The U.S. Supreme Court decided on Tuesday to explore Indiana’s new voter identification laws, setting up the first high-profile test of dozens of GOP-backed state laws enacted to prevent supposed polling-place fraud.
The case, filed by the Indiana Democratic Party, likely will be heard by the Supreme Court early next year. The high court, which agreed to fast-track the case, should reach a decision by next summer.
William Groth, a lawyer for the state Democratic Party, said the court’s nine justices may decide to ask a lower court, which ruled earlier this year that Indiana’s law was not unconstitutional, to revisit the case. The court also could strike down Indiana’s law, forcing the state’s Legislature to redraft the law, or agree that it passes constitutional muster.
But Groth hinted that the court’s eventual ruling, expected only months from the 2008 elections, may be a sketch in shades of gray.
“A lot of people try to confuse this by saying ‘what’s wrong with voters identifying themselves?’ There’s nothing wrong with voters being required to identify themselves,” Groth told Roll Call on Tuesday afternoon. “The question is: What form of identification is going to be required and how strict and what kind of burdens is that going to impose on folks that don’t already have this form of identification?”
Rick Hasen, a law professor and elections expert at the Loyola Law School Los Angeles, said Indiana’s law could be in peril if the justices ask to see proof that fraud actually occurs at the polling place. Short of that, the justices may agree that the law is overly burdensome — perhaps setting the stage for challenges elsewhere.
“It all going to come down to how much scrutiny the court’s going to give,” Hasen said. “If it says, look, all you have to do is posit some rational reason, then that’s good enough and [Indiana’s] law will be upheld.”
Groth said the worst-case scenario for his client would be for the high court to simply affirm a decision earlier this year by the U.S. Court of Appeals for the 7th Circuit. By agreeing with the lower court’s 2-1 decision last January, Groth said, “it would mean open season: States could require any kind of restrictive identification on voters.”
Writing for the lower court’s majority in January, Judge Richard Posner said Indiana’s law was not unreasonable, disagreeing with critics in the state and elsewhere that civil rights are at risk. Rather, he said a more likely reality is fraud lurking at the polling place, a claim that some Democrats suggested during the recent U.S. attorneys fracas largely was Republican propaganda.
“The Indiana law is not like a poll tax, where on one side is the right to vote and on the other side the state’s interest in defraying the cost of elections or in limiting the franchise to people who really care about voting or in excluding poor people or in discouraging people who are black,” Posner wrote in the court’s majority opinion. “The purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes.”
But the court’s lone dissenter, Judge Terence Evans, said the state’s law was politically motivated. He also argued that the law should err on the side of the constitutional rights of the potentially disenfranchised voters — many of whom are poor, minorities and overwhelmingly Democratic.
“Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic,” Evans wrote. “We should subject this law to strict scrutiny … and strike it down as an undue burden on the fundamental right to vote.”
According to court documents, since the passage of the Help America Vote Act in 2002 more than half of the states have passed laws — some subsequently blocked — that require voters to prove their identity on Election Day. Indiana, whose all-Republican state government passed its law in 2005, is one of six states with the most stringent laws, requiring poll-goers to show a driver’s license or other state or federal photo identification to cast a regular ballot.
Worried about competitive 2006 House races, Groth and many Democrats suspect the White House was enticed by Indiana’s state-level GOP monopoly, making a covert push to put in place the nation’s most stringent laws, a strategy employed to a lesser degree elsewhere.
Late Tuesday, Democrats praised the Supreme Court’s decision to take up the issue. Party officials encouraged the justices to categorically strike down Indiana’s law, which Donna Brazile, chairwoman of the Democratic National Committee’s Voting Rights Institute, called a “scheme to suppress voter turnout and dilute the voter participation of people of color, seniors, young people, people with disabilities, low-income citizens, people who live in urban and rural areas, and others who lack access to a government issued photo ID.”
“The Supreme Court will now have the opportunity to right a wrong perpetrated by the GOP as a broader effort to make it harder for some Americans to vote,” said Brazile, who also is a Roll Call contributing writer. “A strong ruling will discourage other states from trying to apply what can only be described as a modern day poll tax which disenfranchises legally eligible voters.”