The United States Supreme Court has rejected a challenge to Indiana’s voter ID law. I wouldn’t, however, go so far as to say the Court upheld the law. It was a plurality decision with 6 justices voting to reject the challenge and 3 justices dissenting. Justice Stephens, Chief Justice Roberts, and Justice Kennedy were of the view that the law was not unconstitutional on its face and, the evidence presented by the Plaintiffs did not establish that the law was unconstitutional as it was applied. They left open the possibility, however, that the law could be applied in an unconstitutional manner. Justices Scalia, Alito, and Thomas were predictably more enthusiastic about the law. They basically characterize the burden imposed by requiring a non-expired, state or federal picture identification card, for in-person voting as being too minimal to present a Constitutional question.
Justices Souter, Ginsberg, and Breyer dissented. I found Breyer’s dissent to be interesting. He essentially agreed with Stephens’ plurality reasoning, but disagreed with his conclusion with respect to the weight to be given to the evidence in the record.
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 6â€“7 (SOUTER, J., dissenting) (noting that out of Indianaâ€™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, Indianaâ€™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. See ante, at 8â€“10 (same).
He notes Florida’s approach wherein other forms of ID are acceptable – employee ID, credit or debit card, student ID, retirement center ID, neighborhood association ID, or public assistance ID.
The Souter, Ginsberg dissent is stronger. It notes that Indiana’s purported interest in combating voter fraud really doesn’t get beyond the point of an abstract notion. First, the law in question only addresses in-person fraud which hasn’t been documented as a problem. Absentee voter fraud, with which Indiana has had a documented problem, is not addressed. Nor does it address the problem of voters being registered in more than one place, ballot miscounting, or a number of other potential problems. In fact, there is very little evidence that voter impersonation is a problem anywhere. This may be because it’s hard to detect, but it’s more likely because it’s a crime that has to be done in the open and which is unlikely to have an effect because it would be tough to do in an organized fashion. The dissent faults the legislature for lack of a phase in period – recommended in a national report on the subject and recognized by the plurality opinion. That report recommended that the states actively seek out those without identification and actively attempt to provide it. Although the state claims to have relied on this report, “the State conspicuously rejected the Reportâ€™s phase-in recommendation aimed at reducing the burdens on the right to vote, and just as conspicuously fails even to try to explain why.” Finally, the dissent critiques the needlessly cumbersome post-election process. “Nothing about the Stateâ€™s interest in fighting voter fraud justifies this requirement of a post-election trip to the county seat instead of some verification process at the polling places.” The State argued that requiring verification at the polls would cause a back-up at the polling places. But, this undercuts its premise that very, very few people are being disenfranchised by the law.
The Stateâ€™s requirements here, that people without cars travel to a motor vehicle registry and that the poor who fail to do that get to their county seats within 10 days of every election, likewise translate into unjustified economic burdens uncomfortably close to the outright $1.50 fee we struck down 42 years ago. Like that fee, the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise.