Time warp – facially neutral voting restrictions upheld!

April 28, 2008

Get out your driver’s license, Vicky! You are going to need in in Indiana to vote. The Supreme Court just upheld Indiana’s law requiring valid photo ID for people who show up to vote. I guess I am not surprised that it came out this way, but I am a little surprised that it was 6-3 (instead of 5-4). Stevens, Scalia, Alito, Thomas, Roberts, and Kennedy.

I have only read the syllabus, and of course slip opinions can have errors, but so far my favorite sentence is, “Because Indiana’s cards are free, the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters’ right to vote, or represent a significant increase over the usual burden of voting.” (Yes, I know I lecture on and on about not quoting from the syllabus — it is a blog).

I was at the IL Secretary of State’s office last week and let me me tell you that is a signifcantly increased burden if the default is just showing up to vote.

OK, so jibes at the DMV, BMV, or Secretary of State’s Office or whatever, aside, this is a serious blow to anyone who believes in civil liberties. Is this really the least restrictive means available for protecting against voter fraud? (By the way, that is not the legal standard — least restrictive — it just seems to be a good one which is often employed in other constitutional cases where rights we value a lot are being limited in some way out of a compelling interest. The jurisprudential standard is that the court must (1) consider the magnitude of the first and fourth amendment rights against the precise state interests and (2) considering the extent to which those interests burden the plaintiff).

Let’s just start off by agreeing the voter fraud is bad and could be a problem. At least right now, elections are being won or lost by the slimmest of margins. But that is why the 43,000 residents of IN who are legally entitled to vote but have no such card should not be discouraged from voting! That is 1% of the eleigble voters in IN! And, guess which folks are the least likely to have such ID? Poor, people of color, and elderly folks (not that those are mutually exclusive categories).

As Souter points out, there are very few BMVs compared to polling places. You usually walk a few blocks to vote, but how far away is your BMV? What about inking thumbs like they do in developing nations? Seriously — isn’t that less restrictive? OK, I am back to reading the opinion now.

You can read the opinion here (opens as a PDF).