In a blow to voting rights, Indiana's strict voter ID law, which requires government-issued photo identification every time a person votes, has been upheld by the United States Supreme Court. This deeply disappointing decision will undoubtedly give new momentum to efforts to expand voter ID laws in many states (Oklahoma, Missouri, Kansas, and possibly Illinois appear likely to pass new voter ID laws in the immediate future). However, progressive legislators and advocates can take the offense in broadening the debate over the real sources of fraud and intimidation in our elections.
The Court's Decision is a Big Step Backward for Voting Rights:
Indiana's voter ID law requires that voters provide a state or federal ID with a photograph every time they vote. The only exceptions to the law are for those who are indigent, who have a religious objection to being photographed, or who live in a state-licensed facility that serves as their polling place, such as a nursing home. Indigent and religious exemption voters must vote by provisional ballot and then travel to the county seat within 10 days of the election to execute a written affirmation that they qualify for the exemption under penalty of a felony. The law does not place any requirement on absentee voters.
The Supreme Court decision refused to undertake any meaningful analysis of the burden the law imposes on voters, or of the validity of the state's claim that the law was necessary to prevent voter fraud. As was noted in Justice Souter's dissent, the majority of the Court ignored compelling evidence that the burden was great enough to prevent a large majority of voters without ID who did come to the polls from having their votes counted, and they ignored fundamental weaknesses in the state's assertion that the ID law served a legitimate purpose. Justice Souter noted:
That the need to travel to the county seat each election amounts to a high hurdle is shown in the results of the 2007 municipal elections in Marion County, to which Indiana's Voter ID Law applied. Thirty-four provisional ballots were cast, but only two provisional voters made it to the County Clerk's Office within the 10 days.[...] All 34 of these aspiring voters appeared at the appropriate precinct; 33 of them provided a signature, and every signature matched the one on file...
And in analyzing the state's argument that the law was necessary to combat voter fraud, Justice Souter noted in dissent that the law concentrated only on in-person fraud while ignoring issues of "ballot-stuffing, ballot miscounting, voter intimidation" and other potential problems, despite the fact that: " the State has not come across a single instance of in-person voter impersonation fraud in all of Indiana's history."
The court, in deciding this case, has taken the nation far afield from where we were when the poll tax was struck down. Now, if an election law doesn't hurt the ability of the majority of people to vote, it appears safe from facial challenge and those who end up being prevented from voting will have to bring their challenges after the fact, a much more difficult process that will never get their lost votes back. As one elections expert put it, " I fear that [...] this opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections."
How Progressive Leaders can Be Proactive on Voting Rights Legislation: As new photo ID laws and other ways to disenfranchise voters are promoted in states in the wake of the Supreme Court decision, progressive legislators need to educate their colleagues and constituents about how these laws are merely a ploy to keep minority, poor, and less-educated voters from participating in elections, and the fact that the crisis these bills are supposed to solve -- supposed in-person voter fraud -- is not a problem anywhere in the country.
More proactively, progressive legislators and advocates can change the nature of the debate by simultaneously debunking the voter fraud myths used to advance voter ID laws and putting forward strong measures that combat the real threats to our elections and voting rights, such as voter intimidation and convoluted registration requirements that have nothing to do with ballot integrity. When ID laws are proposed, anti-voter suppression and well-reasoned election integrity amendments should be offered as alternatives. Unlike voter fraud, voter suppression -- intimidating voters, spreading misinformation to prevent people from voting such as sending out incorrect poll site information, and challenging the eligibility of groups of voters without particular knowledge that they are ineligible (called "voter caging") -- are real practices that occur throughout the country. Voter ID laws themselves open up new doors for voter intimidation and misinformation as ill-trained poll workers ask for ID that isn't required and partisans lie to voters about ID requirements in an attempt to discourage voting.
However, if voters are forced to provide photo identification at the polls, there is no reasonable justification remaining for not implementing election day registration (EDR), so EDR amendments should be attached to any voter ID bill that is proposed. As an example, an EDR provision, along with an anti-caging provision, was recently incorporated in a voter ID bill approved in the Oklahoma Senate.
The Supreme Court's Indiana decision is a giant step backwards in election law jurisprudence, but elected leaders and advocates need to take action to assure that it does not translate into more bad state legislation and that a much broader debate follows on the real issues that undermine the integrity of our elections.