Supremes: Theoretical Fraud Trumps Real Burdens

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In January, as the U.S. Supreme Court heard arguments about Indiana’s voter identification law, we noted research that suggested such laws reduce voting across the board. This reduction occurred even though such laws don’t statistically depress registration. That the reduction occurred across all demographics was a tad surprising, since voter ID efforts are usually associated with Republicans, while Democrats are commonly associated with anti-ID efforts.

We also noted that attacking fraud as individual voters arrived at the polling place really missed the source of faux suffrage. As we reported then: “Tova Wang, who co-authored a 2006 report on voter fraud and voter intimidation for the federal Election Assistance Commission, concludes ‘although there is fraud in the system, it doesn’t take place at the polling place.’ Instead, Wang and other experts say, vote fraud is perpetrated by other means, such as stuffing ballot boxes, doctoring registration lists or tampering with voting machines.”

On Monday, the high court upheld the Indiana law on a 6-3 vote, with the majority citing the presumed damper the law would put on fraud. The majority decision, written by Justice John Paul Stevens, rejected letting voter ID’s partisan roots rule out the law, and suggested that while fraud might be unlikely, its possibility trumped the dampening effect laws have on participation.

“The only kind of voter fraud that SEA 483 (the Indiana law) addresses is in-person voter impersonation at polling places,” Stevens wrote. “The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor — though perpetrated using absentee ballots and not in-person fraud —demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.”

And while he noted that some real people have been disenfranchised by the law, the theoretical benefits the law provides outweigh that loss: “In sum, on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes ‘excessively burdensome requirements’ on any class of voters. … When we consider only the statute’s broad application to all Indiana voters we conclude that it ‘imposes only a limited burden on voters’ rights.’”

And on the matter of partisan wrangling?

“It is fair to infer that partisan considerations may have played a significant role in the decision to enact SEA 483,” Stevens wrote. “If such considerations had provided the only justification for a photo identification requirement, we may also assume that SEA 483 would suffer the same fate as the poll tax at issue in Harper. But if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. The state interests identified as justifications for SEA 483 are both neutral and sufficiently strong to require us to reject petitioners’ facial attack on the statute.”

Now this was a 6-3 vote. What did the three think? In his dissent, Justice David Souter found the law’s burdens on prospective voters trumped the theoretical abuses it was meant to deter.

“Without a shred of evidence that in-person voter impersonation is a problem in the State, much less a crisis, Indiana has adopted one of the most restrictive photo identification requirements in the country,” Souter wrote. “The State recognizes that tens of thousands of qualified voters lack the necessary federally issued or state-issued identification, but it insists on implementing the requirement immediately, without allowing a transition period for targeted efforts to distribute the required identification to individuals who need it. The State hardly even tries to explain its decision to force indigents or religious objectors to travel all the way to their county seats every time they wish to vote, and if there is any waning of confidence in the administration of elections it probably owes more to the State’s violation of federal election law than to any imposters at the polling places. It is impossible to say, on this record, that the State’s interest in adopting its signally inhibiting photo identification requirement has been shown to outweigh the serious burdens it imposes on the right to vote.”

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