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Brennan Center Criticizes Supreme Court Decision to Uphold Indiana Voter ID Law

Brennan Center for Justice criticized Court’s decision to uphold Indiana’s voter identification law—the strictest in the country—but noted that the decision did not give other states a blank check to block eligible voters

April 28, 2008

For Immediate Release:  April 28, 2008

Tim Bradley, BerlinRosen Public Affairs (646) 452–5637
Mike Webb, Brennan Center for Justice (212) 998–6746

While Court Leaves Door Open For Future Challenges to Restrictive ID Laws, Center Calls on Lawmakers Across Country to Enact Laws That Protect the Right to Vote


New York—Today the Brennan Center for Justice criticized the U.S. Supreme Court’s decision to uphold Indiana’s voter identification law—the strictest in the country—but noted that the decision did not give other states a blank check to block eligible voters.  The Brennan Center called on lawmakers across the country to reject similar laws and to pass affirmative legislation protecting the right to vote.

“This year, millions of new voters are surging into the political process.  Lawmakers should be encouraging full participation by eligible citizens, not erecting new barriers to voting.  This is precisely the wrong message for the Supreme Court to send in this critical year.  We shouldn’t give partisans an excuse to find ways to keep people from voting,” said Michael Waldman, the Brennan Center’s Executive Director. 

The Court’s 6–3 opinion in Crawford v. Marion County Election Board, widely considered the most important voting rights case since Bush v. Gore, recognized that ID laws may have negative impact, even when there is not sufficient evidence to find them unconstitutional.  As six Justices agreed, Indiana’s law places a heavier burden on some eligible citizens, particularly elderly and low-income persons who could be blocked from voting without the proper documentation.  The Brennan Center urged lawmakers to heed the disenfranchising impacts of ID laws acknowledged in today’s decision.

“Today’s decision is not the end of the story on voter ID.  Although the Court upheld Indiana’s voter ID law, it did not say that states must or even should pass restrictive ID laws.  Now it’s up to legislators and courts in states like Texas, Missouri, and Florida to decide if they are going to follow Indiana’s lead and disenfranchise American citizens, or if they’re going to protect the right to vote for all Americans as we head into a critical national election,” stated Wendy Weiser, Deputy Director of the Democracy Program at the Brennan Center for Justice.  "In doing so, they should keep in mind that the Court left open the possibility of future lawsuits against restrictive ID laws that prevent people from voting.

Under Indiana’s law, voters must present a government-issued photo ID with an expiration date that has not elapsed.  The law does not accept Veterans’ IDs, Congressional IDs, student IDs, or work IDs.

Many citizens—disproportionately low-income, minorities, students and seniors—do not have the identification required by Indiana’s law.

“In the three years since this case was brought, reliable studies have shown that 10–12% of eligible voting-age Americans do not have voter government-issued photo identification, particularly low-income, minority, senior, and student voters.  Unfortunately, some will ignore these facts, and seek to use this ruling to manipulate the rules of the game and block these eligible voters from the ballot box,” stated Justin Levitt, counsel at the Brennan Center.

In rejecting the challenge to the law on facial grounds, the Court today ruled that future challenges to voter laws must be filed with respect to the application of a specific law—after its controversial mandates are already applied in an election.

“With this decision, the Court has seriously watered down protections to the franchise by insisting that the rights of voters can be protected only after their rights have been abused,” stated Renée Paradis, counsel at the Brennan Center. “State and federal lawmakers must be ready to reject laws like Indiana’s and ensure that the rights of voters prevails,” she stated.

In an amicus brief filed with the Supreme Court last November, and cited repeatedly by several Justices today, the Brennan Center demonstrated that each instance of purported voter fraud used to justify Indiana’s law was discredited or could not have been prevented by voter ID.

“Supporters of Indiana’s law seek to stop an imaginary epidemic of voter fraud, even at the expense of preventing real, eligible citizens from voting,” stated Justin Levitt, author of The Truth About Voter Fraud. ”They did not provide the Court a single substantiated case of voter impersonation in the history of the state, yet the Court allowed the state’s purported concern with stopping this fraud to outweigh the very real burden Indiana is placing on its citizens," he continued.

“As Justice Breyer recognized, Indiana’s system puts the cart before the horse, demanding ID of voters before ensuring that voters actually have them.  We have to fix our ID system to make sure that people who don’t have IDs can get them—free of charge and without hassle or delay.  With unprecedented interest in elections across the country this year, we need to make sure that laws like Indiana’s don’t dampen turnout and enthusiasm,” he stated.

Only one other state—Georgia—has voter identification requirements similar to Indiana’s.   All other states allow voters a wide variety of different means to confirm their identity before voting.   Though legislatures in other states have proposed legislation similar to Indiana’s restrictive law, such bills have been met with opposition across the country.

Additionally, there is growing support for affirmative legislation like Election Day Registration and Universal Registration on the state and federal levels that will expand the franchise and make voting easier for eligible citizens.

“It will be increasingly up to state and federal legislatures across the country to reject the restrictive policy the Court approved today and make affirmative measures like universal- and election-day voter registration integral to the fairness and security of our elections. There’s real enthusiasm at all levels of the country to make it easier for eligible citizens to vote and have their vote counted. Today’s decision only affirms the need to make that happen,” said Weiser.

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