Tuesday, April 29, 2008


NY TIMES EDITORIAL The court has long recognized that the right to vote is so fundamental that a state cannot restrict it unless it can show that the harm it is seeking to prevent outweighs the harm it imposes on voters. The Indiana law does not meet this test. The harm it imposes on voters, some of whom will no doubt be discouraged from casting ballots, is considerable. The state's interest in the law, on the other hand, is minimal. It was supposedly passed to prevent people from impersonating others at the polls, but there is no evidence that this has ever happened in Indiana. It seems far more likely that the goal of the law's Republican sponsors was to disenfranchise groups that lean Democratic.

Unfortunately, only three justices voted to hold the law unconstitutional. The other six fell into two groups. Three - Justices John Paul Stevens and Anthony Kennedy and Chief Justice John Roberts - signed a lead opinion that set a disturbingly low bar for what sort of interference with voting the Constitution permits. A second opinion, signed by Justices Antonin Scalia, Clarence Thomas and Samuel Alito, was worse. It argued for upholding all but the most severe and unjustified burdens on voting. Richard Hasen, a Loyola Law School professor, notes that if the court had taken this opinion's approach in 1966, it is not clear it would have overturned the poll tax.

COMMON CAUSE - In Indiana, if a voter does not already have a current driver's license or passport with the same name on it as the voter filled out on his or her voter registration form (even if the voter has since married and changed his or her name), that voter will encounter a serious challenge to the right to vote. In order to get the so-called free ID the state is offering, well in advance of the election, a voter would have had to go to a Department of Motor Vehicles during working hours and present a primary document, a secondary document, and a proof of residency, or two primary documents and one proof of residency document. The only items that count as primary documents essentially are an original, stamped birth certificate or a passport. Many people do not have their original birth certificate at home. And only about a quarter of Americans have passports. So the voter without their birth certificate handy must go out and buy one - in Indiana that costs between $12 and $20 and much more if the voter was not born in Indiana. And in the ultimate Catch-22, the process for getting a birth certificate may require the voter to present identification. Moreover, the process for getting the birth certificate, particularly for a citizen who was not born in Indiana, can take months.

What's more, Indiana's law allows for no recourse. If the voter comes to the polls without the right kind of ID, at least right as far as that particular poll worker is concerned, he cannot vote by regular ballot that day. He must instead return to election offices with the necessary ID within 10 days – something many voters, even if they have the requisite ID, may not be able to do. The only other possibility for poor voters without ID who come to vote is to return within 10 days to fill out an affidavit swearing under law as to their indigence which is totally undefined by the law.

Indiana's voter identification law has been championed politically and in the courts as necessary to prevent fraud. Voluminous research has found that the type of election fraud that would be prevented by a voter identification requirement - in person, impersonation of another person at the polls - is extremely rare. In fact, in Indiana's court papers defending the law, the State could not provide one example in Indiana's entire history in which this type of fraud had taken place. Indeed, not one case of election fraud brought by the Justice Department over the last several years was of the type that would have been addressed by voter identification.


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