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Whose Burden Is It?

Weighing in on the Supreme Court’s Crawford decision.

  • Brennan Center for Justice
May 1, 2008

“The Great Disenfranchisement of 2008 has begun,” according to Daily Kos, on yesterday’s Supreme Court decision to uphold Indiana’s voter ID law. Dubbed the most important election case since Bush v. Gore, Crawford posed a challenge to the law, the most restrictive in the nation, which could disenfranchise thousands of eligible voters and could have a big impact on the November election. The Washington Post, LA Times, WSJ, NY Times, and USA Today all front the 6–3 decision, and there’s also interesting analysis on Slate’s Convictions blog, and from Rick Hasen at Election Law Blog.

There seemed to be no disagreement among the justices that these laws would make voting more difficult for some people. The question then hinged on whether the law was enough of a burden to be unconstitutional. And so the 6–3 decision allowed us a window into what our Supreme Court justices deem to be a “burden.”

Indiana’s law requires voters to show a current photo identification issued by either the state of Indiana or the federal government (no student or employee IDs, no utility bills, and no expired IDs allowed). Indianans can apply for free photo ID from the state, but in order to get one they must show another official document, like a birth certificate or passport, which do cost money to obtain.

For people who show up at the polls without ID, they can cast a provisional ballot that will only be counted (with few exceptions) if they appear at a county clerks’ office within 10 days with the proper ID.

Stevens wrote in his lead opinion that there was not any “concrete evidence of the burden imposed on voters who now lack photo identification,” and so concluded that Indiana’s law did not pose a “severe burden,” whereas Breyer saw the burden as “serious” and "uncomfortably close" to an actual monetary poll tax.

Scalia, Thomas, and Alito called the law “eminently reasonable.” Scalia even implied in a footnote that the poll tax (struck down by the Supreme Court over forty years ago) would not be unconstitutional.

Many states with voter ID laws allow people to show alternative forms that are equally helpful in validating their identities.

Any decision that allows Hans von Spakovsky to say it has “vindicated the Bush Justice Department” should be met with pause. However, the 6–3 split “kept the door open to future lawsuits that provided more evidence,” said Linda Greenhouse in the New York Times. In other words, voters can challenge these laws on their own once they can provide evidence that they were prevented from voting.

Talk about burdens. “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,” said Renée Paradis, counsel at the Brennan Center. “In putting virtually all the burden of proof on plaintiffs seeking to argue that laws illegally restrict their voting rights,” said the Brennan Center’s Wendy Weiser to the NY Times, “the decision makes it much tougher for voting rights groups to prevail in court.”

This is a good time to remind Indianans that if they do have trouble voting next Tuesday, or encounter any confusion with ID requirements, they should call the Election Protection Hotline at 866-OUR-VOTE.