Supporters and critics of Indiana's law requiring voters to show a photo ID at the polls squared off in oral arguments before the Supreme Court yesterday. The heated rhetoric surrounding the case lays bare the ideological conflict of visions raging over efforts to improve election integrity.
Supporters say photo ID laws simply extend rules that require everyone to show such ID to travel, enter federal office buildings or pick up a government check. An honor system for voting, in their view, invites potential fraud. That's because many voting rolls are stuffed with the names of dead people and duplicate registrationsas recent scandals in Washington state and Missouri involving the activist group ACORN attest.
Opponents say photo ID laws block poor, minority and elderly voters who lack ID from voting, and all in the name of combating a largely mythical problem of voter fraud.
Some key facts will determine the outcome, as the court weighs the potential the law has to combat fraud versus the barriers it erects to voting. The liberal Brennan Center at NYU Law School reports that a nationwide telephone survey it conducted found that 11% of the voting-age public lacks government-issued photo ID, including an implausible 25% of African-Americans.
But U.S. District Judge Sarah Evans Barker, who first upheld Indiana's photo ID law in 2006, cited a state study that found 99% of the voting-age population had the necessary photo ID. Judge Barker also noted that Indiana provided a photo ID for free to anyone who could prove their identity, and that critics of the law "have produced not a single piece of evidence of any identifiable registered voter who would be prevented from voting."
Since then, liberal groups have pointed to last November's mayoral election in Indianapolis as giving real-life examples of people prevented from voting. The 34 voters out of 165,000 who didn't have the proper ID were allowed to cast a provisional ballot, and could have had their votes counted by going to a clerk's office within 10 days to show ID or sign an affidavit attesting to their identity. Two chose to do so, but 32 did not.
Indeed, a new study by Jeffrey Milyo of the Truman Institute of Public Policy on Indiana's voter turnout in 2006 did not find evidence that counties with more poor, elderly or minority voters had "any reduction in voter turnout relative to other counties."
Opponents of photo ID laws make a valid point that, while Indiana has a clear problem with absentee-ballot fraud (a mayoral election in East Chicago, Ind., was invalidated by the state's Supreme Court in 2003), there isn't a documented problem of voter impersonation. "The state has to demonstrate that this risk of fraud is more than fanciful. And it really isn't," says Ken Falk, legal director for the ACLU of Indiana.
But Indiana officials make the obvious point that, without a photo ID requirement, in-person fraud is "nearly impossible to detect or investigate." A grand jury report prepared by then-Brooklyn District Attorney Elizabeth Holtzman in the 1980s revealed how difficult it is to catch perpetrators. It detailed a massive, 14-year conspiracy in which crews of individuals were recruited to go to polling places and vote in the names of fraudulently registered voters, dead voters, and voters who had moved. "The ease and boldness with which these fraudulent schemes were carried out shows the vulnerability of our entire electoral process to unscrupulous and fraudulent misrepresentation," the report concluded. No indictments were issued thanks to the statute of limitations, and because of grants of immunity in return for testimony.
Even modest in-person voter fraud creates trouble in close races. In Washington state's disputed 2004 governor's race, which was won by 129 votes, the election superintendent in Seattle testified in state court that ineligible felons had voted and votes had been cast in the name of the dead. In Milwaukee, Wis., investigators found that, in the state's close 2004 presidential election, more than 200 felons voted illegally and more than 100 people voted twice. In Florida, where the entire 2000 presidential election was decided by 547 votes, almost 65,000 dead people are still listed on the voter rollsan engraved invitation to fraud. A New York Daily News investigation in 2006 found that between 400 and 1,000 voters registered in Florida and New York City had voted twice in at least one recent election.
Laws tightening up absentee-ballot fraud, which is a more serious problem than in-person voting, would be welcome. But, curiously, almost all of the groups opposing the photo ID law before the Supreme Court today either oppose specific efforts to combat absentee-ballot fraud or are silent on them.
No matter how much voter fraud is caused by voter impersonation, Stuart Taylor of the National Journal reports that "polls show voters increasingly distrust the integrity of the electoral process." He also notes that a 2006 NBC/Wall Street Journal nationwide poll found that, by a 80%-7% margin, those surveyed supported voters showing "a valid photo identification." The idea had overwhelming support among all races and income groups.
That sweeping support helps explain why, in 2005, 18 of 21 members of a bipartisan federal commission headed by former President Jimmy Carter and former Secretary of State James Baker came out in support of photo ID requirements more stringent than Indiana's. "Voters in nearly 100 democracies use a photo identification card without fear of infringement on their rights," the commission stated. Mr. Carter feels strongly about voter fraud. In his book, "Turning Point," he wrote of his race for Georgia State Senate in 1962, which involved a corrupt local sheriff who had cast votes for the dead. It took a recount and court intervention before Mr. Carter was declared the winner.
Right now, half the states have decided that some kind of ID should be required to vote. It makes sense for the Supreme Court to allow federalism to work its will state-by-state. In 2006, the court unanimously overturned a Ninth Circuit ruling that had blocked an Arizona voter ID law. In doing so, the court noted that anyone without an ID is by federal law always allowed to cast a provisional ballot that can be verified later. The court also noted that fraud "drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."
So the high court itself has already defined the nub of the case it is hearing today. On one side are those who claim photo IDs will block some voters from casting ballots, but offer scant evidence. On the other side are those who believe photo ID laws can act as a deterrent to irregularities the public increasingly views as undermining election integrity. Given the obvious political nature of the argument, here's hoping a clear Supreme Court majority reprises its 2006 finding and holds that such questions are best resolved by the elected branches of government and not by unaccountable courts.