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Judges dissect challenge to voter ID law

High court skeptical that rule is burden

Email|Print| Text size + By Robert Barnes
Washington Post / January 10, 2008

WASHINGTON - The Supreme Court appeared unmoved yesterday by arguments that an Indiana law requiring voters to present photo identification imposes an unconstitutional burden. Some justices, however, appeared to search for a middle ground on the divisive and partisan political issue.

Voting rights specialists see the legal battle over Indiana's toughest-in-the-nation voter identification law as the most starkly partisan case to reach the court since Bush v. Gore decided the presidential election in 2000.

And the court's questioning during an hourlong oral argument broke quickly along its own ideological divide. But the justice most often in recent years to play the decisive role - Anthony Kennedy - made it clear that he did not share the challengers' view of the burden that producing a photo ID imposes.

"You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?" Kennedy asked Washington lawyer Paul Smith, who argued the case on behalf of the Indiana Democratic Party, American Civil Liberties Union, and other Hoosier community groups and individuals.

But Kennedy did join liberal justices in expressing concern about what happens to those registered voters who do not have photo identification. Indiana's law requires them to cast provisional ballots, and then travel to the county seat within 10 days with the proper identification or other documentation such as a certified birth certificate for their votes to be counted.

Kennedy wondered if there were ways in which "the central purpose and the central function of this statute can be preserved but there can be some reasonable alternatives for people who have difficulty?"

The issue goes far beyond Indiana, as states with Republican-majority legislatures are pushing similar laws, saying they are a necessary and common-sense way supported by the public to combat voter fraud. Democrats say the laws do not address the most prevalent forms of fraud such as absentee ballots, but discourage or even disenfranchise those least likely to have a driver's license or passport - the poor, elderly, disabled, or urban dwellers who happen to be most likely to vote Democratic.

The 2-to-1 decision by a panel of the US Court of Appeals for the Seventh Circuit that upheld Indiana's law frankly discussed the political realities - the dissenting Democratic-appointed judge called it a "not-too-thinly veiled attempt" to discourage voters who skew Democratic. But yesterday there were only limited references from the justices to the political advantages at stake in this election year.

Justice John Paul Stevens asked US Solicitor General Paul Clement, who filed a brief on behalf of the Bush administration supporting Indiana, whether it was "fair to infer that this law does have an adverse impact on the Democrats that is different from its impact on the Republicans."

Clement did not answer directly, but told Stevens that if "this was a cleverly designed mechanism by the Republican Party to disadvantage the Democratic Party, at least in 2006 it looks like it went pretty far awry." As in states with or without voter identification laws, Indiana Democrats did better in those elections than the previous one.

Chief Justice John G. Roberts Jr. and Justice Antonin Scalia led the tough questioning of Smith. Scalia suggested that such a broad attack of the law as unconstitutional was unwarranted.

Roberts pushed hard on a finding of the lower court that the petitioners had not produced a "single person" who had been denied the chance to vote because of the law. Smith responded that there were examples of voters whose provisional ballots were not counted because they had been unable to meet the state's standards.

The two even got into an argument about Indiana geography. When Smith questioned the law's requirement that those without photo ID make their case at the county courthouse, Roberts, who was raised in the state, responded, "County seats aren't very far for people in Indiana."

Smith said it would be a 17-mile bus ride for a poor person in the city of Gary.

Indiana Solicitor General Thomas Fisher told the justices that, as the lower court had found, only "an infinitesimal portion of the electorate could even be, conceivably be, burdened by" the law's requirement.

But Justice Ruth Bader Ginsburg said the impact would be unquestionably on the poor. "That burden is on every indigent person who doesn't have a photo ID, so we are not speculating about numbers," she said.

If the objective of government should be to make it easier for "America to vote, all Americans," she and Justice Stephen Breyer wondered why states did not simply issue photo identification when registering voters.

Justice Samuel A. Alito Jr. seemed inclined to uphold Indiana's law, but he summed up the quandary for the court.

"If you concede that some kind of voter ID requirement is appropriate, the problem that I have is where you draw the line on a record like this, where there's nothing to quantify in any way the extent of the problem or the extent of the burden," he said.

A decision in the consolidated cases, Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, should be decided by the court's adjournment at the end of June, in time for the 2008 general elections.

The issue goes far beyond Indiana, as states with Republican-majority legislatures are pushing similar laws, saying they combat fraud.

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