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    Crawford v. Marion County Election Board

    Determining which American citizens are able to exercise their right to vote and which Americans are not, the Indiana voter ID case is the most important voting rights case since Bush v. Gore.

    Published: April 28, 2008

    The Indiana voter ID case is the most important voting rights case since Bush v. Gore.  Due to be heard by the U.S. Supreme Court on January 9, 2008, Crawford v. Marion County Election Board will determine which American citizens are able to exercise their right to vote and which Americans are not.  The Indiana law is the most restrictive ID law in America and will exclude many eligible voters from participating in our democratic process.

    The Brennan Center filed an amicus brief with the U.S. Court of Appeals for the Seventh Circuit challenging the constitutionality of an Indiana law requiring citizens to present photo ID as a condition of voting. In its amicus brief, the Brennan Center argued that impersonation fraud is an extremely unlikely and unsubstantiated occurrence that can be prevented without requiring a photo ID, and that the Indiana law fails to address more common forms of voter fraud. The Center’s brief marshalled the best evidence on individual voter fraud and catalogued the practices in other states for preventing voter fraud without resorting to photo ID. On January 4, 2007, the United States Court of Appeals for the Seventh Circuit, in an opinion authored by Judge Posner, upheld the lower court decision and found that the state law did not unduly burden the right to vote. Plaintiffs were denied a rehearing en banc on April 5, 2007.

    On July 2, 2007, Plaintiffs filed a Petition for a Writ of Certiorari, which was granted on September 25, 2007. The Brennan Center and others filed an amicus brief in support of Petitioners on November 13, 2007. Oral argument was scheduled for January 9, 2008. The Supreme Court issued a decision on April 28, 2008.

    Selected documents can be found below. All legal documents related to the case can be found here. An analysis of the claims of fraud by respondents and their supporting amici can be found here. For more information allegations of voter fraud, please visit the Brennan Center’s webpage on the issue. Fast facts on the impact of voter ID can be found here.

    Descriptions of amicus briefs filed on November 13, 2007 are available here.

    Selected press and commentary on the case is available here.

    U.S. Supreme Court Decision

    U.S. Supreme Court Briefs In Support Of Petitioners

    Briefs Demonstrating the Absence of In-Person Voter Fraud

    • Brief of Brennan Center for Justice; Demos: A Network for Ideas and Action; Lorraine C. Minnite; Project Vote; and People for the American Way Foundation. This brief examines the national evidence and studies of in-person voter fraud, demonstrates the extremely rare incidence of such fraud, debunks supposed examples of such fraud, and argues that Indiana’s law is not justified by the facts or the law.  The law firm of Paul, Weiss, Rifkind, Wharton & Garrison is co-counsel on this brief.
    • Brief of Secretaries of State. This brief, joined by Secretaries of State Jennifer Brunner of Ohio, Robin Carnahan of Missouri, and Deborah Markowitz of Vermont, and former Secretaries Cathy Cox of Georgia and John Willis of Maryland, draws on the Secretaries’ experience in running elections and argues that in-person voter fraud is extremely rare (and has not occured in their jurisdictions), that voter ID is not needed to ensure fraud-free elections, and that voter ID requirements both disenfranchise voters and burden election officials. The law firm of Davis, Polk & Wardwell is counsel on this brief.
    • Brief of ACORN. This brief discusses the partisan attacks on voter registration efforts, including those run by ACORN, and demonstrates that those attacks are baseless and have been used to deceive the public and state governments into thinking that voter impersonation fraud is a true problem. The law firm of Ropes & Gray is co-counsel on this brief.

    Briefs Demonstrating the Disenfranchisement Impact of Voter ID Laws

    • Brief of Political and Social Scientists. This brief, filed by Professors Michael Alvarez, Lonna Rae Atkeson, Delia Bailey, Thad Hall, and Andrew Martin, puts forward all the extant evidence of the impact of photo ID requirements for voting and concludes that racial minorities and older people are less likely to have such photo ID, photo ID requirements depress voter turnout, and voter ID laws are subject to arbitrary and discriminatory enforcement by poll workers. Professor Samuel Bagenstos is counsel on the brief, with the law firm of Kaye Scholer as co-counsel.
    • Brief of Historians and Social Scientists. This brief, whose signatories include 29 historians and social scientists (a veritable “who’s who” in the scholarship of race and politics), presents an overview of post-Reconstruction election laws, primarily in the South, pointing to the disjuncture between the often high-minded arguments presented by their proponents and the laws’ actual highly partisan or racial effects.  It then draws striking parallels between some of those laws and the supporting arguments and probable effects of the 2005 Indiana photo ID law, the most stringent current voter ID law in the nation.  The Campaign Legal Center and Law Professor Charles Ogletree are counsel on this brief.
    • Brief of the League of Women Voters of Indiana. This brief describes the struggles of individual Hoosiers who want to vote but are unable to do so because of the Indiana voter ID Law.  Among others, it includes the stories of 92 year-old Indiana businesswoman Mary Eble, daughter of a suffragist, who cannot cast her ballot in person because she has no Indiana driver’s license or ID card and Karen Webster, a newly married working mom, who was required to cast a provisional ballot that was ultimately not counted even though she had ID in her new name and copy of her marriage certificate. The law firms of Austin & Jones, Cleary Gottlieb Steen & Hamilton, and Norris, Choplin & Schroeder are counsel on the brief.
    • Brief for the Lawyers’ Committee for Civil Rights Under Law, Service Employees International Union, American Federation of State, County and Municipal Employees, Common Cause, Jewish Council for Public Affairs, National Council of Jewish Women, and American Jewish Committee. This brief, on behalf of labor, civic, religious, and civil rights groups, describes the disenfranchising impact of voter ID laws, especially on people of color, low-income citizens, senior citizens, and students, including the difficulties many individuals face in obtaining appropriate ID. The law firm of O’Melveny & Myers is co-counsel on the brief.
    • Brief of the AARP.  This brief discusses the negative impact strict photo ID laws have on older Americans and those with disabilities. The law firm of Hogan & Hartson is co-counsel on the brief.
    • Brief of the NAACP Legal Defense and Educational Fund, Inc. This brief discusses the severe impact of voter ID laws on African American communities, in particular in areas of concentrated poverty.
    • Brief of the Asian American Legal Defense and Educational Fund and 25 Other Groups. This brief, filed on behalf of AALDEF and twenty-five Asian American groups that have monitored elections across the country over the last decade, contends that voter ID requirements have discriminatory impacts on Asian American voters. The brief cites numerous examples from 2004, when the groups monitored 200 poll sites and conducted a multilingual exit poll of 10,789 Asian American voters in 23 cities in eight states, of how voter ID checks have been used to disenfranchise eligible Asian American voters. The law firm of Orrick, Herrington & Sutcliffe is co-counsel on the brief.
    • Brief of the Asian American Justice Center and 25 Other Japanese, Chinese, Filipino, Korean, Hmong, South Asian, Pacific Islander, Cambodian, Laotian, and Vietnamese American Public Interest Groups. This brief argues that Indiana’s voter ID law disproportionately deprives Asian Americans of the right to vote and provides an invitation to discriminate against Asian American voters. The law firm of Gilbert Randolph is co-counsel on the brief.
    • Brief of the Mexican American Legal Defense and Educational Fund. This brief discusses the impact of voter ID laws on Latino voters and highlights the Arizona voter ID law as an example of similarly restrictive laws aimed at minority voters. The law firm of O’Melveny & Myers is co-counsel on the brief.
    • Brief of the National Congress of American Indians, Navajo Nation, and Agnes Laughter.  This brief discusses the severe and disproportionate burden voter ID laws place on American Indian and Alaska Native voters. Many Native American voters, particularly elders, continue to live traditional lifestyles in small communities in rural and remote areas where they rely on a combination of tribal and federal services that do not require any form of identification. Nationally, at least one in five voting-age Native Americans lacks a photo ID issued by a state or the federal government. The law firms of Dorsey & Whitney, and Sacks Tierney, served as co-counsel on the brief.
    • Brief of the National Law Center on Homelessness & Poverty. This brief, prepared with the assistance of Sidley & Austin, explains the burden Indiana’s voter ID law places on the right of homeless persons to vote, as many homeless persons cannot obtain state identification cards due to lack of a residence or the documentation needed to obtain such cards.
    • Brief of Youth and Student Groups. This brief, on behalf of the National Black, Asian, and Latino Law Student Associations, Rock the Vote, and other groups, discusses the disproportionately negative impact voter ID requirements have on young and student voters. The law firm of Proskauer Rose is counsel on the brief.
    • Brief of Congressman Keith Ellison. This brief, supported by other members of the Congressional Black Caucus, explains that Indiana’s voter ID law is an unconstitutional poll tax that especially hurts African Americans and describes Congress’s longstanding disapproval of poll taxes and voter ID requirements. The law firm of Venable served as counsel on the brief.
    • Brief of the Rutherford Institute. This brief argues that voter ID impinges on citizens’ privacy and discusses the danger to citizen privacy of using REAL ID for voting.
    • Brief of the Electronic Privacy Information Center.  This brief, filed in conjunction with legal scholars and technical experts, explains that, “Not only has the state failed to establish the need for voter identification law or to address the disparate impact of the law, the state’s voter ID system is imperfect, and relies on a flawed federal identification system” called REAL ID.
    • Brief of the Cyber Privacy Project and Others. This brief, prepared by Bingham McCutchen LLP and coordinated by CPP Director Richard Sobel, argues that, before an election official may demand government-issued photo identification, there must be at least a reasonable suspicion of criminal activity and that this standard is not met for almost all voters.  It also applies Section 2 of the Fourteenth Amendment, which calls for a reduction in the size of a state’s Congressional delegation when the state abridges its citizens’ voting rights.

    Briefs Discussing the Appropriate Legal Standard

    • Brief of Professor Rick Hasen. This brief (1) describes the rise in litigation and controversy over election administration since the 2000 Florida election fiasco; (2) explains the requirement under the Supreme Court’s existing precedent that election laws be “reasonably tailored” to address state interests; and (3) argues that the Indiana law is not reasonably tailored to any interest in preventing election fraud, especially given the state’s concession that no one in Indiana has ever been prosecuted for impersonation voter fraud. The law firm of Schulte Roth & Zabel is co-counsel on the brief.
    • Brief of Christopher Elmendorf and Daniel Tokaji. This brief discusses the appropriate legal standard for deciding election-related cases, explaining that burdens on the right to vote may not be upheld unless reasonably necessary to serve important government interests, arguing that the lower court’s ruling should be vacated and the case remanded, and describing the legal errors made by the Seventh Circuit.
    • Brief of International Law Scholars. This brief, on behalf of Frederic Schaeffer, Louis Massicote, Toby Moore, and others, argues that the requirements in other countries do not provide support for Indiana’s voter ID law.  Amici are represented by the law firm of Munger, Tolles & Olsen.
    • Brief of Senator Dianne Feinstein and Representatives Robert Brady and Zoe Lofgren.  This brief, filed by the chairs of the congressional committees and subcommittee with jurisdiction over election administration, discusses the compromise Congress reached on the issue of voter identification in the Help America Vote Act of 2002 (“HAVA”) and argues that Indiana’s strict photo ID law is unlawful because it is preempted by HAVA’s much more limited voter ID requirement. Robert Bauer, Kate Sawyer Keane, and the Center for Voting Rights and Protection are counsel on the brief.

    Brief in Support of Neither Side Discussing the Appropriate Legal Standard

    U.S. Supreme Court Briefs in Support of Respondents

    Briefs Arguing the Application of Legal Standard

    • Brief of the United States. This brief argues that Petitioners have not presented sufficient evidence to succeed in a facial challenge to the photo identification requirement.  It also argues that Petitioners have not shown that the law creates a severe or discriminatory burden on the right to vote, or that the law is insufficiently justified by the state’s interest in preventing fraud.
    • Brief of Lawyers Democracy Fund. This brief contends that Petitioners have failed to establish standing.  It also argues that a photo ID requirement is reasonable and not burdensome, and that Indiana should therefore be left flexibility to combat fraud and the perception of fraud as it sees fit.  The law firms of Husch & Eppenberger and Bell, McAndrews & Hiltachk are counsel on the brief.
    • Brief of Mountain States Legal Foundation. This brief primarily contends that Petitioners have failed to establish standing.  It also argues that Indiana’s photo ID requirement does not severely burden the right to vote, and that the law is a reasonable response to the threat of fraud.
    • Brief of Washington Legal Foundation. This brief asserts that Petitioners have no standing to challenge Indiana’s photo ID law, in part because the law does not meaningfully burden eligible Indiana voters.  It also contends that the state’s interest in regulating voter fraud through photo ID requirements outweighs the minimal burden the law allegedly imposes.  Wiley Rein is co-counsel on the brief.
    • Brief of Conservative Party of New York (belated submission). This brief argues that Indiana’s photo identification requirement does not present a severe burden, and is a reasonable means to protect against voter fraud, and should therefore be evaluated under reduced scrutiny.  The Atlantic Legal Foundation is counsel on the brief.

    Briefs Alleging the Need to Confront Election Fraud

    • Brief of Texas, Alabama, Colorado, Florida, Hawaii, Michigan, Nebraska, Puerto Rico, and South Dakota. This brief, filed by the Attorney Generals of nine states or territories, presents various allegations of fraud and discusses the need to address this fraud and the various approaches that states have taken to this end.  It also discusses some of the empirical evidence concerning the impact of voter identification laws, particularly on turnout.  It concludes that Indiana’s photo ID requirement does not create a severe burden on voters, and is justified by the need to prevent voter fraud.
    • Brief of Democratic and Republican Election Professionals. This brief filed by current and former election officials discusses the need to allow states flexibility to address voter fraud.  It discusses particular allegations of voter fraud, and finds both reason and support for Indiana’s photo identification requirement to combat fraud and the perception of fraud.  The law firm of Lathrop & Gage is counsel on the brief.
    • Brief of American Unity Legal Defense Fund. This brief discusses allegations of in-person impersonation fraud and other election fraud across the country, and argues that Indiana’s law is justified by the need to prevent such law.  The brief focuses in particular on allegations of registration fraud and fraud by non-citizens.  The law firm of Weinberg & Jacobs is counsel on this brief.
    • Brief of Doris Anne Sadler. This brief, filed by the former Clerk of Marion County, Indiana, discusses the limits and alleged inadequacy of signature verification as a means to protect against fraud.  It also argues that Indiana’s photo identification law is necessary for pollworkers to protect against fraud at the polls, and finds no evidence that voters have been adversely affected by the law.  The law firm of McTurnan and Tuner is counsel on the brief.
    • Brief of Evergreen Freedom Foundation. This brief discusses evidence of election fraud and popular support for photo ID laws, and asserts that alternatives to photo identification are insufficient to deter the fraud or perception of fraud that exists.  The brief emphasizes Washington State’s experience, although not exclusively.

    Briefs Evaluating the Impact of Voter ID Laws

    • Brief of Center for Equal Opportunity and Project 21. This brief examines the empirical evidence concerning the incremental impact of photo ID requirements on voting and turnout, within Indiana and outside of Indiana.  It concludes that photo ID laws have neither had a negative effect on turnout overall nor a disparate impact on certain segments of the population. The law firms of Sommer Barnard and Taft, Stettinius & Hollister are counsel on this brief.
    • Brief of Georgia Secretary of State Karen C. Handel. This brief focuses on Georgia’s experience with a photo ID requirement, asserting that Georgia has successfully applied its law without any demonstrated deprivation of the right to vote.  The brief finds that because photo ID regulations do not amount to a severe burden, legislators should have the flexibility to determine the fraud prevention means they prefer, and claims that photo identification is in any event more effective than proposed alternatives.  The law firms of Troutman Sanders and Strickland Brockington Lewis are co-counsel on this brief.
    • Brief of the Republican National Committee. This brief discusses bipartisan support for laws requiring photo ID at the polls, and reviews some of the empirical evidence finding that these identification requirements have no disparate impact on minorities.  It also concludes that such laws are reasonable to prevent fraud and the perception of fraud.
    • Brief of American Civil Rights Union. This brief discusses the ways in which individuals may comply with Indiana’s photo ID requirement, and finds both that none of them constitute a severe burden and that no citizen has been denied the right to vote.  It also asserts that the ID requirement is necessary to prevent illegal voting.  Finally, the brief argues that the Elections and Guarantee Clauses preserve the legislature’s flexibility to enact regulations like the photo ID law.

    Briefs Discussing Claims Other than the Burden on the Right to Vote

    Social Science Research on Voter ID

    Petition for a Writ of Certiorari

    Appeals Court Papers