The Supreme Court upheld Indiana’s voter identification law on Monday, concluding in a splintered decision that the challengers failed to prove that the law’s photo ID requirement placed an unconstitutional burden on the right to vote.
The 6-3 ruling kept the door open to future lawsuits that provided more evidence. But this theoretical possibility was small comfort to the dissenters or to critics of voter ID laws, who predicted that a more likely outcome than successful lawsuits would be the spread of measures that would keep some legitimate would-be voters from the polls.
Voting experts said the ruling was likely to complicate election administration, leading to both more litigation and more legislation, at least in states with Republican legislative majorities, but would probably have a limited impact on this year’s presidential voting.
The issue has been intensely partisan, with Republicans supporting increased identification requirements for voters and Democrats opposing them. In what the court described as the “lead opinion,” which was written by Justice John Paul Stevens and joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, the court acknowledged that the record of the case contained “no evidence” of the type of voter fraud the law was ostensibly devised to detect and deter, the attempt by a voter to cast a ballot in another person’s name.
But Stevens said that neither was there “any concrete evidence of the burden imposed on voters who now lack photo identification.” The “risk of voter fraud” was “real,” he said, and there was “no question about the legitimacy or importance of the state’s interest in counting only the votes of eligible voters.”
The three others who made up the majority, Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., said in an opinion by Scalia that the law was so obviously justified as “a generally applicable, nondiscriminatory voting regulation” that there was no basis for scrutinizing the record to assess the impact on any individual voters.
In a dissenting opinion, Justice David H. Souter said that for those on whom the law had an impact, the burden was “serious” and the state had failed to justify it. Like the Virginia poll tax the court struck down 42 years ago, he said, “the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise.” The other dissenters were justices Ruth Bader Ginsburg and Stephen G. Breyer.
Six states in addition to Indiana — Florida, Georgia, Hawaii, Louisiana, Michigan and South Dakota — now require voters to provide photo identification before casting a ballot. Bills are pending in two dozen other states, although they are not likely to pass this year in more than a handful, due to short legislative sessions and Democratic opposition.
The Indiana law, adopted by the Republican-controlled legislature in 2005 without a single Democratic vote, is regarded as the strictest in the country. It requires a voter to present a photograph as part of an unexpired document issued either by Indiana or the federal government, a requirement that in most cases can be satisfied only by a current driver’s license or a passport. The state’s motor vehicle agency provides a free photo ID card for people who do not drive, but obtaining it requires a “primary document” like an original birth certificate or a passport.