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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