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Just eight days before Indiana’s presidential primary, the Supreme Court upheld that state’s controversial voter ID law, which critics say will discourage the poor, the elderly, and minorities from casting ballots. The law requires voters to present current government-issued photo identification, and for those who cannot, it establishes a procedure for validating votes after election day. Some 20 states have similar laws, though Indiana’s is viewed as the strictest. The Indiana law won the support of six justices, who divided on the rationale. The main opinion in Crawford v. Marion County Election Board, authored by Justice John Paul Stevens, found that the state’s interest in protecting the integrity of the voting process outweighed the insufficiently proven burdens the law imposes on voters. “The evidence in the record is not sufficient to support a facial attack on the law,” wrote Stevens, who was joined by Chief Justice John Roberts Jr. and Justice Anthony Kennedy. The Stevens opinion also acknowledged that all of the state’s Republican legislators, and none of the Democrats, voted for the law in 2005. But partisan motivation does not invalidate a law, Stevens said, as long as there are “valid neutral justifications” such as reducing voter fraud. Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel Alito Jr., wrote separately to assert that the burden on voters imposed by the law is “minimal and justified” and therefore no further inquiry about the nature of the burden is needed. While the opinion leaves open the possibility of an “as applied” challenge by actual voters who show the law disadvantaged their right to vote, analysts on both sides indicate the Court’s opinions will make it difficult for those suits to succeed. Even the dissenters recognized the state’s interest in preserving the integrity of the elections, and none of the justices embraced the difficult-to-meet strict scrutiny standard urged by the challengers to Indiana’s law, says Thor Hearne of Lathrop & Gage. “This should shut the door on efforts to manipulate the election process by lawsuit,” says Hearne, who wrote a brief for members of Congress who favored the Indiana law. “This opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections,” wrote Richard Hasen, a professor at Loyola Law School Los Angeles, on his widely read Election Law Blog. Hasen wrote a brief on the side of challengers to the law. Hasen adds that if laws like Indiana’s must now be challenged “as applied,” that is “going to make it tough for a lot of plaintiffs who are burdened” to make their case. In dissent, Justice David Souter, joined by Justice Ruth Bader Ginsburg, said the law “threatens to impose nontrivial burdens on the voting right of tens of thousands of the state’s citizens.” And because that burden falls disproportionately on the poor and the elderly, Souter said the Indiana law is akin to the poll tax the high court struck down 42 years ago. Justice Stephen Breyer also wrote a dissent, acknowledging the state’s interest in preventing voter fraud, but he pointed to laws passed by Florida and Georgia that are less restrictive, allowing a wider variety of documents to be used to prove identification. Kathryn Kolbert, president of the liberal People For the American Way Foundation, sharply criticized the ruling in a statement. “The Justices should clear the path to the ballot box for voters, not help block the way,” Kolbert wrote. “Voter ID laws are intended to suppress voter turnout.”
Tony Mauro can be contacted at [email protected].

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