Crawford v. Marion County Election Board (2008)

What the Indiana Voter ID Law Actually Does

Before I proceed, here's a quick summary of Indiana's voter ID law, also known as SEA 483:

1. It applies only to voting conducted face-to-face at ordinary polling precincts. It does not apply to voters who cast absentee ballots or who otherwise cast ballots at state-licensed facilities, such as nursing homes.
2. Voters who show up to vote must provide federal or state photo ID in order to have their votes counted in an ordinary manner.
3. Voters who show up to vote without photo ID may fill out a provisional ballot, but must furnish, within 10 days, either: (a) a photo ID; or (b) a signed affidavit, which must be filed in person at the county clerk's office, claiming either indigent status or a religious objection to being photographed.

A Very Real Danger of Voter Disenfranchisement

There's an obvious problem with the new law: It has the practical effect of discouraging voters with limited time, funds, or mobility from voting if they do not have a driver's license. Speaking from experience as someone who does not drive, there are two ways that I can obtain a state photo ID: I can show up at the local office of the Department of Motor Vehicles and wait in line for hours to have my state ID card processed, or I can ride out to a suburban office 20 miles away and get my ID processed in less than an hour. These aren't insurmountable obstacles for me, but requiring every voter to do this would have the net effect of suppressing voter turnout, especially in low-income communities.

Indiana's Approach is Unusually Extreme

Mississippi's new Republican secretary of state, Delbert Hosemann, supports voter ID--but not based on the Indiana model. His proposed legislation would allow voters to use utility bills and other forms of alternate identification to vote, and involves a less onerous provisional ballot process. While his model of voter ID legislation would probably still discourage a small number of voters from showing up at the polls, Hosemann's proposal seems to be written by someone who is at least conscious of the danger that voter ID could pose to voter participation, and who has taken specific steps to limit that danger. Indiana's legislation was written in a manner that demonstrates, at best, blindness to that danger.

Breyer, Ginsburg, and Souter: The Dissenting Bloc

The dissents of justices Stephen Breyer and David Souter (the latter joined by Justice Ruth Bader Ginsburg) share my concerns about Indiana's voter ID law. As Justice Souter writes:

The State's requirement 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.

Stevens, Kennedy, and Roberts: The Accommodating Bloc

But justices Breyer, Ginsburg, and Souter represent the losing end of what is, in effect, a 6-3 ruling. The two decisive three-justice pluralities each uphold the Indiana law, but on different grounds.

The "centrist" opinion was written by Justice John Paul Stevens and joined by Chief Justice Roberts and Justice Kennedy. While Justice Stevens admits that the legislation may burden some voters, he argues that the case has not been made that the burden is severe enough, or would be widespread enough, to run afoul of federal civil rights protections. In other words, the Stevens plurality would be willing to reexamine laws like these if it could be demonstrated that they had the demonstrated effect of substantial voter disenfranchisement.

Scalia, Alito, and Thomas: The Radical Bloc

Justice Antonin Scalia, in a ruling joined by justices Thomas and Alito, goes a step further in arguing that the effect of a voting restriction is completely irrelevant to its constitutionality. What matters is the legislation's intent. Justice Scalia's opinion, if it were ever shared by a majority of justices, would effectively overturn a half-century of Supreme Court voting rights precedents.

Scalia and the "Discriminatory Intent" Standard

This is the same standard that Scalia controversially applied to the First Amendment's free exercise clause in Employment Division v. Smith (1990), in which he held that neutral laws restricting religious practices (such as, for example, a badly-written law addressing public alcohol consumption that had the unintended effect of banning Communion) are not unconstitutional unless they are specifically written with the objective of restricting religious practices.

It is not clear to me how members of the Court can be expected to ascertain what legislators really intended to do when they passed a given law, or what happens if the legislature passes a restrictive neutrally-intended law that is signed by a discriminatory governor, or vice versa.

Would Scalia Allow Poll Taxes?

But there is something more troubling about the Scalia opinion, as Loyola law professor Rick Hasen observes:

It is unclear to me ... whether Justice Scalia would today uphold a poll tax like that struck down by the Court ... Certainly Justice Scalia seems to think that if a law doesn't burden most people, it should be upheld unless it imposes a "severe and overall" burden on the right to vote.

Hagen's concerns are unquestionably valid. Justice Scalia would most likely reject a poll tax law now, but if he were to apply his logic consistently, he would permit the use of poll taxes in cases where the intent was to raise funds rather than disenfranchise voters--regardless of how many voters might happen to be disenfranchised in the process.

What This Ruling Tells Us

This ruling has told us two very important things about the Supreme Court:

1. Justice Stevens really is a maverick, not a liberal--as shown in FCC v. Pacifica (1978), in which his ruling allowed FCC regulation of indecent broadcast content, and his dissent in Texas v. Johnson (1989), in which he defended laws banning flag desecration.
2. Chief Justice Roberts and Justice Alito are very different people. If Chief Justice Roberts had gone along Justice Scalia's ruling, or if Justice Alito had gone along with Justice Stevens' ruling, they would have created a four-justice plurality. As it stands, Crawford represents a precipice between the excessive compromise of Justice Stevens' opinion and the calculated naiveté of Justice Scalia's opinion.