far far too many words wishing the minority's dissents mattered, they are going to have to play by the rules. Now THAT is the antithesis to liberalism.

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Freedom of Religion not Freedom from Religion

but the rest is up to the states. There is NO WAY any Democrat controlled government is ever going to interfere with the "get out the vote" efforts of unions, black churches, various "public interest" groups, etc. upon which they rely to maintain themselves in power. This and similar laws will undoubtedly help to keep Red States red, but just like the gerrymandered "safe" districts, it won't do anything in the Blue states.

In Vino Veritas

Standing is easy anyone who has had their vote diluted has standing. If its a national election the entire country can sue. All we need is to get the laws on the ballots now. Once they are there it will turn Democrat districts into well stocked hunting grounds for the lawyers. (It will be like dropping a cross between piranhas and locusts on the dems.)

"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777

Oh you devious thing you.......... I rather enjoy the fatigue...

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in every election that I have either worked or observed since I was a Democratic "runner" in 1948. If found out, it is usually by accident.

Organized voter fraud, on the other hand, is noticed as soon as the "numbers crunchers" start analyzing the election results. If the election was so close that the organized voter fraud is responsible for the election results, the losing party (rightfull winner) will demand that the local district attorney bring an action.

However, most of the time that organized voter fraud occurs, proving voter fraud will not change the election results and, under the circumstances, most district attorneys and judges will view legal action as an exercise in futility.

If, and only if, the margin of victory is small enough and the voter fraud large enough will the case wind up in court. There was massive voter fraud in each of Congressman Robert Dornan's last two runs for office in California but, when all the voter fraud had been identified, "Bomber Bob" still lost. The population demographics had changed.

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