Crawford v. Marion County Election Board

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In Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008), the U.S. Supreme Court upheld a new Indiana law requiring government-issued photo identification prior to voting. The Court held that "[t]he application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting the integrity and reliability of the electoral process."

The Court held that Indiana has a valid 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." The Court recounted problems of voter fraud, including a humorous example from the era of Boss Tweed in the New York City elections of 1868:

"'When you've voted 'em with their whiskers on, you take 'em to a barber and scrape off the chin fringe. Then you vote 'em again with the side lilacs and a mustache. Then to a barber again, off comes the sides and you vote 'em a third time with the mustache. If that ain't enough and the box can stand a few more ballots, clean off the mustache and vote 'em plain face. That makes every one of 'em good for four votes.'" A. Callow, The Tweed Ring 210 (1966) (quoting M. Werner, Tammany Hall 439 (1928)).

The Court denied the facial challenge to the Indiana law, which means a challenge to the law based on its language without any proof of its being applied in an unconstitutional manner. This photo ID law has been in effect since July 1, 2005, and Georgia also has a photo ID requirement for voting.

Interestingly, Indiana never provided any evidence of voter impersonation, but the Court said it did not have to. Rather, merely the risk of voter impersonation, which is undeniable in light of proven patterns of voter fraud like that in New York City described above, was enough justification for the photo ID law. Under this rationale, any state in the country may pass a law like that in Indiana and expect it to be upheld under a similar challenge.

Prior to the Court's ruling, some observers (such as Linda Greenhouse of the New York Times) were critical of the Democrats for appealing this case to the Supreme Court at all. It seemed clear that the votes were there on the High Court to uphold the law, and thereby set a new precedent nationwide for similar laws. States within the Ninth Circuit, which would not be so receptive to these laws because they probably impact Democratic voters more than Republicans, can immediately copy what Indiana has done even though their appellate court may have disallowed it.

The Court, in affirming the law, noted that the Democrats were unable to quantify the amount of any burden placed on voters by this photo ID requirement. Simply put, the Democrats had not proven their case and yet appealed to the Supreme Court to strike down the Indiana law anyway. That approach may have worked a decade ago, when the make-up of the Court was different, but it does not work today. Increasingly, the Court has emphasized its unwillingness to invalidate laws based on facial challenges without specific evidence of unconstitutional applications of the laws.

Justice John Paul Stevens, who typically sides with the liberal wing of the Court, surprised many by taking the lead in favor of the Indiana law and writing the plurality opinion, joined by Chief Justice John Roberts and Justice Anthony Kennedy. Justice Antonin Scalia wrote a broader opinion affirming the law because it applied to all voters equally, and he was joined by Justices Clarence Thomas and Sam Alito. Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer dissented.

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