Voter ID Law Is Bad for Democracy (Update 5)

In the first weeks after I started this blog, one of the issues that I wrote about repeatedly was Indiana's Voter ID law that was being challenged before the United States Supreme Court (see Voter ID Law Is Bad for Democracy, and Update 1, Update 2, Update 3, and Update 4 to that post). Well, on April 28, the Supreme Court issued a fractured ruling; unfortunately, however, the challenge to the Voter ID law was denied and Hoosiers going to the polls on May 6 will be required to show a government issued photo ID in order to vote.

I haven't yet had the time (or mental fortitude) to read the opinion (actually, there are 4 opinions: one by Justice Stevens joined by Chief Justice Roberts and Justice Kennedy, one by Justice Scalia joined by Justice Thomas and Justice Alito, one by Justice Souter joined by Justice Ginsburg, and one by Justice Breyer). For anyone interested, the opinions can be downloaded from the Supreme Court's website.

I may have more to say after I read all of the opinions, however, one portion of Justice Breyer's dissenting opinion is worth noting:

For one thing, an Indiana nondriver, most likely to be poor, elderly, or disabled, will find it difficult and expensive to travel to the Bureau of Motor Vehicles, particularly if he or she resides in one of the many Indiana counties lacking a public transportation system. See ante at 6-7 (Souter, J., dissenting) (noting that out of Indiana's 92 counties, 21 have no public transportation system at all and 32 others restrict public transportation to regional county service). For another, many of these individuals may be uncertain about how to obtain the underlying documentation, usually a passport or a birth certificate, upon which the statute insists. And some may find the costs associated with these documents unduly burdensome (up to $12 for a copy of a birth certificate; up to $100 for a passport). By way of comparison, this Court previously found unconstitutionally burdensome a poll tax of $1.50 (less than $10 today, inflation adjusted). See Harper v. Virginia Bd. of Elections, 383 U.S. 663, 664 n. 1, 666 (1966); ante, at 30 (Souter, J. dissenting). Further, Indiana's exception for voters who cannot afford this cost imposes its own burden: a postelection trip to the county clerk or county election board to sign an indigency affidavit after each election.

The other thing that I find most troubling about this law is that it imposes burdens upon citizens who show up to vote on election day, even though Indiana does not have any cases of in person voter fraud, yet the statute does not apply to absentee voting (where there is a history of voter fraud) or do anything to address problems such as voters appearing on the voting rolls in more than one county. If Indiana's Republican legislators were truly interested in the "integrity" of the voting process (recall that the legislation passed on a strictly party-line vote), then they would address the real problems with the electoral process. The fact that they have only imposed burdens to address a wholly non-existent problem while leaving real problems intact is, at least to me, prima facie evidence that the law is not justified.

Hopefully, after the elections this November, a Democratic majority in the Indiana General Assembly will be able to send a Democratic Governor a bill that repeals Indiana's absurd and undemocratic voter ID law.

Just a few comments on the issue from other notables:

The press release from the Indiana Democratic Party (which was a plaintiff in the lawsuit):

Indiana Democratic Party Chair Dan Parker expressed disappointment today in response to the Supreme Court upholding Indiana's restrictive voter identification law, but pledged that work will continue to protect the rights of Hoosiers to vote.

"Nothing has been settled on this issue, and we will carry on our fight to remove any unnecessary barriers that stand between the citizens of this state and the ballot box," Parker said. "While the Republican Party seeks to make it more difficult for hundreds of thousands of Hoosiers to exercise this most fundamental right, we are dedicated to ensuring that every voter in this state be given the full, fair opportunity to have their voice be heard in the democratic process."

"It is unfortunate that Indiana is being asked to wait until additional disenfranchisement occurs in order to fix this flawed legislation, but this will not stop the Democratic Party from continuing to stand up for those who need a voice," he added.

Contrast the Democratic position to the statements of Indiana's Republican Secretary of State, Todd Rokita, a vocal proponent of the voter ID law (and a defendant in the lawsuit) in his press release:

Today, the United States Supreme Court ruled 6-3 to uphold Indiana’s Voter ID law. Indiana Secretary of State Todd Rokita, Indiana’s Chief Election Officer and the Respondent in the case vigorously defended Indiana’s law.

“Today, Indiana won the national battle for voter protection and state’s rights. Across the country, leaders are thanking Hoosiers for raising the bar in protecting voters and improving the integrity of the election process,” stated Indiana Secretary of State Todd Rokita. “I expect many states to follow our lead.”

Many states across the nation have waited for the Court’s opinion on the two consolidated cases, Indiana Democratic Party v. Todd Rokita and Crawford v. Marion County Election Board. States like Mississippi and Texas have attempted to model their Voter ID proposals after Indiana’s law in an attempt to improve election accuracy.

“Indiana’s ID law is about accuracy - are we going to demand accuracy through integrity in our election process? The answer from the Supreme Court echoes that of the American people. Yes, we want accurate elections that protect each individual’s vote.” stated Indiana Secretary of State Todd Rokita.

The photo ID law has been tested and successfully passed the scrutiny of the courts in the past. First, by U.S. District Court Judge Sarah Evans Barker in 2006 and then upheld by the Seventh Circuit Court of Appeals which ruled 2-1 in favor of upholding Indiana's Photo ID law in 2007.

Over the last three years, the Indiana Secretary of State’s Office has maintained an aggressive plan to inform Hoosiers of the Voter ID requirement as part of a $1.25 million in voter outreach and education. This year, Secretary Rokita increased primary outreach spending, focusing on the photo ID requirement and tailoring the outreach to new voters.”

“As we have with the past seven elections in our state, we will continue to work with local election officials to inform citizens of the ID requirement,” stated Secretary Rokita. “Our office has increased our outreach efforts by almost 50% during this busy primary season. It is my hope that those who spent energy in fierce opposition will spend equal amounts of energy helping us continue to inform Hoosiers of this common-sense requirement.”

The press release from David Orentlicher (a candidate for Indiana's 7th Congressional district) who is also a law professor:

David Orentlicher criticized the decision of the United States Supreme Court today to uphold the Indiana voter ID law.

"This was a bad decision—a big step backward for voting rights law. Indiana disenfranchises voters who have ID's that are valid but that don't meet the highly restrictive requirements of the voter ID law. Students at the University of Indianapolis, for example, cannot use their student ID's to verify their identity at the polls. Moreover, the law fails to address the real area of concern with respect to voter fraud.

As the Supreme Court acknowledged, voter fraud has occurred with absentee voting, and the voter ID law does not apply to absentee voters.The Indiana voter ID law really was designed to suppress voter turn-out, and it is unfortunate that the Supreme Court has upheld the law," Orentlicher stated.

In response to the Supreme Court's decision, Sen. Obama (quoted from "Obama calls voter ID ruling 'wrong'"):

[S]aid he was disappointed today in the new Supreme Court decision that has upheld Indiana's voter ID law, calling it "wrong," and emphasizing that the law could suppress turnout among minorities and poorer voters.

"I am disappointed by today's Supreme Court decision upholding Indiana's photo identification law -- one of the most restrictive in the nation," Obama said in a written statement.

He referenced his decision to file an amicus brief when Indiana's voter ID law was first challenged, saying he did it because he believed that "it places an unfair burden on Indiana residents who are poor, elderly, disabled, or members of minority groups."

Obama pledged to ensure that all voters have "unfettered access to the polls" on May 6th, and added that he was "encouraged that the Court has not complete closed the door to future challenges to state voter ID laws that create discriminatory barriers to the right to vote."

Finally, when looking around the web to see if I could find comments from Sen. Clinton, Sen. Obama, or Sen. McCain (I wasn't able to find anything from Sen. Clinton or Sen. McCain), I came across the following statement that Sen. Obama gave last November about the Indiana voter ID:

“Voting is our most basic right and one of our most important responsibilities as Americans,” said Senator Obama. “Any law that creates discriminatory barriers to the exercise of this fundamental right should be immediately revoked – including the Indiana voter identification requirement. This law is unconstitutional, and should be struck down by the Supreme Court. More than forty years after the 24th Amendment was ratified, we must continue to ensure that all Americans, including our country’s most vulnerable citizens, have equal, unfettered access to the polls in every state.”

I also found a speech that Sen. Obama gave on the floor of the Senate in 2006 when the United States Senate was debating a national voter ID law:

Thank you very much, Mr. President. Let me just echo Senator Kennedy's strong opposition to the amendment that is offered by the Senator from Kentucky.

There is no more fundamental right accorded to United States citizens by the Constitution than the right to vote. The unimpeded exercise of this right is essential to the functioning of our democracy. Unfortunately, history has not been kind to certain citizens in protecting their ability to exercise this right.

For a large part of our nation's history, racial minorities have been prevented from voting because of barriers such as literacy tests, poll taxes and property requirements. We've come a long way. That was clear a few weeks ago when Democrats and Republicans, members of the Senate and the House stood on the Capitol steps to announce the introduction of a bill to reauthorize the Voting Rights Act. That rare and refreshing display of bipartisanship reflects our collective belief that more needs to be done to remove barriers to voting.

Right now, the Senate is finishing a historic debate about immigration reform. It's been a difficult discussion, occasionally contentious. It's required bipartisan cooperation. After several weeks and many, many amendments, we're less than an hour away from voting for cloture. Considering our progress and the delicate balance we're trying to maintain, this amendment could not come at a worse time.

Let's be clear. This is a national voter ID law. This is a national voter ID law that breaks the careful compromise struck by a 50-50 Senate four years ago. It would be the most restrictive voter ID ever enacted, one that could quite literally result in millions of disenfranchised voters and utter chaos at the state level.

Now, I recognize there's a certain simplistic appeal to this amendment. Why shouldn't we require people to have a voter ID card when they vote? Don't we want to make sure voters are who they claim to be? And shouldn't we make sure non-citizens aren't casting ballots to change the outcome of elections?

There are two problems with the argument: number one, there's been no showing that there's any significant problem with voter fraud in the 50 states. There certainly is no showing that non-citizens are rushing to try to vote: this is a solution in search of a problem.

The second problem is that historically disenfranchised groups - minorities, the poor, the elderly and the disabled - are most affected by photo ID laws. Let me give you a few statistics, overall 12% of voting age American do not have a driver's license, most of whom are minority, new U.S. citizens, the indigent, the elderly or the disabled. AARP reports that 3.6 million disabled Americans have no driver's license. A recent study in Wisconsin this year found that white adults were twice as likely to have driver's licenses as African Americans over 18. In Louisiana, African Americans are four to five times less likely to have photo IDs than white residents.

Now, why won't poor people be able to get photo IDs or Real IDs? It's simple. Because they cost money. You need a birth certificate, passport or proof naturalization and that can cost up to $85. Then you need to go to the state office to apply for a card. That requires time off work, possibly a long trip on public transportation assuming there's an office near you. Imagine if you only vote once ever two or four years, it's not very likely you'll take time off work, take a bus to pay $85 just so you can vote. That is not something that most folks are going to be able to do.

The fact of the matter, Mr. President, is that this is an idea that has been batted around not with respect to immigration but with respect to generally attempting to restrict the approach for people voting throughout the country. This is not the time to do it.

The Carter-Baker commission in 2002-2004 said fraudulent votes makeup .000003% of the votes cast. That's a lot of zeros. Let me say it a different way. Out of almost 200 million votes that were cast during these elections, 52 were fraudulent. To put that into some context, you are statistically more likely to get killed by lightning than to find a fraudulent vote in a federal election.

Mr. President, this is not the appropriate time to be debating this kind of amendment. We've got a lot of serious issues with respect to immigration. I would ask that all my colleagues reject the amendment so we can move on to the important business at hand. Thank you, Mr. President.

While I still haven't made up my mind as to who I plan to vote for on May 6, Sen. Obama's statement and speech on voting rights are certainly worth considering.