The Indiana Voter ID Law

Yesterday, the Seventh Circuit issued an opinion in Crawford v. Marion County Elections Board, a case involving a challenge to the Indiana Voter ID law. In a 2-1 decision a 7th Circuit panel upheld the law. To be certain, an appeal to the Supreme Court is likely and depending on the outcome of other challenges to other voter ID laws, the Court is likely to hear cases sometime in the near future. Writing for the majority, Judge Richard Posner noted on page 5 of the opinion that many of the plaintiffs in this case would lack standing to sue, either because the law would not apply to them or that they had no injury. However, since the Democratic Party did have standing, Posner continues to the merits.

The plaintiffs argued that any burden on the right to vote must pass the strict scrutiny test, i.e. that the law meets a compelling state interest and narrowly tailored to meet that end. The Supreme Court rejected such an argument in Burdick v. Takushi, 504 U.S. 428, saying that such a test would "tie the hands of States seeking to assure that elections are operated equitably and efficiently." Burdick at 434. So a strict scrutiny test is not the standard to use, but a lesser standard. But what if strict scrutiny were the test?

No one can doubt that the effective and efficient administration of elections is a compelling state interest. In order for a government to be legitimate, the voters must have faith that the elections are an accurate representation of their desires and choices. If votes and vote tallies are subject to doubt as to their accuracy the very legitimacy of the government is called into question as well as all subsequent decisions and policies of that government. Given the fundamental nature of elections to the smooth operation of our democracy, ensuring that elections are fair and equitably run is not only a compelling state interest, it may very well be the most compelling state interest.

Note that I am not talking about voter fraud. Voter fraud is a problem, but not as widespread as some would have you believe. But when voter fraud is limited to a handful of cases in a few states or congressional districts, it is hard to consider voter fraud to be a demonstrable impediment, by itself, to equitable elections. That is not to say that voter fraud should not be taken seriously, but only as an element in the legitimacy of elections.

Rather, I believe that legitimate and equitable elections are the compelling interest. American politics has its losers in every election. But those who lose must have faith in the system that produced that loss. They must have faith that despite being on the losing side, the election was a legitimate expression of the electorate as a whole and that the government they have is a reflection of at least a legitimate plurality of the voters. Wihtout faith in the governemnt, even one in which a person finds themselves a member of the loyal opposition, we cannot continue with our form of government for very long.

But the second part of the test is whether the law is tailored to meet the compelling interest of fair and legitiate elections. A voter ID law serves as a support for the faith in the legitimate electoral process. If a voter, even one who has lost, can take comfort in the fact that all votes cast in that election were cast by legitimate and appropriate voters, that person can take solace in that fact that they lost and begin the process anew to win in the next election. By ensuring that each vote is cast by a person who has basic identification credentials, the legitimacy of elections is assured.

This challenge was a facial challenge to the law, asking whether or not the law, in and of itself, was unconstitutional. Clearly it is not. The law makes no distinction between party or race or income or residency, save for nursing home residents. The only classification in the law deals with those who live in said nursing homes or vote by absentee ballot--classifications used for administrative reality and not a protected or suspect class at all. The treats every on equally on its face--if you want to vote at a polling place, you must produce ID. There are procedures in place for people to cast a provisional ballot, ensuring that there are options in such cases.

Might the law have an impact on one party or another? Certainly, as was pointed out in the dissent by Judge Evans. But that is a different case, an "as applied" case that must come in the future. If the law, passed by a Republican majority, means that the Democrats must work a little harder or spend more money to get their voters to the polls, that is simply the nature of the political process.

Which brings us to the final question. Will future as applied challenges end up in the political question bin? Facially, voter ID laws like Indiana's will likely be upheld under the less scrutiny standard from Burdick. But as applied challenges, so long as there is no insidious effort otherwise, may simply end up being a squabble between competing political parties, a fight the courts would be well-served to avoid.