The Constitutionality of Requiring Photo Identification for Voting: An Analysis of Crawford v. Marion County Election Board

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In a splintered decision issued in April 2008, the Supreme Court upheld an Indiana statute
requiring photo identification for voting, determining that lower courts had correctly decided that
the evidence in the record was insufficient to support a facial attack on the constitutionality of the
law. Written by Justice Stevens, the lead opinion in Crawford v. Marion County Election Board
finds that the law imposes only “a limited burden on voters’ rights,” which is justified by state
interests.

In 2005, Indiana enacted a statute requiring citizens voting in person on primary or general
election day, or casting a ballot in person at the office of the circuit court clerk prior to election
day, to present a photo identification card issued by the government. Often referred to as the
“Voter ID Law,” it does not apply to absentee ballots submitted by mail and excepts persons who ¹
reside and vote in state-licensed facilities such as nursing homes. It further provides that a voter
who is indigent or has a religious objection to being photographed may cast a provisional ballot
that will only be counted if the voter executes an appropriate affidavit before the circuit court ²
clerk within 10 days after the election. Under Indiana law, photo identification is not required for ³
registering to vote, and for qualified voters, the state offers free photo identification.
Shortly after enactment of the Voter ID Law, the Indiana Democratic Party and the Marion
County Democratic Central Committee (hereafter referred to as the “Democratic Party”) filed suit
in federal district court against state officials responsible for enforcement of the law, seeking a ⁴
judgment declaring the statute invalid on its face and enjoining its enforcement. Seeking the
same relief, a second suit was filed on behalf of two elected officials and several nonprofit
organizations representing groups of elderly, disabled, poor, and minority voters, and the cases ⁵
were consolidated. In defense of the law, the State of Indiana intervened.
In sum, the plaintiffs alleged that the Voter ID Law substantially burdens the right to vote in
violation of the Fourteenth Amendment; that it is neither a necessary nor appropriate means of
avoiding election fraud; and that it will arbitrarily disenfranchise qualified voters without the
requisite identification and place an unjustified burden on those who cannot obtain such
identification. In granting defendant’s motion for summary judgment, the federal district court
found that the plaintiffs had “not introduced evidence of a single, individual Indiana resident who
will be unable to vote as a result of [the Voter ID Law] or who will have his or her right to vote ⁶
unduly burdened by its requirements.” Rejecting an expert’s report that up to 989,000 registered
Indiana voters did not possess either a driver’s license or other acceptable photo identification “as
utterly incredible and unreliable,” the court estimated that as of 2005 (when the statute was
enacted), approximately 43,000 Indiana residents did not possess driver’s licenses or state-issued ⁷
identification. The Democratic Party appealed.
In affirming the lower court ruling, the U.S. Court of Appeals for the 7^th Circuit held that the
Democratic Party had standing to challenge the constitutionality of the Voter ID Law on its face.
Next, pointing out that no plaintiff was claiming that the law would deter him or her from voting,
the court inferred that “the motivation for the suit is simply that the law may require the

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Democratic Party to work harder to get every last one of their supporters to the polls.”⁸ Finally,
rejecting the argument that the law should be evaluated under the same strict standard applicable
to a poll tax, the court held that the burden placed on voters was balanced by the benefit of
reducing the risk of voter fraud. The Democratic Party appealed.
Voting 6 to 3, in April 2008, the Supreme Court affirmed the decision of the 7^th Circuit, persuaded
that both lower courts had correctly determined that the evidence in the record was insufficient to
support a facial attack on the constitutionality of Indiana’s Voter ID Law. Justice Stevens wrote ⁹
the “lead opinion,” which was joined by Chief Justice Roberts and Justice Kennedy; Justice
Scalia wrote a concurrence, joined by Justices Thomas and Alito; Justice Souter filed a dissent,
joined by Justice Ginsburg; and Justice Breyer filed a dissent.
The lead opinion in Crawford begins with an analysis of the Court’s 1966 decision in Harper v. ¹⁰
Virginia Board of Elections, which invalidated a Virginia statute conditioning the right to vote
on the payment of a $1.50 poll tax. The Harper Court concluded that whenever a state makes the
affluence of a voter or the payment of a fee an electoral standard, it violates the Equal Protection ¹¹
Clause of the Fourteenth Amendment. The opinion further notes that under Harper, even ¹²
rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications.
Clarifying that standard, however, the lead opinion finds that in the Court’s 1983 decision, ¹³
Anderson v. Celebrezze, the Court confirmed the general rule that “‘evenhanded restrictions that
protect the integrity and reliability of the electoral process itself’ are not invidious” and indeed, ¹⁴
satisfy the Harper standard. As the opinion explains, “[r]ather than applying any ‘litmus test’
that would neatly separate valid from invalid restrictions, we concluded that a court must identify
and evaluate the interests put forward by the State as justifications for the burden imposed by its ¹⁵
rule, and then make the ‘hard judgment’ that our adversary system demands.” Application of
this balancing test, the opinion further points out, was made in subsequent election decisions by ¹⁶
the Court.

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In making the judgment in Crawford as to whether the Indiana Voter ID Law is justified by a
legitimate state interest, the opinion analyzes each of the three interests identified by the State of
Indiana—deterring and detecting voter fraud; preventing voter fraud; and safeguarding voter
confidence—and finds that they are “unquestionably relevant” to the state interest of protecting ¹⁷
the integrity of the electoral process. Furthermore, it notes that even the petitioners in this case,
while charging the statute was motivated by partisan goals, did not question the legitimacy of the
interests identified by the State of Indiana. On the issue of voter fraud, it determines that the only
type of voter fraud that the Voter ID Law seeks to address is in-person voter impersonation at the ¹⁸
polls, but that the record contains no evidence of such fraud ever occurring within Indiana.
On the other side of the coin, the Crawford lead opinion also discusses the burdens that the Voter
ID Law imposes on voters, burdens that are not imposed by non-photo identification
requirements. For example, it points out the possible inconveniences of a voter’s photo
identification being lost or stolen or no longer representing the likeness of a voter, thereby
creating an impediment to voting. However, it concludes that “burdens of that sort arising from
life’s vagaries ... are neither so serious nor so frequent as to raise any question about the
constitutionality of [the Voter ID Law]; the availability of the right to cast a provisional ballot ¹⁹
provides an adequate remedy for problems of that character.”
The relevant burdens imposed by the law, the opinion finds, are those that are placed on people
who are eligible to vote, but do not possess photo identification that complies with the Voter ID
Law. If the State of Indiana required voters to pay a tax or a fee to obtain the requisite photo
identification, the fact that most voters already possess a valid driver’s license or other acceptable
identification would not save the statute under the Court’s holding in Harper, the lead opinion
notes. However, in Indiana, free photo identification cards are available through the Bureau of
Motor Vehicles (BMV). In view of that fact, the opinion concludes that “for most voters ... the
inconvenience of making a trip to the BMV, gathering the required documents, and posing for a
photograph surely does not qualify as a substantial burden on the right to vote or even represent a ²⁰
significant increase over the usual burdens of voting.”
For a “limited number of persons,” based on evidence in the record and facts of which the Court
takes judicial notice, the Voter ID Law may still impose a “somewhat heavier burden.” However,
the lead opinion determines that the severity of that burden is mitigated by the fact that eligible
voters may cast provisional ballots that will ultimately be counted. While casting a provisional
ballot requires traveling to the circuit court clerk’s office within 10 days to execute an affidavit, it
is “unlikely” that the requirement would create a constitutional problem “unless it is wholly
unjustified.” Moreover, even if the burden cannot be justified to a few voters, it would be
insufficient to establish the relief sought by the petitioners in this case: invalidation of the Voter ²¹
ID Law in all its applications. In view of such relief sought by the petitioners, the opinion finds
that they bear a “heavy burden of persuasion,” asking the Court “in effect, to perform a unique

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balancing analysis that looks specifically at a small number of voters who may experience a
special burden” and weigh that against the State of Indiana’s interests in protecting election ²²
integrity.
On the basis of the record before the Court, the lead opinion determines that it “cannot conclude ²³
that the Voter ID Law imposes ‘excessively burdensome requirements’ on any class of voters”
and that it “‘imposes only a limited burden on voters’ rights,’” which are justified by the interests ²⁴
advanced by the State of Indiana. It also finds that if a “nondiscriminatory law is supported by
valid neutral justifications,” those justifications should not be ignored merely “because partisan ²⁵
interests may have provided one motivation” for its enactment. Finally, the opinion cautions that
even if the statute constituted an unjustified burden on some voters, the petitioners failed to ²⁶
demonstrate that the proper remedy was to invalidate the entire statute.
The concurrence, written by Justice Scalia, finds that the Indiana Voter ID Law is “a generally
applicable, nondiscriminatory voting regulation” and disputes the notion that “individual impacts ²⁷
are relevant to determining the severity of the burden it imposes.” Indeed, according to the
concurring opinion, it is the job of state legislatures to assess the costs and benefits of election
regulations and “their judgment must prevail unless it imposes a severe and unjustified overall ²⁸
burden upon the right to vote, or is intended to disadvantage a particular class.” Judicial review
of such election regulations must be applied in such an objective and uniform manner that
legislatures know beforehand whether the resulting burden is too severe. Specifically criticizing
the lead opinion, the concurrence characterizes it as a “record-based resolution” that “neither
rejects nor embraces the rule of our precedents, provides no certainty, and will embolden litigants ²⁹
who surmise that our precedents have been abandoned.” In sum, the concurrence labels it an
“indulgence” that the State of Indiana accommodates certain voters by permitting the casting of
provisional ballots, finding it not to be a constitutional requirement. Instead, it concludes that it is
constitutionally sufficient that the Voter ID Law does not significantly increase typical burdens of
voting and that the state’s interests are enough to sustain that minimal burden. According to the ³⁰
concurrence, “[t]hat should end the matter.”

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The Souter dissent warns that the Voter ID Law poses a threat of “nontrivial burdens” on the
voting rights of tens of thousands of Indiana’s citizenry and accordingly, is likely to result in a ³¹
substantial percentage of those individuals being deterred from voting. It concludes that the law
is unconstitutional under the standard the Court established in its 1992 decision, Burdick v.
Takushi, finding that a state may not burden the right to vote “merely by invoking abstract
interests” even if legitimate or compelling, but must make a “particular, factual showing that ³²
threats to its interests outweigh the particular impediments it has imposed.” In view of “no ³³
evidence of in-person voter impersonation fraud in the State,” the dissenting opinion determines
that the State of Indiana failed to justify the practical limitations on voting rights created by the
law and finds that it creates an “unreasonable and irrelevant burden on voters who are poor and ³⁴
old.”
The Breyer dissent compares the Voter ID Law with similar laws in Georgia and Florida that
require photo identification for voting, but accept a broader range of identification. For example,
the State of Florida accepts student ID cards, employee badges and cards from neighborhood
associations, and will accept a provisional ballot on the condition that the voter’s signature ³⁵
matches the signature on file. The State of Indiana, according to the dissent written by Justice
Breyer, did not sufficiently justify the “significantly harsher, unjustified burden” created by its ³⁶
law.
In the wake of the Supreme Court’s ruling in Crawford, some commentators have speculated that ³⁷
more states are likely to enact laws requiring photo identification for voting. However, even
though the Court’s ruling strikes down a facial challenge to Indiana’s Voter ID Law, it appears to
leave open the possibility of “as applied” challenges to such laws, if greater evidence of the ³⁸
burdens imposed on voters’ rights can be provided. Furthermore, while three members of the
Court—Justices Scalia, Thomas, and Alito—hold the position that a “record-based” evaluation of
the impact of such laws on individuals is inappropriate, that view does not appear to be shared by
the remainder of the Court.

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