Indiana's strict law requiring voters to show current photo identification at the polls appears likely to survive a constitutional challenge before the Supreme Court.
Based on oral arguments Wednesday in Crawford v. Marion County Education Board and Indiana Democratic Party v. Rokita, the Court's conservative majority raised potentially fatal concerns about whether the challengers had standing to sue, and whether the law should be attacked on its face before it takes effect and its "as-applied" impact on voters can be assessed.
Justices, including swing Justice Anthony Kennedy, also questioned whether more than a trivial number of voters would be deterred from voting by the law.
"You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?" Kennedy asked incredulously of Paul Smith, who was arguing for the challengers.
No matter what the burden, replied Smith, a partner at Jenner & Block in Washington, D.C., "Those burdens vastly outweigh any incremental state interest that is being served."
Under the 2005 law, which legislators said was aimed at preventing voter fraud, voters must show a government-issued photo ID card in order to cast a ballot. Those without the necessary ID can cast a provisional ballot, but for the vote to count, they must go to a county office within 10 days and produce required identification.
The Indiana Democratic Party and the American Civil Liberties Union challenged the law as an unconstitutional barrier to voting, especially for poor, minority, and elderly voters who are less likely to have licenses. Lower courts upheld the law, including the 7th U.S. Circuit Court of Appeals. Dissenting Judge Terence Evans called the statute a "not-too-thinly-veiled attempt" to discourage voters who tend to vote Democratic. More than a dozen states have similar but less strict laws, and others are poised to pass ID laws if the Court upholds Indiana's. Democrats say such laws could hurt their chances for victory in 2008 elections.
The partisan subtext of the case was barely mentioned during the high court's oral arguments except toward the end when Justice John Paul Stevens asked U.S. Solicitor General Paul Clement whether the Court should consider the fact the Indiana Legislature in 2005 passed the law along strict party lines, with Republicans supporting it and Democrats opposing it. Clement laughed it off, suggesting that in light of the 2006 national election results, in which Democrats bested Republicans, any plan by Republicans to deter Democratic votes "went pretty far awry."
In the end, the challenge to the Indiana law may fall victim to twin trends that are emerging from the Roberts Court: concern about standing and an aversion to "facial" attacks to laws that have not taken effect yet.
Scalia expressed concern that the state Democratic Party, rather than individual Democrats, has challenged the law. Smith noted that the lower courts had found sufficient standing for the suits to proceed.
As for facial challenges, Court conservatives have shown increasing frustration that they are asked to assess statutes that are challenged and enjoined as soon as they are passed, without a clear idea of the nature and extent of their impact in the real world when they actually take effect.
That was a major concern Wednesday as justices pressed lawyers to quantify how many actual voters would be deterred by the Indiana law. Chief Justice John Roberts Jr. told Smith that the record did not contain "a single instance of somebody who was denied the right to vote" because of the law.
Indiana Solicitor General Thomas Fisher, arguing in defense of the law, also called the impact "infinitesimal."
Roberts, an Indiana native, minimized the inconvenience posed for rejected voters who have to come up with proper identification and present it at county offices. "County seats aren't very far for people in Indiana," he said.
Smith seemed ready for that point, replying quickly that an indigent person in Gary, Ind., would have to take a bus 17 miles to county offices in Crown Point. "If you're indigent, that is a significant burden."
Smith also minimized the problem the law seeks to combat, namely voter fraud. "To call it scant is to overstate it."
Later Scalia described facial challenges as "an immense dictum on the part of this Court ... This Court is sitting back and looking at the ceiling and saying, 'Oh, we can envision not the case before us, but other cases.' ... We can imagine cases in which this law could be unconstitutional, and therefore the whole law is unconstitutional. That's not ordinarily the way courts behave."
But Smith countered that waiting for elections to take place under the new law before a challenge is allowed could affect the outcome of elections and would create "an utter morass."
Referring to poll taxes that were challenged and struck down during the civil rights era as a deterrent to black voters, Smith added, "Nobody challenged the poll tax as-applied."
