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Court Upholds Indiana Voter Id Law

In an editorial in our last issue, we mentioned that the Supreme Court was likely to uphold Indiana's photo-identification law for voters, addressing a largely nonexistent problem (indeed, not a single case of in-person voter fraud in Indiana has been identified). Today, the Supreme Court did, in fact, uphold the law, by a vote of 6-3, with John Paul Stevens joining the five conservative justices in siding with Indiana. The opinion is here (pdf); election-law expert Rick Hasen has analysis here. I was curious to see whether Justice Stevens, in his opinion, addressed the question of whether in-person voter fraud is actually a problem. He does:

The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor--though perpetrated using absentee ballots and not in-person fraud--demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.

The only examples Stevens can cite in the footnotes are a colorful description of Boss Tweed paying people to vote multiple times in the election of 1868, and an instance of one individual committing in-person voter fraud in Washington state in 2004. The third example (from the 2003 East Chicago race) isn't even relevant, as Stevens concedes, since it's a kind of voter fraud not addressed by the Indiana statute. It's pretty clear that Indiana's law would be OK if it advanced some governmental interest--but should it really be permissible for Indiana to impose a substantial burden on citizens who lack photo identification in order to prevent a type of voter fraud perpetrated by Boss Tweed 140 years ago?

Update: Ah, I see that Marty Lederman beat me to it.

--Josh Patashnik