Think about it for a moment.
Now: If it's OK, let's ponder the scope of disenfranchisement that's going to result.
Thanks to your tax dollars at work....
Nos. 06-2218, 06-2317Link.
WILLIAM CRAWFORD, et al.,
Plaintiffs-Appellants,
v.
MARION COUNTY ELECTION BOARD, et al.,
Defendants-Appellees.
In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-2218, 06-2317
WILLIAM CRAWFORD, et al.,
Plaintiffs-Appellants,
v.
MARION COUNTY ELECTION BOARD, et al.,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:05-cv-00634-SEB-VES—Sarah Evans Barker, Judge.
____________
ARGUED OCTOBER 18, 2006—DECIDED JANUARY 4, 2007
____________
Before POSNER, EVANS, and SYKES, Circuit Judges.
POSNER, Circuit Judge. A number of candidates for
public office, and voters, along with organizations such as
the Democratic Party that are active in electoral politics,
challenge a new Indiana voting law as an undue burden
on the right to vote, a right that the Supreme Court has
found latent in the Constitution. E.g., Illinois State Board of
Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979),
and cases cited in Igartua-De La Rosa v. United States, 417
F.3d 145, 169-70 (1st Cir. 2005). The law requires, with
certain exceptions, that persons wanting to vote in person
2 Nos. 06-2218, 06-2317
in either a primary or a general election must present at
the polling place a government-issued photo ID (see Ind.
Code § 3-5-2-40.5), Ind. Code §§ 3-10-1-7.2, 3-11-8-25.1),
unless the person either wants to vote by absentee ballot
(and is eligible to do so) or lives in a nursing home. Ind.
Code §§ 3-11-8-25.1(e), 3-11-10-1.2. The district court
granted summary judgment for the defendants. Indiana
Democratic Party v. Rokita, 2006 U.S. Dist. LEXIS 20321 (N.D.
Ind. Apr. 14, 2006).
Until the new law went into effect, someone who
wanted to vote in person and was not voting for the first
time just had to sign the poll book at the polling place;
“there would generally be a photographic copy of the
signature [on file] that would be compared” by the staff
with the signature in the poll book. Id. at *18-*19. The new
law’s requirement that the would-be voter present a
government-issued photo ID, such as a passport or a
driver’s license, is no problem for people who have such
a document, as most people do. Nor is it a problem for
people who vote by absentee ballot or who live in nurs-
ing homes—and anyone 65 or over can vote by absentee
ballot. But what about people who do not have photo IDs
and must vote in person, if they vote at all, because they
don’t live in nursing homes and are ineligible to cast
absentee ballots, though the eligibility requirements are
not stringent (see Ind. Code § 3-11-10-24, and compare
Griffin v. Roupas, 385 F.3d 1128, 1129 (7th Cir. 2004),
discussing the Illinois requirements)? They can get a
photo ID from the Indiana motor vehicle bureau by
presenting their birth certificate (or certificate of naturaliza-
tion if they were born outside the United States) or a
certified copy, plus a document that has their name and
address on it, such as a utility bill. Both the indigent and
Nos. 06-2218, 06-2317 3
the nonindigent who does not have (or have with him) a
photo ID can, if challenged, cast a provisional ballot and
then has 10 days either to file an indigency affidavit or to
procure a photo ID. Ind. Code §§ 3-11.7-5-2.5, 3-11-8-23, 3-
11-8-25.1.
Even though it is exceedingly difficult to maneuver in
today’s America without a photo ID (try flying, or even
entering a tall building such as the courthouse in which
we sit, without one; see United States v. Smith, 426 F.3d
567 (2d Cir. 2005)), and as a consequence the vast majority
of adults have such identification, the Indiana law will
deter some people from voting. A great many people
who are eligible to vote don’t bother to do so. Many do not
register, and many who do register still don’t vote, or
vote infrequently. The benefits of voting to the individual
voter are elusive (a vote in a political election rarely
has any instrumental value, since elections for political
office at the state or federal level are never decided by
just one vote), and even very slight costs in time or bother
or out-of-pocket expense deter many people from voting,
or at least from voting in elections they’re not much
interested in. So some people who have not bothered to
obtain a photo ID will not bother to do so just to be al-
lowed to vote, and a few who have a photo ID but forget
to bring it to the polling place will say what the hell and
not vote, rather than go home and get the ID and return to
the polling place.
No doubt most people who don’t have photo ID are low
on the economic ladder and thus, if they do vote, are more
likely to vote for Democratic than Republican candidates.
Exit polls in the recent midterm elections show a strong
negative correlation between income and voting Demo-
cratic, with the percentage voting Democratic rising
4 Nos. 06-2218, 06-2317
from 45 percent for voters with an income of at least
$200,000 to 67 percent for voters having an income below
$15,000. “Exit Polls,” http://www.cnn.com/ELECTION/
2006/pages/results/states/US/H/00/epolls.0.html; see
also Jeffrey M. Stonecash, Class and Party in American
Politics 114 (2000) (tab. 5.7). Thus the new law injures
the Democratic Party by compelling the party to devote
resources to getting to the polls those of its supporters
who would otherwise be discouraged by the new law
from bothering to vote. See Havens Realty Corp v. Coleman,
455 U.S. 363, 378 (1982); Smith v. Boyle, 144 F.3d 1060, 1061-
63 (7th Cir. 1998). The fact that the added cost has not
been estimated and may be slight does not affect stand-
ing, which requires only a minimal showing of injury.
Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 180-84 (2000); United States v.
Students Challenging Regulatory Agency Procedures (SCRAP),
412 U.S. 669, 690 n. 14 (1973); 520 Michigan Avenue Associ-
ates, Ltd. v. Devine, 433 F.3d 961, 962-63 (7th Cir. 2006); Baur
v. Veneman, 352 F.3d 625, 633-34 (2d Cir. 2003). The Demo-
cratic Party also has standing to assert the rights of those
of its members who will be prevented from voting by the
new law. Sandusky County Democratic Party v. Blackwell, 387
F.3d 565, 573-74 (6th Cir. 2004); see also Hunt v. Washington
State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).
The standing of the many other plaintiffs in these consoli-
dated suits—candidates, voters, organizations—is less
certain, but need not be addressed. Only injunctive relief
is sought, and for that only one plaintiff with standing
is required; and the Democratic Party has standing. Texas
Democratic Party v. Benkiser, 459 F.3d 582, 585-86 (5th Cir.
2006); Schulz v. Williams, 44 F.3d 48, 50-53 (2d Cir. 1994);
Owen v. Mulligan, 640 F.2d 1130, 1131-33 (9th Cir. 1981); see
Nos. 06-2218, 06-2317 5
Libertarian Party v. Rednour, 108 F.3d 768, 770 (7th Cir.
1997).
But there is something remarkable about the plaintiffs
considered as a whole, which will provide the transition to
our consideration of the merits. There is not a single
plaintiff who intends not to vote because of the new
law—that is, who would vote were it not for the law. There
are plaintiffs who have photo IDs and so are not affected
by the law at all and plaintiffs who have no photo IDs but
have not said they would vote if they did and so who
also are, as far as we can tell, unaffected by the law. There
thus are no plaintiffs whom the law will deter from vot-
ing. No doubt there are at least a few such people in
Indiana, but the inability of the sponsors of this litiga-
tion to find any such person to join as a plaintiff suggests
that the motivation for the suit is simply that the law may
require the Democratic Party and the other organizational
plaintiffs to work harder to get every last one of their
supporters to the polls.
The fewer the people who will actually disfranchise
themselves rather than go to the bother and, if they are not
indigent and don’t have their birth certificate and so must
order a copy and pay a fee, the expense of obtaining a
photo ID, the less of a showing the state need make to
justify the law. The fewer people harmed by a law, the
less total harm there is to balance against whatever bene-
fits the law might confer. The argument pressed by the
plaintiffs that any burden on the right to vote, however
slight it is or however meager the number of voters af-
fected by it, cannot pass constitutional muster unless it is
shown to serve a compelling state interest was rejected in
Burdick v. Takushi, 504 U.S. 428, 433-34 (1992). The Court
said that “election laws will invariably impose some
6 Nos. 06-2218, 06-2317
burden upon individual voters. . . . [T]o subject every
voting regulation to strict scrutiny and to require that the
regulation be narrowly tailored to advance a compelling
state interest, as petitioner suggests, would tie the hands
of States seeking to assure that elections are operated
equitably and efficiently.” See also Anderson v. Celebrezze,
460 U.S. 780, 788-90 (1983), where the Court pointed to the
need to “consider the character and magnitude of the
asserted injury” (emphasis added); Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 358 (1997); Storer v. Brown, 415
U.S. 724, 730 (1974); Schulz v. Williams, 44 F.3d 48, 56 (2d
Cir. 1994).
A strict standard would be especially inappropriate in
a case such as this, in which the right to vote is on both
sides of the ledger. See Purcell v. Gonzalez, 127 S. Ct. 5, 7
(2006) (per curiam); cf. Burson v. Freeman, 504 U.S. 191, 198,
206, 211 (1992). The Indiana law is not like a poll tax,
where on one side is the right to vote and on the other
side the state’s interest in defraying the cost of elections or
in limiting the franchise to people who really care about
voting or in excluding poor people or in discouraging
people who are black. The purpose of the Indiana law is
to reduce voting fraud, and voting fraud impairs the right
of legitimate voters to vote by diluting their votes—
dilution being recognized to be an impairment of the right
to vote. Purcell v. Gonzalez, supra, 127 S. Ct. at 7; Reynolds
v. Sims, 377 U.S. 533, 555 (1964); Siegel v. LePore, 234 F.3d
1163, 1199 (11th Cir. 2000). On one side of the balance in
this case is the effect of requiring a photo ID in inducing
eligible voters to disfranchise themselves. That effect, so
far as the record reveals, is slight. The principal evidence
on which the plaintiffs relied to show that many voters
would be disfranchised was declared by the district judge
Nos. 06-2218, 06-2317 7
to be “totally unreliable” because of a number of method-
ological flaws; and we accept her finding.
On the other side of the balance is voting fraud, specifi-
cally the form of voting fraud in which a person shows up
at the polls claiming to be someone else—someone who
has left the district, or died, too recently to have been
removed from the list of registered voters, or someone
who has not voted yet on election day. Without requiring
a photo ID, there is little if any chance of preventing this
kind of fraud because busy poll workers are unlikely to
scrutinize signatures carefully and argue with people
who deny having forged someone else’s signature. The
plaintiffs point out that voting fraud is a crime, see, e.g.,
Ind. Code 3-14-2-12, and they argue that the penalty (six
months to three years in prison plus a fine of up to $10,000,
Ind. Code § 35-50-2-7) should suffice to deter the crime.
They further note that as far as anyone knows, no one in
Indiana, and not many people elsewhere, are known to
have been prosecuted for impersonating a registered voter.
But the absence of prosecutions is explained by the
endemic underenforcement of minor criminal laws (minor
as they appear to the public and prosecutors, at all events)
and by the extreme difficulty of apprehending a voter
impersonator. He enters the polling place, gives a name
that is not his own, votes, and leaves. If later it is discov-
ered that the name he gave is that of a dead person, no
one at the polling place will remember the face of the
person who gave that name, and if someone did remember
it, what would he do with the information? The imperson-
ator and the person impersonated (if living) might show
up at the polls at the same time and a confrontation might
ensue that might lead to a citizen arrest or a call to the
police who would arrive before the impersonator had
8 Nos. 06-2218, 06-2317
fled, and arrest him. A more likely sequence would be for
the impersonated person to have voted already when the
impersonator arrived and tried to vote in his name. But
in either case an arrest would be most unlikely (and
likewise if the impersonation were discovered or sus-
pected by comparing signatures, when that is done), as the
resulting commotion would disrupt the voting. And
anyway the impersonated voter is likely to be dead or
in another district or precinct or to be acting in cahoots
with the impersonator, rather than to be a neighbor
(precincts are small, sometimes a single apartment house).
One response, which has a parallel to littering, another
crime the perpetrators of which are almost impossible to
catch, would be to impose a very severe criminal penalty
for voting fraud. Another, however, is to take preventive
action, as Indiana has done by requiring a photo ID.
The plaintiffs argue that while vote fraud by imperson-
ation may be a problem in other states, it is not in Indi-
ana, because there are no reports of such fraud in that state.
But that lacuna may reflect nothing more than the vagaries
of journalists’ and other investigators’ choice of scandals
to investigate. Some voter impersonation has been found
(though not much, for remember that it is difficult to
detect) in the states that have been studied, and those
states do not appear to be on average more “dishonest”
than Indiana; for besides the notorious examples of Florida
and Illinois, they include Michigan, Missouri, and Wash-
ington (state). Indirect evidence of such fraud, or at least of
an acute danger of such fraud, in Indiana is provided by
the discrepancy between the number of people listed on the
registered-voter rolls in the state and the substantially
smaller number of people actually eligible to vote. The
defendants’ expert estimated that the registration rolls
Nos. 06-2218, 06-2317 9
contained 1.3 million more names than the eligible voters
in Indiana. This seems too high, but the plaintiffs’ expert
acknowledged that the rolls are inflated. How many
impersonations there are we do not know, but the plain-
tiffs have not shown that there are fewer impersonations
than there are eligible voters whom the new law will
prevent from voting.
The plaintiffs point out that the National Voter Registra-
tion Act of 1993, 42 U.S.C. § 1973gg-6(a)(4), requires all
states to purge their registration rolls of ineligible voters.
See also the Help American Vote Act, 42 U.S.C. § 15301,
particularly § 15483(a)(4)(B). The purge has not yet been
completed in Indiana. One thing that is slowing it down
is that removing a name from the voter registration roll
requires notice to a registered voter whose address ap-
pears from postal records to have changed, and only if a
voter fails to respond to the notice and fails to vote in two
successive federal elections can the state remove him from
the rolls. 42 U.S.C. §§ U.S.C. §1973gg-6(c), (d). And when
the purge is completed, it is likely to eliminate many
more eligible voters than the new Indiana law will do, cf.
Jeffrey A. Blomberg, “Note: Protecting the Right Not to
Vote From Voter Purge Statutes,” 64 Fordham L. Rev. 1015,
1016-17 (1995), yet provide only a short-term solution,
since as soon as the purge is complete the inflation of the
registration rolls will recommence.
The plaintiffs complain that the new Indiana law is
underinclusive because it fails to require absentee voters
to present photo IDs. But how would that work? The
voter could make a photocopy of his driver’s license or
passport or other government-issued identification and
include it with his absentee ballot, but there would be no
way for the state election officials to determine whether
10 Nos. 06-2218, 06-2317
the photo ID actually belonged to the absentee voter,
since he wouldn’t be presenting his face at the polling
place for comparison with the photo. Cf. Griffin v.
Roupas, supra, 385 F.3d at 1130-31.
Perhaps the Indiana law can be improved—what can’t
be?—but the details for regulating elections must be left to
the states, pursuant to Article I, section 4, of the Con-
stitution, which provides that “the times, places and
manner of holding elections for Senators and Representa-
tives, shall be prescribed in each state by the legislature
thereof; but the Congress may at any time by law make
or alter such regulations, except as to the places of choos-
ing Senators.” “To deem ordinary and widespread bur-
dens like these severe would subject virtually every
electoral regulation to strict scrutiny, hamper the ability
of States to run efficient and equitable elections, and
compel federal courts to rewrite state electoral codes. The
Constitution does not require that result, for it is beyond
question ‘that States may, and inevitably must, enact
reasonable regulations of parties, elections, and ballots
to reduce election- and campaign-related disorder.’”
Clingman v. Beaver, 544 U.S. 581, 593 (2005), quoting the
Timmons case cited earlier; see also Anderson v. Celebrezze,
supra, 460 U.S. at 788; Griffin v. Roupas, supra, 385 F.3d at
1130-31.
Regarding the plaintiffs’ other arguments, we have
nothing to add to the discussion by the district judge. The
judgment for the defendants is
AFFIRMED.
Nos. 06-2218, 06-2317 11
EVANS, Circuit Judge, dissenting. Let’s not beat around
the bush: The Indiana voter photo ID law is a not-too-
thinly-veiled attempt to discourage election-day turnout
by certain folks believed to skew Democratic. We should
subject this law to strict scrutiny—or at least, in the wake
of Burdick v. Takushi, 504 U.S. 428 (1992), something akin
to “strict scrutiny light”—and strike it down as an undue
burden on the fundamental right to vote.
The percentage of eligible voters participating in elec-
tions has, for many years, been on a downward trajectory.
With that being the case, one would think states should
be looking for creative ways (like allowing people to vote
at places they frequent and are familiar with, like
shopping malls rather than basements of fire stations) to
increase voter participation. Yet, the Indiana law we
sanction today does just the opposite. Constricting the
franchise in a democratic society, when efforts should
be instead undertaken to expand it, is not the way to go.
The fig leaf of respectability providing the motive behind
this law is that it is necessary to prevent voter fraud—a
person showing up at the polls pretending to be some-
one else. But where is the evidence of that kind of voter
fraud in this record? Voting fraud is a crime (punishable
by up to 3 years in prison and a fine of up to $10,000 in
Indiana) and, at oral argument, the defenders of this law
candidly acknowledged that no one—in the history of
Indiana—had ever been charged with violating that law.
Nationwide, a preliminary report to the U.S. Election
Assistance Commission has found little evidence of the
type of polling-place fraud that photo ID laws seek to stop.
If that’s the case, where is the justification for this law? Is
it wise to use a sledgehammer to hit either a real or imagi-
nary fly on a glass coffee table? I think not.
12 Nos. 06-2218, 06-2317
Indiana law provides that a voter shall be challenged at
the poll and required to vote only by provisional ballot
if: (1) “the voter is unable or declines to present the Proof
of Identification or (2) a member of the precinct election
board determines that the Proof of Identification provided
by the voter does not qualify as Proof of Identification
under the law. “Proof of Identification” is defined as a
document that satisfies all the following:
(1) The document shows the name of the individual
to whom the document was issued, and the name
conforms to the name in the individual’s voter
registration record.
(2) The document shows a photograph of the individ-
ual to whom the document was issued.
(3) The document includes an expiration date, and the
document:
(A)is not expired; or
(B) expired after the date of the most recent gen-
eral election.
(4) The document was issued by the United States or
the State of Indiana.
The potential for mischief with this law is obvious. Does
the name on the ID “conform” to the name on the voter
registration list? If the last name of a newly married
woman is on the ID but her maiden name is on the reg-
istration list, does it conform? If a name is misspelled
on one—Schmit versus Schmitt—does it conform? If a
“Terence” appears on one and a shortened “Terry” on the
other, does it conform?
But these are perhaps minor concerns. The real problem
is that this law will make it significantly more difficult for
Nos. 06-2218, 06-2317 13
1
Ultimately, Carson, a Democrat, won her seat with a 54-46
advantage over her Republican opponent. Although it was
not in the Hoosier state, Mark Sanford, the Republican gov-
ernor of South Carolina, was prevented from voting last month
when he showed up at his polling station without the correct ID
to vote.
some eligible voters—I have no idea how many, but
4 percent is a number that has been bandied about—to
vote. And this group is mostly comprised of people who
are poor, elderly, minorities, disabled, or some combina-
tion thereof. I would suspect that few, if any, in this class
have passports (which cost in the neighborhood of $100),
and most don’t have drivers licenses (who needs a drivers
license if you don’t drive a car?) or state-issued ID cards
which require valid (certified) birth certificates. And it’s
not particularly easy for a poor, elderly person who lives
in South Bend, but was born in Arkansas, to get a certi-
fied copy of his birth certificate.
Now I certainly agree with my brother Posner that “it is
exceedingly difficult to maneuver in today’s America
without a photo ID.” But Indiana’s law mostly affects
those who, for various reasons, lack any real maneuver-
ability at all. And lest one thinks that those who have
maneuverability are immune from running into trouble
with this law, consider this anecdotal tidbit.
The Washington Post (Nov. 3, 2006) reported that on
Indiana’s primary election day, Rep. Julia Carson1 shoved
her congressional identification card in a pocket, ran out
of her house and raced down the street to be at her polling
site when it opened at 6 a.m. Carson, seeking to represent
an Indianapolis district for a sixth term, showed the card
to a poll worker, who said it was unacceptable under a
14 Nos. 06-2218, 06-2317
new state law that requires every voter to show proof of
identity with a certain type of photo ID. But Carson, after
being turned away, went home and later returned to their
polling places to cast her vote. Would most people, espe-
cially those without a vested interest in the system, do the
same thing? I doubt it.
I believe that most of the problems with our voting
system—like deceased persons or felons on registration
rolls, machines that malfunction, and confusing ballots
(think butterfly)—are suggestive of mismanagement, not
electoral wrongdoing. And I recognize that there is, and
perhaps there may always be, a fundamental tension
between claims of voter fraud and fears of disenfranchise-
ment. But Indiana’s law, because it allows nothing except
a passport or an Indiana ID card to prove that a poten-
tial voter is who he says he is, tips far too far in the
wrong direction.
Burdick, which concerned a challenge to a Hawaii law
that did not require the counting of write-in votes, put to
rest the notion that strict scrutiny applies to every law
that imposes a burden on the right to vote. As the Court
observed:
[T]o subject every voting regulation to strict scrutiny
and to require that the regulation be narrowly tailored
to advance a compelling state interest . . . would tie the
hands of States seeking to assure that elections are
operated equitably and efficiently . . . .
Instead, . . . [a] court considering a challenge to a
state election law must weigh “the character and
magnitude of the asserted injury to the rights protected
by the First and Fourteenth Amendments that the
plaintiff seeks to vindicate” against “the precise inter-
Nos. 06-2218, 06-2317 15
ests put forward by the State as justifications for the
burden imposed by its rule,” taking into considera-
tion “the extent to which those interests make it neces-
sary to burden the plaintiff’s rights.”
Burdick, 504 U.S. at 433-34 (quoting Anderson v. Celebrezze,
460 U.S. 780, 789 (1983)); Tashjian v. Republican Party of
Conn., 479 U.S. 208, 213-14 (1986).
So Burdick adopts a flexible standard, and as I read it,
strict scrutiny may still be appropriate in cases where the
burden, as it is here, is great and the state’s justification
for it, again as it is here, is hollow. At the very least,
I would apply a standard here that would at least be
something close to “strict scrutiny light.” Applying that
standard, I would conclude that Indiana’s law imposes
an undue burden on a recognizable segment of potential
eligible voters and that it therefore violates those voters’
rights under the First and Fourteenth Amendments to
the Constitution.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-4-07
In Posner's defense, it seems the decision is pretty much based on procedural grounds but I'm not sure that in view of the circumstances, the law couldn't have just been shot down. The kind of person actually disenfranchised ain't the kind of person likely to go to the ACLU or a constitutional lawyer to fight the issue.
But of course Posner isn't just a Richard but a Dick as well.... (And a public figure as well....)
No comments:
Post a Comment