Politics & Policy

Judge This

A strong 6-3 majority of the U.S. Supreme Court upheld an Indiana voter-identification law in a decision handed down Monday. The decision in Crawford v. Marion County Election Board underscores the importance of nominating conservative justices who understand the importance of judicial restraint. More than half of the states have passed laws requiring the presentation of some form of identification in order to vote. It is easy to imagine a more activist court overturning those democratically enacted laws based on a few liberal groups’ spurious claims of democracy denied.

Opponents of the law argued that there was no evidence of in-person voter fraud in Indiana and insufficient evidence of in-person voter fraud in other states to justify a law requiring the presentation of photo ID. They pointed to the partisan origins of Indiana’s law (it passed through a Republican-controlled state legislature on a party-line vote) as evidence of their preferred hypothesis: Republicans favor the law, critics said, because it discourages Democrat-leaning constituencies from voting.

While it’s true that Justice John Paul Stevens cited little evidence of in-person voter fraud in his lead opinion, examples abound. John Fund, author of Stealing Elections: How Voter Fraud Threatens Our Democracy, has reported several instances from the recent past in which the evidence for in-person voter fraud was clear, but in which prosecutors failed to obtain indictments. Voter impersonation is hard to detect and even harder to prosecute. Indiana’s law requiring ID at the polls serves a legitimate public interest by making it more difficult to commit this crime.

Contrary to the critics’ claims, the law does not unduly burden any Indiana voters. Justice Stevens, one of the court’s more liberal members, noted that it lacked the burdensome characteristics of a poll tax because Indiana ID cards are free. He also pointed out that “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 burdens of voting.” What’s more, he wrote, voters who show up to the polls without an ID may cast a provisional ballot, then visit the county clerk’s office within ten days to produce an ID or sign an affidavit to have their vote counted.

It is rare that we agree with Justice Stevens, but in this case we find his argument convincing — though we like Justice Antonin Scalia’s concurring opinion even better. Justice Scalia, joined by Justices Thomas and Alito, stated plainly that “the burden at issue is minimal and justified.” Justice Stevens, joined by Chief Justice John Roberts and Justice Anthony Kennedy, agreed that the law’s opponents had not produced anyone whom the law would unduly burden, but argued that such people might, in theory, exist. We prefer Scalia’s approach because it closes the door on further challenges to the law in this vein.

The law’s opponents could not produce evidence of a special burden for a simple reason: No one who is legally allowed to vote in Indiana should have major problems complying. Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer dissented from that view, but we find their examples — such as the theoretical voter who, sans ID, can make it to the voting booth on Election Day but not to the county clerk’s office a few days later — far-fetched. The dissenters pointed out that 32 of the 34 ID-less voters who cast provisional ballots in Indianapolis’s 2006 mayoral election didn’t make the second trip to sign the affidavit. But just because they didn’t, doesn’t mean they couldn’t.

It should be noted that Barack Obama was prominent among the liberals asking the Supreme Court to overturn a democratically enacted law in the name of protecting democracy. He has been a fierce critic of voter-ID laws, and he wasted no time condemning Monday’s decision, arguing that Indiana’s law “places an unfair burden on Indiana residents who are poor, elderly, disabled, or members of minority groups.” All this over something as simple as showing a driver’s license to prevent voter fraud. Talk about the soft bigotry of low expectations.


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