Brennan Center for Justice

While the country is closely following the presidential
primary contests, another contest is being fought that will determine the way
many Americans -- and even which Americans -- will vote in November and in years to
come. The contest is not about
candidates but about the voting process itself. 
And it won't be decided by voters but by the U.S. Supreme Court. 

The argument in Crawford
v. Marion County Election Board is about the constitutionality of Indiana's new voter ID
law, the most restrictive documentation law in the country. If it is upheld, then Indiana voters will be required to show a government-issued
photo ID with an expiration date or their votes won't count. That could shut out many Hoosiers; according
to a recent University
of Washington study, thirteen percent of registered voters in Indiana don't have such IDs.

But that's not all. The decision in this case will reverberate far beyond Indiana. For several years now, more than half of the states have seen heated
legislative battles over onerous voter ID bills. A decision to uphold Indiana's law would bolster efforts across
the country to enact new ID restrictions. 

If that happens, then millions of eligible voters could be
blocked this November. Studies
show that roughly twenty one million Americans don't have government-issued
photo IDs. The voters blocked by photo
ID requirements are not evenly spread. Senior
citizens, young people, people with low incomes, and people of color are far less
likely than other citizens to have the kinds of IDs required by Indiana's law. For some groups, the effects would be
devastating. A 2005
study found that 78% of African-American men aged 18-24 in Wisconsin don't have
driver's licenses.

No matter what the breakdown, the Supreme Court's decision will affect whose votes will and
whose votes won't count. That could make
a big difference in November's elections. Restrictive ID requirements like Indiana's could, for
example, quell the upsurge in youth participation that has helped shaped the
primaries so far. 

But even that's not all. What's at stake in this case is much more than voter ID. What's at stake is the future and strength of
the right to vote. Here's why.

To decide this case, the Supreme Court will have to clarify
the legal standards for determining when it is OK and when it is not OK for a
state to place direct obstacles between eligible citizens and the ballot
box. In doing so, it will likely set the
constitutional ground rules for deciding all cases challenging election rules
that suppress votes -- including sweeping purges of the voter rolls,
restrictions on voter registration, and provisional ballot counting rules. 

The broad contours of the legal framework are clear: because
the right to vote is at stake, states are required to justify any burden it
places on voters. The greater the
burden, the more compelling a justification it must have, and the more closely
the law must be narrowly tailored to address the problem.

What specifically does a state have to show to justify hurdles
that thwart eligible voters? If Indiana has its way, not
much.

Indiana
claims that its law will help prevent voter fraud. But photo ID does not stop vote-buying,
ballot tampering, absentee ballot fraud, or even voting by non-citizens. All it prevents is something that almost
never happens-voting in the name of another registered voter at the polls. Indiana
concedes that there has never been a
proven incident of impersonation fraud in the state. In fact, the law's supporters did not cite a
single proven incident of this kind of fraud anywhere in the country. Impersonation fraud is extraordinarily
rare because it is irrational; you risk a lot ($10,000 and 5 years in
prison) and stand to gain only one marginal vote.

Even though it has no evidence of the supposed problem its
law targets, Indiana
claims that it needs none. Worse, it
says that its law should be upheld because it allays fears of impersonation fraud, even if those fears are irrational.

If the Court accepts those arguments, then just about any
vote suppression measure would be protected so long as officials raised the
fear of fraud. That would seriously
water down the right to vote. 

And the real-world ramifications would be huge. The fear of voter fraud could be -- and recently has been -- used to
justify a broad range of efforts to manipulate the rules of elections and harm
voters. 

The right to vote should be worth more than that.  However the Court rules, it should insist
that an eligible citizen's ability to vote cannot be thwarted without a good
reason, based in fact.  The Justices
should also make sure that any burden placed on voters is no greater than
absolutely necessary so that we can live in a fully functioning democracy where
all eligible voters are actually allowed to vote.