New York Law School

Barrier to the Ballot

The right to vote is a fundamental right that goes to the core of an individual’s liberty. A right so sacred that it is protected by both the 15th Amendment and the Voting Rights Act of 1954. Earlier this year, the Supreme Court had occasion to rule on a new voting restriction in Crawford v. Marion County Election Board, 128 S. Ct. 1610, 170 L. Ed. 2d 574 (2008). In 2005, the Indiana legislature passed Indiana’s Senate Enrolled Act No. 483, (“the Act”) which requires voters to present identification prior to casting a ballot. Persons living and voting in a state-licensed facility, such as a nursing home, are exempt from the statute’s identification requirement. The Act also provides an exemption for those who have a religious objection to being photographed and those who are indigent. These persons are allowed to submit provisional ballots, which are counted if the voter executes an appropriate affidavit before the circuit court clerk within ten days following the election. Those who possess valid identification but are unable to present it when voting may also file a provisional ballot. The provisional ballot is only counted if the voter presents identification to the circuit court clerk within ten days of the election.

Various organizations, including local chapters of the Democratic Party and the ACLU, challenged the Act, arguing that it violated the First and Fourteenth Amendments by imposing arbitrary requirements that many are unable to meet, thereby disenfranchising voters. Specifically, appellants argued that the various costs associated with meeting the identification requirements are essentially a poll tax. Indigent voters are forced to incur the added expense of obtaining their birth certificate, and those unable to obtain the required documentation must incur the costs of traveling to the circuit court clerk’s office to file an affidavit attesting to that. Also, appellants argued that elderly voters who were born in another state often have difficulty making the trip to obtain their birth certificates.

The Court upheld the statute in a 6-3 split and without a majority opinion, concluding that the Act does not impose excessively burdensome requirements on any class of voters. Justice Stevens, writing for the plurality, relied on the balancing approach put forward in Anderson v. Celebrezze, 460 U.S. 780 (1983), and evaluated the State’s interest in relation to the burden imposed on the voters. 128 S. Ct. 1610, 1617, 170 L. Ed. 2d 574, 586 (2008). Indiana put forth three justifications for encroaching upon its constituents’ right to vote: deterrence and detection of voter fraud; prevention of voter fraud in response to unreliable voter registration rolls that are a product of the state’s dereliction of its duties; and, lastly, safeguarding voter confidence.

Appellants refuted the State’s interests in detecting and deterring voter fraud as unfounded. Although the Act is primarily aimed at curbing in-person voting fraud, the State did not provide any evidence of voting fraud, at any point in the State’s history. Moreover, appellants argued that penalizing fraud as a felony is a sufficient deterrent. In showing that the Act poses a severe burden on voters, appellants presented depositions and affidavits from voters who attested that they had difficulty meeting the statute’s requirements.

Although the Court noted that a number of voters may be burdened by the statute’s requirements, it marginalized the problem by referring to them as a narrow class of voters. The Court further defended this admitted “special burden” reasoning that the severity of that burden is mitigated by the fact that eligible voters without identification may cast provisional ballots that are ultimately counted after they file an affidavit with the circuit court clerk’s office. Id. at. 1623.

The Court further reasoned that states have had to reexamine their election procedures after the enactment of both the National Voter Registration Act of 1993, which requires state motor vehicle driver’s license applications to serve as voter registration applications, and the Help America Vote Act of 2002, which requires states to verify voter information contained in voter registration applications. Although the court noted that the acts may have urged Indiana to enact SEA 483, neither required it to. Moreover, the court concedes that the most effective method of preventing fraud is debatable. Id. at 1620.

The Court rendered this decision despite noting that Indiana contributed to the very fraud they are attempting to curtail by improperly documenting and updating voter registrations lists. Justice Souter, writing for the dissent, refuted the State’s argument that the identification requirement is not prohibitive because it is free, noting that there are both travel and document retrieval costs associated with obtaining the identification. The dissent also highlighted the other burdens imposed on voters, pointing out that Indiana only accepts limited forms of federal- or state-issued identification, Id. at. 1634, and that the Bureau of Motor Vehicles has fewer license branches in each county than voting precincts. Id. at 1629. Furthermore, the dissent noted that despite the lack of any evidence of voting fraud, Indiana imposed one of the most restrictive photo identification requirements in the country without allowing for a transition period. Id. at 1642. Justice Breyer, in a separate dissenting opinion, found the Act unduly burdensome, noting that other states have much less prohibitive identification requirements, for example, Florida and Georgia, which permit a range of documents to satisfy their identification requirements.

Although the requirement for voter identification appears reasonable on its face, there are a number of implications. There are looming questions concerning the motives behind this requirement. The deeply divided partisan split on this issue has caused many to question whether it is politically motivated? Or, is it racially motivated? It is a safe assumption that those without valid identification tend to be on the lower end of the economic spectrum, which tends to be comprised of minorities. The timing of this decision is also particularly questionable considering the upcoming election and the State’s decree for immediate implementation.

The Court’s decision here is a drastic diversion from Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079 (1966), where it banned the use of a poll tax. In Harper, the Court held that a state violates the Equal Protection Clause of the 14th Amendment when it makes the affluence of the voter or payment of any fee an electoral standard. Id. at 666. The Court’s decision in this case eradicates the very spirit of Harper. Here, Indiana places an overly restrictive, arbitrary requirement on its constituents to curb a non-existent problem. The State and the Court contend that the act is not, and does not resemble, a poll tax, because Indiana provides free identification. Although the identification is free, the numerous costs associated with obtaining the identification act as barriers to casting a ballot. The fact that the fees are not labeled a poll tax does not change how they operate. In its operation and effect the voting requirement disenfranchises voters.

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