Printer Friendly

An examination of Crawford v. Marion County Election Board: photo identification requirements make the fundamental right to vote far from "picture perfect".

In Crawford v. Marion County Election Board, the United States Supreme Court upheld an Indiana statute requiring specific government-issued photo identification to vote in-person. The Court found that the interests advanced by the statute were sufficiently important to justify and legitimize the limitation imposed on voters. Thus, the Court decided that the burden of obtaining, possessing, and presenting photo identification to vote was not a severe limitation on voters, because it did not significantly increase the normal burdens of voting on a significant number of individuals. The decision in Crawford failed to recognize critical arguments that ultimately lead to the conclusion that the Voter ID Law in Indiana is unconstitutional and should be struck down. Whether assessed under the flexible standard as developed in previous ballot access cases or under the more appropriate strict scrutiny standard, the Voter ID Law should have failed to pass constitutional muster.

I. INTRODUCTION

"Voting is of the most fundamental significance under our constitutional structure." (1) While voting is not an absolute right, the government plays a large role in structuring voter regulations and elections. (2) In terms of practicality and efficiency, a degree of election regulation is expected and understood by society to ensure a fair and honest democratic process. (3) Article I, Section 4, Clause 1 of the United States Constitution provides that states may prescribe "[t]he Times, Places and Manner of holding Elections for Senators and Representatives," and retain the ability to regulate their own elections. (4) Voting is part and parcel of the right to participate in the electoral process, which assures the integrity of the democratic system. (5)

Cases involving the fundamental right to vote consistently present courts with difficult constitutional questions, as the right to vote is basic to the preservation of all rights. (6) The right to vote is fundamental because "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live." (7) All others basic rights become "illusory if the right to vote is undermined." (8) As voting preserves other basic civil rights, any alleged violation or limitation upon this right must be examined closely and carefully. (9) Courts are often asked to consider the extent to which voter identification laws may impose burdens while still passing constitutional muster. (10) Each state has only a limited power to impose restrictions or qualifications on the right to vote. (11) "Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process." (12) The Court has made clear that to introduce arbitrary factors such as location or economic status "as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor[.]" (13)

Crawford v. Marion County Election Board (14) involved the question of whether a voter identification statute passed in Indiana in 2005 violated the Fourteenth Amendment to the United States Constitution. (15) The statute required individuals wishing to vote in-person at the polls on election day to present a particular form of government-issued photo identification. (16) Plaintiffs claimed that the statute had the effect of making it difficult for some to vote and impossible for others and should, therefore, be invalidated. (17)

The trial court, the United States Court of Appeals for the Seventh Circuit, and the United States Supreme Court all held that the legislation was valid and constitutional. (18) In a dissenting opinion authored by Justice David Souter and joined by Justice Ruth Bader Ginsburg, (19) however, the Voter ID Law was thought to be unconstitutional as the State's proposed interests did not justify the unreasonable burdens placed on voters. (20)

Part II of this note will discuss the facts and evidence presented to the United States Supreme Court in Crawford. (21) Part III will discuss voting rights history within Congress and the Court, the body of case precedent applicable to Crawford, and the detailed requirements and changes brought forth by the Voter ID Law. (22) Finally, Part IV will provide an analysis arguing that the majority of the Court mistakenly held that the Voter ID Law was constitutional. (23)

II. FACTS AND PROCEDURE

A. THE CONTESTED LAW

On July 1, 2005, the Indiana legislature enacted a new election law requiring for the first time "proof of identification" in order to vote. (24) Referred to as either the "Voter ID Law" or "SEA 483," (25) this new law required that individuals seeking to vote in-person must present current photo identification, issued by either the State of Indiana or by the United States, most likely in the form of a driver's license or an identification card issued by the Bureau of Motor Vehicles. (26) This new piece of legislation was applicable solely to in-person voting at both primary and general elections. (27)

The Voter ID Law did contain limited exceptions. (28) If a person lived in a state-licensed facility, such as a nursing home, and voted in that facility, then proof of identification was not necessary. (29) Certain groups of individuals, such as indigent voters, citizens who had religious objections to being photographed, or those individuals that did not present proof of identification at the precinct, had the opportunity to cast a provisional ballot. (30) To have a provisional ballot counted, the voter was required to appear before the circuit court clerk or county election board within ten days of the election. (31) Upon appearing before the clerk or election board, a voter needed to produce the required proof of identification and effectuate an affidavit to prove they were the same individual who voted previously through the provisional ballot. (32) If unable to do so, the voter needed to complete an affidavit confirming that the voter had cast a provisional ballot and was either indigent or had some religious objection to having an individual photograph taken. (33) In conjunction with the enactment of the Voter ID Law in 2005, the Indiana Legislature also advised the Bureau of Motor Vehicles to remove all existing fees placed on acquiring state-issued photo identification for individuals without a driver's license but who were at least eighteen years of age. (34)

Before the enactment of this statute, any individual who wanted to vote merely had to sign in at the local polling location. (35) The only exception to this general rule arose under a specific provision of the Help America Vote Act of 2002 (HAVA), (36) which provided that a voter who had registered by mail and was voting for the first time in a federal election was required to meet certain criteria for identification purposes. (37) When the necessary documentation was provided with a registration application and the information matched existing state records, the individual who registered to vote by mail would not need to present any identification on election day. (38)

Generally, an individual voting by absentee ballot did not need to produce proof of identification for a vote to be counted under the Voter ID Law. (39) Not everyone in Indiana was allowed to submit an absentee ballot; state law restricted that right to voters who had legitimate reasons as to why they could not be physically present at the polls on election day. (40) The absentee voter was required to sign an affidavit on the envelope containing the absentee ballot to verify the voter's identity. (41) That signature would be compared to the one on file from the voter's registration. (42)

In contrast, under the Voter ID law, a person who wished to vote would be asked to present a state or federally issued current photo identification, most commonly a driver's license or identification card issued by the Bureau of Motor Vehicles. (43) Plaintiffs claimed that going to the Bureau of Motor Vehicles and requesting a driver's license or identification card was a considerable process. (44) An applicant seeking one of these forms of identification needed to personally appear at a branch office and provide additional forms of identification. (45) To obtain a first time driver's license or identification card (46) the applicant provided "either: one primary document, one secondary document, and one proof of Indiana residency requirement or two primary documents and one proof of Indiana residency." (47)

A primary document was used to confirm the identity, date of birth, and citizenship of an applicant. (48) Qualifying primary documents included a passport, a U.S. military or merchant marine photo identification, a United States Birth Certificate with a stamp or seal, or "documents showing that the person was born abroad as an American citizen or is a naturalized citizen." (49) A variety of documents qualified as secondary documents and ranged from bank statements and insurance cards to school report cards. (50)

Furthermore, to provide Indiana proof of residency, the applicant had to produce some verification of a residential address, excluding post office box mailing addresses. (51) The identification card and driver's license cost ten dollars and fourteen dollars respectively. (52) The Voter ID Law provided that anyone without a valid driver's license must be issued a complimentary identification card from the Bureau of Motor Vehicles. (53) Plaintiffs claimed, however, that there were still obstacles for individuals seeking identification to overcome. (54)

All those born in Indiana could obtain a birth certificate from either the state or county Department of Health. (55) These birth certificates were not free. (56) A statutory amendment in 2003 allowed the Indiana Department of Health to begin charging a fee of ten dollars for conducting a birth certificate search. (57) The local health departments had implemented fees for records that were not to exceed the cost of the services provided. (58) To obtain the birth certificate, the Indiana Department of Health allowed individuals to present a variety of "nonphoto identification documents." (59)

B. THE PLAINTIFFS

Crawford was a consolidated matter involving two sets of plaintiffs. (60) One group of plaintiffs, the "Democrats," consisted of the Indiana Democratic Party and the Marion County Democratic Central Committee. (61) The second group of plaintiffs contained two elected public officials, State Representative William Crawford and Trustee Joseph Simpson and many nonprofit organizations. (62) This second set of plaintiffs was referred to as the "Organization Plaintiffs," or the "ICLU Plaintiffs" because the Indiana Civil Liberties Union represented all involved. (63)

Based on the Second Amended Complaint, the Democrats were self-proclaimed political organizations formed for the purpose of electing Democratic candidates to office in Marion County and throughout Indiana. (64) Originally, the Democrats identified nine individuals who were "associated with the Democratic Party" and would be injured by the enforcement of the Voter ID Law. (65) A supplemental filing named three more citizens as additional Democratic Party, members who would be injured by the new law. (66) These "Named Individuals" (67) submitted post card surveys to Marion County poll workers, and based on the responses in the surveys, these individuals were deemed to be injured citizens for purposes of contesting the Voter ID Law. (68)

Representative William Crawford, (69) although not directly affected by the Voter ID Law because he possessed the necessary photo identification, claimed that the law negatively affected his constituency. (70) Trustee Joseph Simpson, who had served for over twelve years as a Washington Township Trustee and had presided as an elected precinct committee-person, also had a driver's license from the Bureau of Motor Vehicles. (71) However, Trustee Simpson shared concerns similar to those of Rep. Crawford. (72) Several nonprofit organizations joined Rep. Crawford and Trustee Simpson as plaintiffs. (73)

C. THE DEFENDANTS

There were two sets of defendants in this case. (74) One group was the Marion County Election Board. (75) The second group consisted of "Todd Rokita, in his official capacity as Indiana Secretary of State," along with "J. Bradley King and Kristi Robertson, in their official capacities as Co-Directors of the Indiana Election Division." (76)

The Marion County Election Board, the body responsible for the supervision and management of elections in Marion County, was a key player in the implementation of the Voter ID Law. (77) The Marion County Election Board was comprised of the Marion County Clerk, who acted as the election administrator to Marion County, along with two other individuals. (78) The Indiana Election Division co-directors King and Robertson administered "advice and instruction to county election officials and publishe[d] information and forms for use in Indiana elections." (79) As the Secretary of State, Rokita served as Indiana's chief election official. (80) He "perform[ed] all ministerial duties related to the administration of elections by the state." (81)

D. IMPACT OF THE VOTER ID LAW

The plaintiffs and defendants disagreed over the extent to which the new statute impaired current or potential voters. (82) The plaintiffs identified many groups of individuals that would "be particularly disadvantaged by the photo identification requirements" imposed by the Voter ID Law. (83) Professor Marjorie Hershey of Indiana University provided a report indicating that as the Voter ID Law increased the cost of voting through the creation of additional requirements, voter turnout was likely to decrease, especially among voters with lower socioeconomic status. (84) Professor Hershey suggested that certain groups of individuals would be affected more severely in terms of the additional time, transportation, fees, and obtaining all of the necessary information required to satisfy the standards imposed by the Voter ID Law. (85)

The plaintiffs cited both formal and informal surveys that supported Hershey's conclusions. (86) The Indiana Coalition on Housing and Homeless Issues, one of the Indiana Civil Liberties Union Organizational Plaintiffs, stated the difficulties homeless individuals had in meeting the requirements of the Voter ID Law as follows:
   even if they present[ed] themselves to vote and [we]re challenged
   under the new identification law and [we]re informed that in order
   for their ballot to count they must go get identification and then
   go to the Clerk's office, or even if they were to be told that they
   just had to go to the Clerk's office, homeless persons probably
   w[ould] not do so because of transportation difficulties. (87)


Most, if not all, homeless individuals would rather avoid a confrontational situation than cast a vote, and anything increasing the difficulty in the voting process would strongly decrease the likelihood that homeless individuals would vote. (88)

Surveys submitted from elderly support organizations explained that many citizens over the age of 60 did not have a valid driver's license or identification card. (89) The executive director of plaintiff Indianapolis Resource Center for Independent Living explained that people with disabilities commonly did not have any form of identification and that blind or visually impaired individuals often did not know if their form of identification was valid. (90) The plaintiffs also produced poll observers who testified that potential voters in poor or minority communities were so intimidated by the prospect of voting challenges that they would leave the polls or not vote rather than risk a challenge. (91)

The Democrat plaintiffs also presented a report prepared by expert, Kimball W. Brace. (92) The report stated that "as many as 141,000 registered voters in Marion County, and up to 989,000 registered voters in the State of Indiana" did not possess a Bureau of Motor Vehicles issued license or identification card at the time of the enactment of the Voter ID Law. (93) This report further stated "that registered voters who reside[d] in census block groups with a median household income of less than $15,000 [we]re more than twice as likely not to possess photo identifications as [we]re registered voters who reside[d] in census block groups with a median household income of more than $55,000." (94)

E. THE LAWSUIT

The Indiana Democratic Party and the Marion County Democratic Central Committee, frustrated by the enactment of the Voter ID Law, expressed their dissatisfaction by filing suit in the Federal District Court for the Southern District of Indiana. (95) The plaintiffs sought a declaratory judgment invalidating the Voter ID Law and enjoining its enforcement. (96) A second suit requesting the same result was initiated on behalf of Rep. Crawford, Trustee Simpson, and a variety of nonprofit organizations. (97) These two suits were consolidated and the State of Indiana intervened to defend the constitutionality of the statute. (98) The complaints from each suit alleged:
   that the new law substantially burden[ed] the right to vote in
   violation of the Fourteenth Amendment; that it [wa]s neither a
   necessary nor appropriate method of avoiding election fraud; and
   that it w[ould] arbitrarily disfranchise qualified voters who d[id]
   not possess the required identification and w[ould] place an
   unjustified burden on those who [could not] readily obtain such
   identification. (99)


District Judge Barker granted defendants' motion for summary judgment. (100) Judge Barker found the plaintiffs had "not introduced evidence of a single, individual Indiana resident who w[ould] be unable to vote as a result of [the Voter ID Law] or who w[ould] have his or her fight to vote unduly burdened by its requirements." (101)

A divided panel of the Seventh Circuit Court of Appeals affirmed Judge Barker's decision. (102) In the absence of any plaintiffs who would actually be deterred from voting, the appellate court concluded that "the motivation for the suit [wa]s 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." (103)

Dissenting Judge Evans viewed the validation for the law as "hollow" and "a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic." (104) Judge Evans would have applied a stricter standard when analyzing the Voter ID Law, what he characterized as "close to 'strict scrutiny light.'" (105) In his dissenting opinion, Judge Evans opined that the Voter ID Law "impos[ed] an undue burden on a recognizable segment of potential eligible voters," which violated their rights under the First and Fourteenth Amendments to the United States Constitution. (106)

The question of what level of scrutiny courts should use when evaluating mandatory voter identification laws was still unanswered. (107) Four judges of the Seventh Circuit Court of Appeals voted to grant a petition for rehearing en banc, but the petition was ultimately denied. (108) The United States Supreme Court granted certiorari. (109) The Supreme Court ultimately affirmed the ruling of the District Court and the Court of Appeals, stating that the courts "correctly concluded that the evidence in the record [wa]s not sufficient to support a facial attack on the validity of the entire statute[.]" (110)

III. BACKGROUND

A. VOTING RIGHTS HISTORY

Progressive voting rights changes date to 1869, when the 40th Congress proposed the Fifteenth Amendment of the United States Constitution to the legislatures of the states. (111) Ratified in 1870, Section 1 of the Fifteenth Amendment provided, "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." (112) Soon after, Congress enacted the Enforcement Act of 1870, (113) which made it unlawful for public officers and private individuals to interfere with the right to vote. (114) Amended the next year, the Act "provide[d] for detailed federal supervision of the electoral process, from registration to the certification of returns." (115) As time progressed and zeal for racial equality diminished, so too did the quality of enforcement of the laws, and in 1894, a large portion of the Act was repealed. (116) What remained had very little impact on the revived civil rights movement in the 1960s. (117) The Court has subsequently been very protective of the right to vote. (118)

When Congress decided to enact the Voting Rights Act in 1965, it had a firm intention of ridding the country of any and all racial discrimination in voting. (119) The following year, the Supreme Court decided a pair of voting rights cases, South Carolina v. Katzenbach (120) and Katzenbach v. Morgan, (121) and applied the rational basis standard to the legislation. In South Carolina v. Katzenbach, certain provisions of the Act were challenged on the basis that they "exceed[ed] the powers of Confess and encroach[ed] on an area reserved to the States by the Constitution." (122) Applying rational basis, the Supreme Court upheld the provisions as an appropriate exercise of congressional power. (123)

In Katzenbach v. Morgan, the Court held that New York literacy tests that conflicted with the Voting Rights Act were unconstitutional. (124) The provision in question allowed individuals whose predominant language was not English to vote if they had successfully completed the sixth grade in an American school. (125) After a thorough analysis of the draftsmanship of Section 5 of the Fourteenth Amendment, the Court concluded that this provision of the Voting Rights Act was indeed a rationally related means to the legitimate interest of "the letter and spirit of the constitution." (126)

B. CASE PRECEDENT

Crawford v. Marion County Election Board is only the most recent in a long line of cases that have played an integral role in establishing voting rights law and election procedures throughout the years. (127) To understand the rhetoric and legal analysis of both the majority and dissenting opinions in Crawford, it is necessary to review the preceding voting rights cases and identify the doctrinal development they initiated.

1. Smith v. Allwright

Smith v. Allwright, (128) decided in 1944, involved a black citizen seeking relief after being denied the ability to cast a vote in the Democratic primary in Harris County, Texas. (129) Smith believed the refusal was based solely on his race. (130) Although the District Court denied the relief Smith sought, and the Circuit Court of Appeals affirmed, the United States Supreme Court granted a petition for certiorari. (131) The defendants argued that if the Texas Democratic Party, a voluntary and independent organization, opted to create a resolution that only permitted whites to vote in primary elections, it should have the right to refuse to allow black citizens the right to vote. (132) The defendants believed a primary election was a matter conducted by the independent political party rather than the government. (133)

The Court noted that "[t]he Fourteenth Amendment forbids a state from making or enforcing any law which abridges the privileges or immunities of citizens" and that the Fifteenth Amendment prohibited "any denial ... by a state of the right of citizens to vote" based on the color of their skin. (134) The Court further decided that the right to vote in a primary election is "secured by the Constitution" and cannot be infringed upon by political parties. (135) The judgment was ultimately reversed and the Court held in Smith's favor. (136) The Court stated that the privilege of being a member of a political party was of "no concern to a state." (137) When such a privilege became "the essential qualification for voting," however, the state made the action of the party the state's business. (138) The Court ultimately recognized the plenary power held by the federal government when state and national government conflict on voter qualifications policy. (139)

2. Harper v. Virginia State Board of Elections

In 1966, the problems in voting turned from race to wealth. (140) The issue in Harper v. Virginia State Board of Elections (141) was the imposition of a $1.50 poll tax as a precondition to voting. (142) Virginia residents brought suit to have the poll tax declared unconstitutional. (143) The Supreme Court concluded that the tax violated the Equal Protection Clause of the Fourteenth Amendment, which prohibited the states from fixing voter qualifications to a level of invidious discrimination. (144)

The Court in Harper stated that the act of voting was a "fundamental political right, because [it is] preservative of all rights." (145) The Court noted that any limitation on a fundamental right should be thoroughly scrutinized. (146) The Court analogized the poll tax in Harper to disproportionate representation in Reynolds v. Sims, and stated:
   [a] citizen, a qualified voter, is no more nor no less so because
   he lives in the city or on the farm. This is the clear and strong
   command of our Constitution's Equal Protection Clause. This is an
   essential part of the concept of a government of laws and not men.
   This is at the heart of Lincoln's vision of "government of the
   people, by the people, [and] for the people." The Equal Protection
   Clause demands no less than substantially equal state legislative
   representation for all citizens, of all places as well as of all
   races. (147)


The Court conveyed that its decision to reverse the poll tax in Virginia was not based on government policy, but rather what specifically was required under the Equal Protection Clause. (148) The Court stated, "[w]e have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined." (149) The Court, using the strict scrutiny standard, struck down Virginia's poll tax as unconstitutional finding that the Equal Protection Clause is violated when a fundamental right such as voting is tampered with by invidious discrimination. (150)

3. Anderson v. Celebrezze

In Anderson v. Celebrezze, (151) John Anderson, an independent candidate for President of the United States, had not met the filing deadline in Ohio and a variety of other states to have his name placed on the ballot in the general election in November of 1980. (152) Anderson and three voters brought an action in the United States District Court for the Southern District of Ohio, claiming the early filing deadline placed an unconstitutional burden on voting and associational rights. (153)

The District Court granted Anderson's motion for summary judgment based on violations of the First and Fourteenth Amendments and ordered his name be placed on the general election ballot. (154) The United States Supreme Court ultimately affirmed the district court's decision. (155) The Court stated, "that the March filing deadline place[d] a particular burden on an identifiable segment of Ohio's independent-minded voters." (156) Reviewing the burdens placed on the specified groups, the Court explained that not only was such a restriction a First Amendment violation, but it also infringed on the "diversity and competition" of the democratic process. (157) The Court demonstrated that the minimal interests offered by the state as justification for the early filing deadline were outweighed by the burdens placed on Ohio voters. (158) "[E]ven when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty." (159) "If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties." (160)

Viewing Anderson as a ballot access restriction case, (161) the Court relied on an Equal Protection Clause analysis. (162) Although Anderson implicates overlapping rights, the Court stated that whatever the voting or election scheme may be, a state's "regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions." (163) In an attempt to avoid a "litmus-paper test" evaluation, the Court proceeded in its analysis with a four-part test. (164) The test states:
   [A court] must first consider the character and magnitude of the
   asserted injury to the rights protected by the First and Fourteenth
   Amendments that the plaintiff seeks to vindicate. [The court] then
   must identify and evaluate the precise interests put forward by the
   State as justifications for the burden imposed by its rule. In
   passing judgment, the Court must not only determine the legitimacy
   and strength of each of those interests; it also must consider the
   extent to which those interests make it necessary to burden the
   plaintiff's rights. Only after weighing all these factors is the
   reviewing court in a position to decide whether the challenged
   provision is unconstitutional. (165)


The Anderson "flexible standard" (166) is used in cases involving constitutional challenges to provisions of a State's election laws. (167)

4. Burdick v. Takushi

In Burdick v. Takushi, (168) the plaintiff was a registered voter in Honolulu, Hawaii, and wanted a write-in voting (169) provision in the general and primary elections. (170) Upon discovering that no such provision existed, he filed suit claiming the prohibition on write-in voting unreasonably infringed upon his constitutional rights under the First and Fourteenth Amendments of the United States Constitution. (171) The United States District Court for the District of Hawaii agreed "that the ban on write-in voting violated [the] First Amendment right of expression and association...." (172) The matter jumped between the Hawaii Supreme Court and the Court of Appeals until the United States Supreme Court granted certiorari. (173)

The Supreme Court held that the flexible standard, (174) rather than the strict scrutiny standard, (175) would be the more appropriate standard of review in a matter involving a limited field of candidates from which voters may choose. (176) The Court stated that the "reasonable, nondiscriminatory restrictions" applied in Burdick did not limit access to the ballot so as to render the statute unconstitutional. (177) However, the Court also explained that Burdick was more aptly construed as a ballot access case subject to the flexible standard. (178) The Supreme Court upheld the denial of write-in voting, holding that the prohibition was reasonable, and therefore passed constitutional muster. (179) As no standard test was identified in Burdick to measure the severity of burdens imposed by state laws, the Court settled on the rationale from Harper and stated that a burden may "be justified by relevant and legitimate state interests 'sufficiently weighty to justify the limitation.'" (180)

Ultimately, certain cases involving election law, ballot access, and voting rights fall into different categories of standards of review. (181) Although the Court has discretion to utilize different standards of review, ballot access cases are generally analyzed under the flexible standard (182) while voting rights cases often fall under the rational basis or strict scrutiny analysis, depending on the level of discrimination. (183)

C. THE VOTER ID LAW

With the passage of the Voter ID Law, Indiana became home to the most onerous voter identification law in the country. (184) Few states had blanket voter identification requirements and none categorically required photo identification to vote before the enactment of HAVA in 2002. (185)

1. Indiana Election Law and Procedure

Article 2, Section 2 of the Indiana Constitution outlines the basic requirements for voting. (186) Voting requirements were explained as follows:

a) A citizen of the United States, who is at least eighteen (18) years of age and who has been a resident of a precinct thirty (30) days immediately preceding an election may vote in that precinct at the election.

b) A citizen may not be disenfranchised under subsection (a), if the citizen is entitled to vote in a precinct under subsection (c) or federal law.

c) The General Assembly may provide that a citizen who ceases to be a resident of a precinct before an election may vote in a precinct where the citizen previously resided if, on the date of the election, the citizen s name appears on the registration rolls for the precinct. (187)

Article 2, Section 14 permitted "the Indiana General Assembly to provide for registration of individuals otherwise entitled to vote." (188) Five local election officials preside at polling places on election day in Indiana. (189) Any disputes or discrepancies that arose on election day were to be resolved by the precinct election or poll board, which included the inspector and the judges. (190)

The Indiana Election Division served as a guidepost to county election officials by offering counsel as well as publishing information and forms for use in state elections. (191) While the Election Division and the Secretary of State had no authority to enforce election laws, they had commenced several programs to educate voters and poll workers about the Voter ID Law. (192) The Election Division served an advisory role to county election officials, whereas the county election board itself administered election proceedings. (193) It was permissible for the county election board to hold different positions and ideas than those of the State Election Division in terms of election laws and procedures. (194)

2. Voting by Absentee Ballot

A citizen seeking to vote via absentee ballot must satisfy a number of procedural requirements. (195) To vote by absentee ballot, a voter had to apply to the county election board for an official absentee ballot. (196) Indiana law permitted only certain voters to vote by absentee ballot. (197) When voting by absentee ballot, it was not necessary for a voter to provide identification unless the voter had registered to vote by mail and subsequently voted in a federal election; then the voter had to present identification under HAVA. (198)

3. The Challenge Process and The Provisional Ballot

Prior to the enactment of the Voter ID Law, a potential voter was required to sign the poll book on election day but was not required to show any type of identification after checking in with the clerk. (199) Upon signing the poll book, the voter's signature was compared to a photographic copy of their signature on file. (200) If a voter was suspected of falsifying their identity, the vote could be challenged by any member of the precinct election board or a political party challenger. (201) Felony charges and convictions were traditionally the consequence for a voter attempting to cast a fraudulent ballot. (202)

When voter fraud was suspected, a member of the precinct election board or clerk executed an affidavit under the penalty of perjury to challenge a voter. (203) If challenged, the voter filled out a counter-affidavit containing voter eligibility information. (204) Although the votes were counted, the affidavits would be sent to the local prosecuting attorney for further investigation. (205)

With the enactment of the Voter ID Law, a member of the precinct election board is required to "challenge the voter" if the voter failed to present the proper form of identification, (206) If a challenge occurs, the voter still fills out an affidavit but now casts a provisional ballot (207) that will only be counted if the voter "appear[s] before the circuit court clerk or the county election board by noon on the second Monday following the election to prove [their] identity." (208) Once the voter provides proper identification and a corroborating affidavit, the clerk would approve the provisional ballot, and it would then be processed and counted. (209)

Voters that truly lack identification on election day still have the opportunity to cast a provisional ballot. (210) The provisional vote is counted if the voter appears by noon on the second Monday following election day at the clerk of courts or county election board and submits an affidavit showing that the voter was the same individual who cast the provisional ballot on election day and either: (1) the person was indigent and was "unable to obtain proof of identification without payment of a fee[;]" or (2) the voter had a religious objection to being photographed. (211) If the election board invalidates a provisional ballot, the voter has the option of filing a petition for review in the local circuit court. (212) Thus, ultimate interpretation of the Voter ID Law lies in the hands of the Indiana Supreme Court. (213)

IV. ANALYSIS

All aspects of regulating the democratic process of voting are retained by the federal government, except for the three categories that may be regulated by the individual states: time, place, and manner. (214) Although states possess fundamental control of their electoral systems, the federal government retains the authority to ensure that all qualified voters have the opportunity to vote. (215) States possess the authority to enforce voting requirements such as citizenship, age, and residency. (216) Whatever problems have arisen in the voting arena, the solution is thought to lie within "a clear unified voice calling for serious election reform." (217)

Case precedent such as Smith v. Allwright, (218) South Carolina v. Katzenbach, (219) Katzenbach v. Morgan, (220) Harper v. Virginia State Board of Elections, (221) Anderson v. Celebrezze, (222) and Burdick v. Takushi (223) indicate that the Court seems to be taking the evolving stance that each voting rights or election law case is different and could potentially be subject to individualized measures of review. (224) If this is true, under the particular circumstances of Crawford v. Marion County Election Board, the Court should have applied strict scrutiny and found the Voter ID Law unconstitutional. (225) In the alternative, the Court should have applied the flexible standard and found that the State's interests did not justify the burden imposed on voters. (226)

A. THE STRICT SCRUTINY STANDARD

The regulation of voting and elections is a necessary occurrence for a fair and honest democratic process. (227) Each election provision impacts an individual's right to vote and to associate with others for political means, whether by regulating "the registration and qualification of voters, the selection and eligibility of candidates, or the voting process itself[.]" (228) The Supreme Court has held that "[t]he right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." (229) Consequently, "a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." (230) The function of the Court must then be to determine whether the challenged law seriously and unreasonably burdens the constitutionally protected right to vote. (231) "This Court has held that a State may not dilute a person's vote to give weight to other interests ... and a lesser rule could hardly be applicable to a complete denial of the vote." (232)

In a variety of modern cases involving constitutional rights, the Court has given minimal "deference to legislative judgments when reviewing legislative classifications ...." (233) In the 1960s and early 1970s, the Court often held that laws differentiating between individuals exercising fundamental constitutional rights, such as voting, would be subject to strict judicial scrutiny. (234) The Court further noted that such limitations would not be upheld unless the government proved that it was necessary for it to utilize the limitation in order to meet a compelling interest. (235) Presently, the Court does not always articulate a clear standard of review in fundamental rights cases, but utilizes the strict scrutiny standard when necessary. (236) Crawford involved a state statute that invidiously discriminated against certain individuals' fundamental right to vote, thus necessitating the application of the strict scrutiny standard. (237) A restriction would still qualify as invidious discrimination under the strict scrutiny standard if such a restriction was irrelevant to an individual's qualifications as a voter even if at first blush it would appear to be a rational restriction. (238)

The misstep by the Court in the analysis of Crawford rests primarily with a misreading of Burdick v. Takushi. (239) The Crawford Court incorrectly applied the Burdick standard to a voting rights case; Burdick should be controlling only in ballot access cases. (240) Burdick was a ballot access case about the range of candidates who may be on a ballot. (241) In Burdick, the Court concluded that Hawaii's ban on write-in voting (242) would be upheld because it imposed a minor burden on the right of voters in making political choices. (243) The Court, in reaching its decision, relied on the earlier ballot access case of Anderson v. Celebrezze, which stated, "the mere fact that a State's system creates barriers ... tending to limit the field of candidates from which voters might choose ... does not of itself compel close scrutiny." (244) The Burdick Court did not use the strict scrutiny standard, but recognized its existence by stating that when an individual's right to vote is "subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance." (245) Neither Burdick nor Anderson centered on what conditions a voter must satisfy in order to cast a legitimate vote. (246)

In Smith v. Allwright, the United States Supreme Court held that the exclusion of a single voter from a party's primary election on racial grounds violated the Fifteenth Amendment and the Court allowed that individual to pursue a claim for damages for the denial of the right to vote. (247) Under the rationale imposed by the majority in Crawford, the plaintiff in Smith would not find justice absent a showing of evidence that a significant number of voters had been burdened, regardless of the fact that clear evidence demonstrated that the individual plaintiff had his or her own constitutional rights violated. (248) As the Voter ID Law denied the fundamental right to vote to even one individual, the Court should have applied the strict scrutiny standard of review. (249)

The analysis in Crawford is more aptly compared to that of Harper v. Virginia State Board of Elections. (250) The Court in Harper found that the qualifications required for an individual to vote have absolutely no relation to the individual's economic status, whether wealthy or impoverished, nor to the individual's ability to pay a poll tax or any other tax. (251) The Court s voting rights precedent "demonstrate[d] that the Equal Protection Clause of the Fourteenth Amendment restrain[ed] the States from fixing voter qualifications which invidiously discriminate." (252) The potential costs associated with providing specific photo identification are comparable to the economic hurdles that the Court struck down as impermissibly discriminatory in Harper. (253)

The statute itself and the remedies it provides for individuals without photo identification disproportionately impact discrete populations such as the homeless, disabled, elderly, impoverished, racial minorities, and those living in urban areas. (254) In order to comport with the statute's requirements, an individual without photo identification who wishes to vote may give up time and money in venturing to the Bureau of Motor Vehicles to attempt to obtain the proper identification or in traveling to the county clerk to provide proof of identification after the election. (255) Although these travel costs and documentation costs are not directly tied to the ability to vote as was the poll tax, the Crawford Court failed to recognize that these costs have the same effect by discouraging people from voting. (256)

At least one state court has applied the Harper strict scrutiny analysis when considering the constitutionality of photo identification laws. (257) In Weinschenk v. State, (258) the Missouri Supreme Court held that election laws requiring voters to present photo identification for in-person voting were invalid. (259) The Missouri Supreme Court held that:
   Missouri election-law cases in which strict scrutiny was not
   applied simply recognize, as does this Court today, that reasonable
   regulation of the voting process and of registration procedures is
   necessary to protect the right to vote. So long as those
   regulations do not impose a heavy burden on the fight to vote, they
   will be upheld provided they are rationally related to a legitimate
   state interest. If the regulations place a heavy burden on the
   right to vote as here, our constitution requires that they be
   subject to strict scrutiny. (260)


Crawford involved the same burdens upon the fundamental right of voting as those that were recognized in Weinschenk. (261) Thus, the strict scrutiny standard was the appropriate standard to apply in Crawford, and the Voter ID Law should have failed under that analysis.

B. THE FLEXIBLE STANDARD

Whether it be a compelling interest under strict scrutiny, or a sufficiently weighty, precise interest under the flexible standard, the Court bears the task of identifying and evaluating the interests put forward by the State in a constitutional challenge. (262) Even if the Court applies the muddled flexible standard from Anderson and Burdick, (263) it should have struck down Indiana's Voter ID Law due to the lack of justifiable interests the State put forward. (264) In Anderson, the Court found the interests posed by the State insufficient to satisfy the standard and struck down Ohio's early filing deadline for independent candidates. (265)The same analysis should have yielded the same result in Craw ford. (266)

Indiana proffered four interests that it proposed as legitimate rationales for the Voter ID Law. (267) Justice Sourer, in dissent, opined that the interests put forth by the State as justification for the statute must "be shaved down to the precise aspects of claimed interests addressed by the law at issue." (268) Even assuming that the interests the statute advances meet a specific need, the Court should also consider "the extent to which [they] make it necessary to burden the plaintiff's rights." (269) Justice Souter contended that the first two State interests, modernizing election procedure and combating voter fraud, were more appropriately one weak concern. (270) He went on to explain that the latter two State interests, addressing the consequences of the State's bloated voter rolls and protecting public confidence in the integrity of the electoral process, actually decreased the strength of the State's case. (271)

1. Modernizing Election Procedures and Combating Voter Fraud

The State claimed, and the majority of the Supreme Court accepted, that new federal statutes explained the need to enact the Voter ID Law in Indiana in an effort to modernize election procedure. (272) The Indiana statute is more aptly characterized as an effort to attain practical political objectives rather than an effort to modernize procedure. (273) Indiana cannot invoke "the slogan of 'election modernization'" as a rationale for the statute without explaining why it is necessary in light of the burden it places on voters' rights. (274)

Indiana argued that the Voter ID Law was implemented to combat voter fraud. (275) Ending voter fraud was without a doubt an important government interest; (276) however, the only potential problem cured by the Voter ID Law was in-person voter fraud, which was not a problem in Indiana. (277) Decreasing the instances of in-person voter fraud would be a valid interest, but, as both the majority and dissent noted, the State of Indiana never presented a scintilla of evidence of such an occurrence ever happening in Indiana. (278) The lack of fraud was further corroborated by numerous experienced poll workers in Indiana who testified that they had never witnessed attempted voter impersonation at the polls. (279) The scarcity of in-person voter fraud throughout the country should have added suspicion to the curing effect the Voter ID Law would have on such a non-prevalent issue. (280) Indiana argued that the lack of evidence of in-person voter fraud was because of the inherent difficulty in detecting such fraud. (281) Justice Souter, however, pointed out in his dissent:
   this is like saying the 'man who wasn't there' is hard to spot, and
   to know whether difficulty in detection accounts for the lack of
   evidence one at least has to ask whether in-person voter
   impersonation is (or would be) relatively harder to ferret out than
   other kinds of fraud (e.g., by absentee ballot) which the State has
   had no trouble documenting. (282)


Although the Voter ID Law was designed to combat in-person voter fraud, this argument was without merit because individual in-person voter fraud was unlikely to occur and large enterprise in-person voter fraud was difficult to conceal. (283)

The antifraud justification became more suspect when the State immediately executed the photo identification requirement of the Voter ID Law without explanation, rather than allowing for a phase-in period. (284) Such a transitional period was precisely the suggestion of the Commission on Federal Election Reform, anchored by former President Jimmy Carter and former Secretary of State James A. Baker III. (285) The Carter-Baker Report went on to explain that the state would need to go to all lengths to ensure that voters were conveniently able to obtain the necessary

identification. (286) Former President Carter and former Secretary of State Baker explained the rationale behind this recommendation in detail:
   we are concerned about the approximately twelve percent of citizens
   who lack a driver's license. So we proposed that states finally
   assume the responsibility to seek out citizens to both register
   voters and provide them with free [identification cards] that meet
   federal standards. States should open new offices, use social
   service agencies and deploy mobile offices to register voters. By
   connecting [identifications] to registration, voting participation
   will be expanded. (287)


Finally, whatever interest the State of Indiana may have had in combating in-person voter fraud in no way justified requiring impoverished individuals, religious objectors, or those without a license, to travel to the county seat within ten days after the election, simply to justify their previously valid vote. (288)

2. Addressing the Consequences of the State's Bloated Voter Rolls

The majority of the United States Supreme Court agreed with the State of Indiana that inflated voter rolls further supported the implementation of the Voter ID Law. (289) The Court's reliance was questionable considering the federal government filed a complaint against the State of Indiana, alleging:
   Indiana has failed to conduct a general program that makes a
   reasonable effort to identify and remove ineligible voters from the
   State's registration list; has failed to remove such ineligible
   voters; and has failed to engage in oversight actions sufficient to
   ensure that local election jurisdictions identify and remove such
   ineligible voters. (290)


Although the federal government and Indiana have settled that matter, and the State was ordered to fulfill its list-maintenance obligations under Section 8 of the National Voter Registration Act of 1993, (291) it seemed puzzling to use such reasoning to justify placing burdens on the fight to vote. Justice Souter summarized this point succinctly in his dissent by explaining that, "if it [wa]s true that the State's fear of in-person voter impersonation fraud ar[ose] from its bloated voter checklist, the answer to the problem [wa]s in the State's own hands." (292) It would be a much wiser use of the State's resources to cure the problem of bloated voter rolls itself, than to attempt to cure a symptom of the problem, alleged impersonation, through unnecessary and burdensome legislation. (293)

3. Protecting Public Confidence in the Integrity of the Electoral Process

Indiana presented evidence indicating that individual voters were concerned about election fraud and allegedly supported photo identification requirements. (294) The defendants also concluded that the Commission on Federal Election Reform's Carter-Baker Report further substantiated these findings. (295) In that report, the authors stated that the perception or idea of fraud "contribute[d] to low confidence in the system." (296)

The citizens of Indiana did not doubt the electoral process, but more appropriately lacked confidence in the mismanaged and inflated voter rolls. (297) Perhaps the proper resolution lies not within placing additional burdens on the right to vote, but rather placing greater emphasis on ending negligence within state administration. (298) Absent evidence of in-person voter fraud in the State of Indiana and throughout the country, it is highly doubtful that such fraud is decreasing general faith in the voting process. (299)

After the Supreme Court's decision in Crawford, an action by the League of Women Voters of Indiana, Inc. was filed in the Indiana Court of Appeals challenging the Voter ID Law's constitutionality under the Indiana State Constitution. (300) The Indiana Court of Appeals held, inter alia, that the provisions within the statute that involved disparate treatment to in-person and mail-in voters could not be removed from the rest of the statute without violating its primary objectives, and therefore, the entire law was void. (301) While the state courts of Indiana may have helped to assist the problem within the state, the challenges in voting rights cases remains prevalent throughout the United States and is a problem likely to resurface before the Court. Ideally, if more states agreed to work with the federal government and take the recommendations of the Carter-Baker Report, (302) then states, individual voters, and the Supreme Court could potentially avoid the challenges discussed within this article.

V. CONCLUSION

In Crawford v. Marion County Election Board, the United States Supreme Court erred when it upheld the Voter ID Law, which imposed severe burdensome limitations on individuals wishing to vote. The Court should have held that the burden of obtaining, possessing, and presenting photo identification to vote was a severe limitation on voters, because it significantly increased the normal burdens of voting on a number of individuals.

The Court failed to recognize that a strict scrutiny analysis was the appropriate standard for review due to the invidious discrimination imposed on a constitutionally protected fundamental right. Further, even under the flexible standard that the Court utilized, the interests posed as justifications for the enactment of the statute were not actually cured by the institution of the statute; thus, the Voter ID Law should have failed even under the flexible standard. The decision in Crawford failed to recognize critical arguments that ultimately lead to the conclusion that the Voter ID Law in Indiana is unconstitutional and should be struck down.

(1.) Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)).

(2.) Id.

(3.) Id. (citing Storer v. Brown, 415 U.S. 724, 730 (1974)).

(4.) U.S. CONST. art. I, [section] 4, cl. 1. See Burdick, 504 U.S. at 433 (citing Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986); Sugarman v. Dougall, 413 U.S. 634 (1973)).

(5.) Burdick, 504 U.S. at 441 (citing Anderson v. Celebrezze, 460 U.S. 780, 788 (1983); Storer v. Brown, 415 U.S. 724, 730 (1974)).

(6.) See Harper v. Va. State Bd. of Election, 383 U.S. 663,667 (1966) (internal citations omitted). See Kramer, 395 U.S. at 627-28. The standard involved in the fundamental right to vote continues to be an unsolved question:
   Accordingly, when we are reviewing statutes which deny some
   residents the right to vote, the general presumption of
   constitutionally afforded state statutes and the traditional
   approval given state classifications if the Court can conceive of a
   'rational basis' for the distinctions made are not applicable. The
   presumption of constitutionality and the approval given 'rational'
   classifications in other types of enactments are based on an
   assumption that the institutions of state government are structured
   so as to represent fairly all the people. However, when the
   challenge to the statute is in effect a challenge to this basic
   assumption, the assumption can no longer serve as the basis for
   presuming constitutionality.


Id. (internal citations omitted).

(7.) Wesberry v. Sanders, 376 U.S. 1, 17 (1964).

(8.) Id.

(9.) Harper, 383 U.S. at 667 (citing Reynolds v. Sims, 377 U.S. 533,561-62 (1964)).

(10.) SaraN. D'Agostini, Voter Identification Laws: The Past, The Present, and The Unpredictable Future, 86 U. DET. MERCY L. REV. 579, 579 (2009). The argument is summarized as follows:
   In the last decade, voter identification regulations have divided
   state legislatures and courts alike. The center of debate is
   whether a photo identification requirement restricts legitimate
   voters from exercising their constitutionally protected right to
   equally participate in elections. Although the United States
   Supreme Court has facially reviewed the toughest form of photo
   identification laws, the constitutionality of many, if not all,
   remains at issue. Id.


(11.) Harper, 383 U.S. at 668 (finding that voter qualifications cannot be regulated based upon economic status). See Reynolds v. Sims, 377 U.S. 533 (1964) (holding that the right to vote cannot be infringed upon due to the voter's residential location).

(12.) Harper, 383 U.S. at 668.

(13.) Id.

(14.) 128 S.Ct. 1610 (2008).

(15.) Id. at 1614.

(16.) Id. at 1613.

(17.) Brief of Petitioners on Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit at 7, Crawford v. Marion County Election Bd., No. 07-21 (7th Cir. Nov. 5, 2007) [hereinafter Brief for the Petitioners].

(18.) Crawford v. Marion County Election Bd., 128 S.Ct. 1610 (2008) [hereinafter Crawford II]; Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir. 2007) [hereinafter Crawford I]; Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775 (S.D. Ind. 2006).

(19.) Crawford 11, 128 S.Ct. at 1627 (Souter & Ginsburg, JJ., dissenting). An additional dissenting opinion was written by Justice Breyer but will not be discussed at length. Id. at 1643 (Breyer, J., dissenting).

(20.) Id. at 1643 (Souter & Ginsburg, JJ., dissenting). "[T]he law impose[d] an unreasonable and irrelevant burden on voters who [we]re poor and old." Id. at 1643 (Souter & Ginsburg, JJ., dissenting).

(21.) See infra Part II.

(22.) See infra Part III.

(23.) See infra Part IV.

(24.) Crawford II, 128 S.Ct. at 1613-14.

(25.) Id. at 1613.

(26.) Id. See IND. CODE ANN. [section] 3-5-2-40.5 (LexisNexis Supp. 2009). The statute provides: "Proof of identification" refers to 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 to the individual 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 general election.

(4) The document was issued by the United States or the state of Indiana.

Id.

(27.) Crawford II, 128 S.Ct. at 1613. Absentee ballots submitted via mail were not affected, Id.

(28.) Id. at 1613-14.

(29.) Id. at 1613. See IND. CODE ANN. [section] 3-11-8-25.1(e) (LexisNexis Supp. 2009).

(30.) Crawford II, 128 S.Ct. at 1613-14. See IND. CODE ANN. [section] 3-11-8.25.1(c), (d) (LexisNexis Supp. 2009).

(31.) IND. CODE ANN. [section][section] 3-11.7-5-1, 3-11.7-5-2.5 (LexisNexis Supp. 2009); see Crawford II, 128 S.Ct. at 1613-14.

(32.) IND. CODE ANN. [section] 3-11.7-5-2.5(b) (LexisNexis Supp. 2009); see Crawford II, 128 S.Ct. at 1614.

(33.) IND. CODE ANN. [section][section] 3-11.7-5-1, 3-11.7-5-2.5 (LexisNexis Supp. 2009); Crawford H, 128 S.Ct. at 1613-14.

(34.) Crawford II, 128 S.Ct. at 1614.

(35.) Brief for the Petitioners, supra note 17, at 8. A photographic copy of the individual's signature was kept on file when a voter registered and could be used for comparison purposes. Id.

(36.) Help America Vote Act of 2002, 42 U.S.C. [section] 15483 (2006) [hereinafter HAVA]. "The Act was a broad election reform package that reflected a series of compromises between Democrats largely interested in access and Republicans focused on fraud prevention." Spencer Overton, Voter Identification, 105 MICH. L. REV. 631, 639 (2007). "[HAVA] enhanced access by providing provisional ballots to registered voters whose names did not appear on the rolls, but the law also required all firsttime voters who registered by mail to provide photo or nonphoto documentary identification (such as a utility bill or bank statement) when they arrived at the polls." Id.

(37.) HAVA, supra note 36, [section] 15483(b); Brief for the Petitioners, supra note 17, at 8 n.l. The Commission on Federal Election Reform described the legislative process as follows:
   Under this compromise [regarding the partisan concern over ballot
   access], described by its sponsors as making it "easier to vote and
   harder to cheat," HAVA sought to lower barriers to voting while
   establishing somewhat tighter controls on registration and voter
   identification. Consequently, HAVA's mandates focused on four major
   requirements: (1) statewide computerized voter lists; (2) voter ID
   for individuals who register by mail but do not provide it when
   registering; (3) provisional ballots for voters whose names are
   missing from the registration rolls on Election Day; and (4)
   measures to make voting more accessible for voters with
   disabilities.


COMMISSION ON FEDERAL ELECTION REFORM, BUILDING CONFIDENCE IN U.S. ELECTIONS [section] 1.1 (2005).

(38.) HAVA, supra note 36, [section] 15483(b); see Brief for the Petitioners, supra note 17, at 8 n.1.

(39.) Brief for the Petitioners, supra note 17, at 21-22.

(40.) IND. CODE ANN. [section] 3-11-10-24(a)(1)-(11) (LexisNexis 2002 & Supp. 2009); Brief for the Petitioners, supra note 17, at 23. Examples of valid reasons for absentee ballots included: having a specific and reasonable expectation of being out of the county during the time polls were open; working in an election capacity; being disabled, ill, elderly or caring for a disabled person; being scheduled to work the entire time the polls are open; precluded from voting due to religious objections; having confidential addresses pursuant to Indiana law; or being eligible to vote in the precinct of a former residence, Id.

(41.) IND. CODE ANN. [section] 3-11-4-21 (LexisNexis 2002 & Supp. 2009).

(42.) Brief for the Petitioners, supra note 17, at 22.

(43.) Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 789 (S.D.Ind. 2006). Federal identification included passports or military identification. Id. University-issued identification, if an expiration date was listed, was one example of a state-issued identification. Id. See IND. CODE ANN. [section] 3-5-2-40.5 (LexisNexis Supp. 2009).

(44.) Rokita, 458 F. Supp. 2d at 792.

(45.) Id. at 789.

(46.) Rokita, 458 F. Supp. 2d at 790. Additionally, if the applicant's license or identification card was not current, or the license or card had been expired for ten years, that applicant was considered a first-time applicant and needed to produce the required documentation. Id. at n. 15.

(47.) Id at 789-90. A social security number was also required for first-time license applicants. Id.

at 790 n. 16.

(48.) Id. at 790.

(49.) Id.

(50.) Id. at 790-91. Secondary documents include:
   Bank Statement; Certified Academic Transcript; Confirmation of
   Registration Letter from an Educational Institution; Court
   Documentation with Stamp or Seal; Foreign Consulate-Issued ID Card;
   Government-Issued License or ID Card; Hoosier RX Plan Card [with]
   imprinted name; Hoosier Works Card [with] imprinted name; Indiana
   County Pre-sentence Investigation Report with clerk stamp or seal;
   [Valid] Indiana gun permit; Indiana probation photo ID card;
   [Valid] Indiana professional/occupational license; Indiana [Bureau
   of Motor Vehicles] Title Application [with] [Bureau of Motor
   Vehicles] valid stamp; [Valid] Indiana [Bureau of Motor Vehicles]
   Title or Registration; Insurance Card; Letter from Probation
   Officer or Government Caseworker on letterhead stationary,
   certified with court or government stamp or seal with the
   applicant's name, and signature of the probation officer of
   caseworker; [Valid] Major Credit or Bank Card ([Only] [MasterCard],
   VISA, [American Express], and Discover); Original Out-of-State
   Driving Record; Out-of-State Driver License, Identification Card or
   Permit with photograph; [Computer generated] Pay Check Stub; Prison
   Release Documentation/Photo ID; School Report Card (dated within
   [twelve months]); School Photo ID Card; Selective Service
   Acknowledgement Card-SSS Form 3A; U.S. Divorce Decree certified by
   court of law with stamp or seal; U.S. Application of
   Marriage/Record of Marriage (Certified copy) (Must contain the
   stamped seal and be signed by clerk); U.S. District Court
   Pre-Sentence Investigation Report with clerk stamp or seal; U.S.
   Military Discharge or DD214 Separation papers; U.S. Veterans
   Universal Access ID card with photo; [and] [Federal or State] W-2
   Form of 1099 Federal tax form.


Id.

(51.) Id. at 791.

(52.) Id. After January 2006, a driver's license was valid for six years, while an identification card was only valid for four years. Id.

(53.) Id. See IND. CODE ANN. [section] 9-24-16-10 (LexisNexis 2004 & Supp. 2009).

(54.) Rokita, 458 F. Supp. 2d at 792.

(55.) Id. at 792.

(56.) Id.

(57.) Id. See IND. CODE ANN. [section][section] 16-37-1-11 (LexisNexis 1993 & Supp. 2009), 16-37-1-11.5 (LexisNexis 1993).

(58.) Rokita, 458 F. Supp. 2d at 792. See IND. CODE ANN. [section] 16-20-1-27 (LexisNexis 2008). "Fees vary among county departments of health from $2.00 to $10.00." Rokita, 458 F. Supp. 2d at 792. However, individuals born in other states often had to pay a greater fee for obtaining their birth certificate, Id. at n.19. For example, the cost of obtaining a certified birth certificate from Boston, Massachusetts was twenty-eight dollars. Id.

(59.) Rokita, 458 F. Supp. 2d at 792. Those documents included: "a Social Security card, a credit card, a bank card, a motor vehicle registration, a housing lease, a military identification, an Indiana professional license, an original employment application, and a voter registration card." Id.

(60.) See generally Crawford v. Marion County Election Bd., 128 S.Ct. 1610 (2008).

(61.) Rokita, 458 F. Supp. 2d at 796.

(62.) Id. The nonprofit groups included: "Concerned Clergy of Indianapolis, Indianapolis Resource Center for Independent Living, Indiana Coalition of Housing and Homeless Issues, Indianapolis Branch of the NAACP, and United Senior Action of Indiana." Id.

(63.) Id.

(64.) Id. at 796-97. The Chairperson of the Marion County Democratic Committee testified that the Voter ID Law would distract the Marion County Democratic Central Committee from its primary focus and limit the organization's ability to perform its main functions, which were (1) getting candidates elected to office, and (2) getting voters to the polls. Id. at 797. After enactment of the Voter ID Law, the Marion County Democratic Central Committee would need to place an emphasis on informing voters of the new photo identification requirements when voting and ensuring that the Voter ID Law was not selectively enforced. Id. While the Democrats considered any voter in Indiana who cast a vote for a Democrat in a primary election to be associated with the Democratic Party, the group did not necessarily consider those voters to be members. See id. "[I]n Indiana, voters d[id] not 'register' as members of a political party but express[ed] their allegiance to a political party by asking for that party's ballot at the primary election, attending party meetings or events, contributing to the party's candidates and casting votes for candidates in the general election, among other things." Id.

(65.) Id Originally, the nine individuals, referred to as the "Named Individuals," were listed as follows: David Harrison, a "75 year-old military veteran," not only lacked any sort of license, identification, or a birth certificate, he also lacked the funds to obtain such documents. Id. at 798. Constance Andrews was an employee for the Bureau of Motor Vehicles and often worked as a Judge for the Democratic Party at the polls on election day, whose survey indicated she did not possess a driver's license or any other proper identification. Id. at 797-98. Barbara Smith, 71, a frequent Democratic Judge on election days, did not have a certified birth certificate nor a "driver's license or state-issued photo identification card" but did own a federally-issued photo identification card as a retiree; such card did not bare an expiration date, thus not qualifying under the Voter ID Law as a proper form of photo identification. Id. at 798-99. Imogene Chapman, 84, had worked at election polls for fifteen years but had no state or federally-issued photo identification or driver's license; she believed the Voter ID Law "[wa]s an infringement of my [c]ivil [r]ight[ ] to vote." Id. at 798. Ernest Pruden, a 74 year-old previous poll-worker, did not qualify as having the required documentation to vote under the Voter ID Law because he did not possess a birth certificate, as he was born in North Carolina, and he was unsure of the means of obtaining a certified copy. Id. Helen Wright, who turned 65-years-old in 2006, unfortunately suffered a heart attack and was unable to be deposed. Id. at 799. Lois Holland, 69, an active Democratic Poll Clerk, had no photo identification; the only personal documentation she had was the birth certificate that was copied from her family Bible. Id. at 798. Robert G. Yancey worked at the polls for the Democratic Party and had a non-license photo-identification card that was issued by the Bureau of Motor Vehicles that was valid until 2009. Id. at 799. The final individual, Bettie L. Weiss died and no information was obtainable. Id. at 797.

(66.) Id. No information was submitted to the district court regarding Christina Bohlander or Corinne Collins. Id. Thelma Ruth Hunter, an 85-year-old supporter of the Democratic Party, knew that a certificate of her birth did not exist; although Thelma had ventured to acquire a "delayed certificate of birth" from Tennessee, her attempts had been unsuccessful. Id. at 798.

(67.) See supra note 66 for a description of the "Named Individuals."

(68.) Rokita, 458 F. Supp. 2d at 797. Due to death and lack of information provided to the Court, only nine individuals presented evidence to the district court. Id.

(69.) Representative Crawford was a representative of House District 98 in the Indiana House of Representatives. Id. at 799.

(70.) Id. A number of citizens had informed the Representative that they did not meet the necessary requirements to be able to vote under the new law. Id. Identifying the Voter ID Law as an obstacle to poor people wishing to vote, Rep. Crawford was concerned about garnering enough votes to prevail in his own candidacy. Id. Rep. Crawford considered the Voter ID Law to be "patently offensive[.]" Id.

(71.) Id.

(72.) Id. Trustee Simpson's concern was that many constituents who had voted for him in the past would not possess the necessary requirements under the Voter ID Law to be able to continue voting. Id. Trustee Simpson was not only upset at the potential loss of votes for his personal campaign, but also feared voters would accept the Voter ID Law and quit voting if they did not have the necessary identification. Id. Additionally, the Trustee had concerns that the number of voter challenges would increase exponentially with the implementation of the new law. Id.

(73.) Id. at 796. The following nonprofit organizations joined as Plaintiffs: Concerned Clergy of Indianapolis, Indianapolis Resource Center for Independent Living, Indiana Coalition on Housing and Homeless issues, Indianapolis Branch of the NAACP, and United Senior Action of Indiana. Id. The Concerned Clergy of Indianapolis was "dedicated to advancing social justice issues, particularly issues affecting the poor in Indianapolis." Id. at 799. Members of the Concerned Clergy of Indianapolis stated they would be discouraged from voting under the Voter ID Law. Id. The group believed it would be forced to allocate its limited financial resources to assisting its members in obtaining birth certificates to be able to vote and that the law would weaken the political clout of minorities and poor people. Id. The Indianapolis Resource Center for Independent Living's purpose was to effectively serve and better the lives of people with disabilities. Id. at 800. Many of the members of the Indianapolis Resource Center for Independent Living did not have valid photo identification and would be discouraged from voting under the Voter ID Law, requiring staff to dedicate more time to obtain the necessary information. Id. The Indiana Coalition on Housing and Homeless Issues was formed by individuals and organizations across the state to "advocate[ ] for persons who experience homelessness as well as low-income persons and families across Indiana." Id. at 800-01. "Many homeless and impoverished persons d[id] not have valid driver's licenses and state identification cards" and would be prohibited from voting under the Voter ID Law. Id. The Indianapolis Branch of the NAACP worked towards getting individuals registered to vote and assisting them at the polls on election day. Id. at 801. Due to the Voter ID Law, the Indianapolis Branch of the NAACP felt it would be less effective and would be forced to redirect funds and energies into educating the public about the new photo identification requirements. Id. Finally, the United Senior Action of Indiana promoted and advocated on behalf of issues of interest and importance to senior citizens. Id. United Senior Action of Indiana was concerned that not only would its members be discouraged from voting but the organization's effectiveness in advocating for the elderly would diminish. Id.

(74.) Rokita, 458 F. Supp. 2d at 802.

(75.) Id.

(76.) Id. When these defendants moved to dismiss themselves as defendants on May 20, 2005, the court denied the motion, but relieved them from actively participating in the litigation. Id. at n.30.

(77.) See id. at 802.

(78.) Id.

(79.) Rokita, 458 F. Supp. 2d at 802.

(80.) See IND. CODE ANN. [section] 3-6-3.7-1 (LexisNexis Supp. 2009). See also Rokita, 458 F. Supp. 2d at 802.

(81.) Rokita, 458 F. Supp. 2d at 802.

(82.) Id. at 792.

(83.) Id. at 795.

(84.) Id. Regardless of a photo identification requirement, the United States, among the world's democracies, has one of the lowest voter-participation rates. Overton, supra note 36, at 658. "[The United States] trail[s] many other established and developing democracies in voter turnout by twenty to thirty percentage points, and one survey ranked the United States 138th of 170 democracies." Id.

(85.) Rokita, 458 F. Supp. 2d at 795. The Voter ID Law would be the most difficult for the disabled, the homeless, individuals with limited income, individuals without cars, minorities, non-English speaking minorities, and the elderly. Id.

(86.) Id. Surveys conducted by plaintiff Indiana Coalition on Housing and Homeless Issues and Horizon House, a daycare center in Indianapolis, responded that their clients generally had neither licenses nor identification because homeless individuals had often lost all of their possessions. Id.

(87.) Id.

(88.) Id.

(89.) Id. at 796. The American Association of Retired People Indiana reported "3% of Indiana registered voters over the age of 60 d[id] not have a drivers [sic] license or identification card." Id. The director of United Senior Action of Indiana concluded that many senior citizens did not have a valid driver's license or identification card. Id.

(90.) Id.

(91.) Id. One poll observer explained that potential voters who were challenged could not afford to take the extra 15 to 30 minutes to go through the challenge process as they were often on their way to work or on their way home to take care of their families. Id.

(92.) Id. at 803.

(93.) Id. The court found the Brace Report unreliable for a variety of alleged reasons, including failure to account for voter roll inflation, comparing demographic data from different years without qualification or analysis, allegedly drawing inaccurate and illogical conclusions, and failing to qualify the statistical estimates based on socioeconomic data. Id. The court's dismissal of the Brace Report proved problematic, because typically,
   constitutional challenges to voter photo identification (ID)
   statutes, the presentation of empirical data into evidence is
   crucial in assessing the burdens of a photo 1D requirement on
   voters and the state's interest in preventing fraud, otherwise
   judges will likely engage in ad hoc, contestable conjecture about
   the danger of fraud and the difficultly of obtaining a photographic
   identification card.


Elizabeth D. Lauzon, Annotation, Constitutionality of Requiring Presentation of Photographic Identification in Order to Vote, 27 A.L.R. 6TH 541, [section] 3 (2007).

(94.) Rokita, 458 F. Supp. 2d at 803.

(95.) Crawford v. Marion County Election Bd., 128 S.Ct. 1610, 1614 (2008). The complaint was filed against the state officials responsible for the implementation of the new law. Id.

(96.) Id.

(97.) Id.

(98.) Id.

(99.) Id.

(100.) Id.

(101.) Id. (citing Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 783 (S.D. Ind. 2006)). Weighing heavily on its decision, the district court discredited the plaintiffs' expert report that stated that about 989,000 registered Indiana voters lacked a state-issued driver's license or photo identification. Id. at 1614-15 (citing Rokita, 458 F. Supp. 2d at 803, 807). Instead, the district court estimated that around 43,000 Indiana residents did not possess the proper type of identification when the Voter ID Law was enacted. Id. (citing Rokita, 458 F. Supp. 2d at 803, 807).

(102.) Crawford II, 128 S.Ct. at 1615 (citing Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir. 2007)).

(103.) Id. (quoting Crawford I, 472 F.3d at 952).

(104.) Id. (quoting Crawford I, 472 F.3d at 954, 956 (Evans, J., dissenting)).

(105.) Id. (quoting Crawford I, 472 F.3d at 954, 956 (Evans, J., dissenting)).

(106.) Id. (quoting Crawford I, 472 F.3d at 956-57 (Evans, J., dissenting)).

(107.) Crawford v. Marion County Election Bd., 484 F.3d 436, 437 (7th Cir. 2007).

(108.) Id.

(109.) Crawford II, 128 S.Ct. at 1615.

(110.) Id. Following the United States Supreme Court's decision, the League of Women Voters brought another action in state court arguing that the Constitution of Indiana was violated. Telephone Interview with Thomas Fischer, Indiana Solicitor General (July 9, 2009). The Indiana trial court dismissed the matter, and it was appealed to the Indiana Court of Appeals. Id. The State's argument remained that the statute was merely administrative, rather than altering voter qualifications. Id. See infra Part V.

(111.) U.S. CONST. amend. XV. See Mark S. Scarberry, Historical Considerations and Congressional Representation for the District of Columbia: Constitutionality of the D.C. House Voting Rights Bill in Light of Section Two of the Fourteenth Amendment and the History of the Creation of the District, 60 ALA. L. REV. 783 (2009).

(112.) U.S. CONST. amend. XV, [section] 1. See Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999).

(113.) South Carolina v. Katzenbach, 383 U.S. 301, 310 (1966) [hereinafter Katzenbach I].

(114.) Id.

(115.) Id.

(116.) Id.

(117.) Id.

(118.) See Smith v. Allwright, 321 U.S. 649 (1944); Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966); Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992).

(119.) Katzenbach I, 383 U.S. at 315.

(120.) 383 U.S. 301 (1966).

(121.) 384 U.S. 641 (1966) [hereinafter Katzenbach II].

(122.) Katzenbach I, 383 U.S. at 323. The provisions in question included those that pertained to the suspension of eligibility tests or devices, review of proposed alteration of voting qualification and procedures, appointment of federal voting examiners, examination of applicants for registration, challenges to eligibility listings, termination of listing procedures, and enforcement proceedings in criminal contempt cases. Id. at 315-17.

(123.) Id. at 301. The rational basis formula to be used in cases concerning the express powers of Congress with relation to the reserved powers of the states was laid out in McCulloch v. Maryland, many years before the Fifteenth Amendment was ratified. McCulloch v. Maryland, 17 U.S. 316 (1819). The formula was stated as follows:
   Let the end be legitimate, let it be within the scope of the
   constitution, and all means which are appropriate, which are
   plainly adapted to that end, which are not prohibited, but consist
   with the letter and spirit of the constitution, are constitutional.


Id. at 421.

(124.) Katzenbach II, 384 U.S. at 646-47.

(125.) Id. at 643.

(126.) See id. at 651, 658. "It was well within congressional authority to say that this need of the Puerto Rican minority for the vote warranted federal intrusion upon any state interests served by the English literacy requirement." Id. at 653.

(127.) 128 S.Ct. 1610.

(128.) 321 U.S. 649 (1944).

(129.) Id. at 651.

(130.) Id.

(131.) Id. at 652.

(132.) Id. at 657.

(133.) Id.

(134.) Id.

(135.) Id. at 661-62 (citing United States v. Classic, 313 U.S. 299, 314 (1941); Myers v. Anderson, 238 U.S. 368, 378 (1915); Ex parte Yarbrough, 110 U.S. 651, 663 (1884)).

(136.) Smith, 321 U.S. at 666.

(137.) Id. at 664 (citing Grovey v. Townsend, 295 U.S. 45, 55 (1935)).

(138.) Id. at 664-65.

(139.) 321 U.S. 649.

(140.) Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966).

(141.) Id.

(142.) Id. at 665 n.1.

(143.) Id. at 664.

(144.) See id. at 665-66. Invidious discrimination is defined as a "violation of the Fourteenth Amendment" if the discrimination is "arbitrary, irrational and not reasonably related to a legitimate purpose." BLACK'S LAW DICTIONARY 826 (6th ed. 1990).

(145.) Harper, 383 U.S. at 667 (internal quotations omitted).

(146.) Harper, 383 U.S. at 667 (citing Reynolds v. Sims, 377 U.S. 533, 561-62 (1964)).

(147.) Id. at 667-68 (quoting Reynolds, 377 U.S. at 568).

(148.) Id. at 668.

(149.) Id.

(150.) Id. at 666. "In a recent searching re-examination of the Equal Protection Clause, we held, as already noted, that 'the opportunity for equal participation by all voters in the election of state legislators' is required." Id. at 670 (quoting Reynolds v. Sims, 377 U.S. 533, 566 (1964)).

(151.) 460 U.S. 780 (1983).

(152.) Id. at 782.

(153.) Id. at 782-83.

(154.) Id. at 783.

(155.) Id. at 786. The Court of Appeals reversed the district court's holding. Id.

(156.) Id. at 792.

(157.) Anderson, 460 U.S. at 794.

(158.) Id. at 806. None of the state's asserted interests such as voter education, equal treatment for partisan and independent candidates, and political stability sufficed to justify the action of the State in Anderson. Id. at 796-806.

(159.) Id. at 806 (quoting Dunn v. Blumstein, 405 U.S. 330, 343 (1972)).

(160.) Id. (quoting Kusper v. Pontikes, 414 U.S. 51, 59 (1973)).

(161.) Id. at 787.

(162.) Id. at 787 n.7.

(163.) Id. at 788.

(164.) Id. at 789. "The results of this evaluation will not be automatic; as we have recognized, there is 'no substitute for the hard judgments that must be made.'" Id. at 789-90 (quoting Storer v. Brown, 415 U.S. 724 (1974)).

(165.) Id. at 789.

(166.) Burdick v. Takushi, 504 U.S. 428, 434 (1992).

(167.) Anderson, 460 U.S. at 789-90.

(168.) 504 U.S. 428 (1992).

(169.) Write-in voting occurs when an individual wishes to vote in an election for a candidate that has not filed nominating papers and whose name would not appear on the ballot. Id. at 430.

(170.) Id.

(171.) Id. The district court entered a preliminary injunction requiring write-in votes to be cast and tallied in the November 1986 election. Id. at 430-31. The Court of Appeals entered a stay and vacated the judgment as premature. Id. at 431.

(172.) Id. at 430.

(173.) Id. at 431-32.

(174.) See infra Part IV.B.

(175.) See infra Part IV.A.

(176.) Burdick, 504 U.S. at 433-34. Explaining the analysis under this standard, the Court stated:
   the rigorousness of our inquiry into the propriety of a state
   election law depends upon the extent to which a challenged
   regulation burdens First and Fourteenth Amendment rights. Thus, as
   we have recognized when those rights are subjected to "severe"
   restrictions, the regulation must be "narrowly drawn to advance a
   state interest of compelling importance." But when a state election
   law provision imposes only "reasonable, nondiscriminatory
   restrictions" upon the First and Fourteenth Amendment rights of
   voters, "the State's important regulatory interests are generally
   sufficient to justify" the restrictions.


Id. at 434 (internal citations omitted). See Lauzon, supra note 93, at [section] 3. If the burden imposed by state law is slight, it is presumed that the law is constitutional and the state need not justify the burden with a compelling interest. Ian McMullen, Constitutional Burdens on the Right to Vote. Crawford v. Marion County Election Board, 60 MERCER L. REV. 1007, 1012 (2009).

(177.) Burdick, 504 U.S. at 434-35.

(178.) Id. at438.

(179.) Id. at 441.

(180.) Crawford v. Marion County Election Bd., 128 S.Ct. 1610, 1616 (2008) (quoting Norman v. Reed, 502 U.S. 279, 288-89 (1972)). Justice Scalia's concurring opinion in Crawford explained that the degree of severity could be described as "[o]rdinary and widespread burdens, such as those requiring 'nominal effort' of everyone ..." Id. at 1624 (Scalia, J., concurring). Justice Scalia further stated that "[b]urdens are severe if they go beyond the merely inconvenient." Id. at 1625.

(181.) See infra Part IV.

(182.) See infra Part IV.B.

(183.) See infra Part IV.A.

(184.) Brief for the Petitioners, supra note 17, at 27.

(185.) Id at 32 n. 14. Indiana and Georgia were the only two states requiring individuals to present photo identification for in-person voting. Id. Georgia enacted its law in 2005 and amended it in 2006 authorizing free photo identification cards to those without. Id. See GA. CODE ANN. [section] 21-2-417 (1998). Four states require photo identification but have provisions for those unable to produce photo identification. Id. Louisiana, Michigan, and South Dakota allow an individual without photo identification to sign an affidavit and vote by regular ballot at the polls. Id. See LA. REV. STAY. ANN. [section] 18:562(A) (2004 & Supp. 2010); MICH. COMP. LAWS SERV. [section] 168.523 (LexisNexis 2004 & Supp. 2009); S.D.C.L. [section] 12-18-6.1 (2004 & Supp. 2009). Florida voters without the proper identification are permitted to cast a provisional ballot if deemed acceptable by signature analysis. Id. See FLA. STAT. ANN. [section] 101.043 (West 2008). While the State of Hawaii website claims voters must have a photo identification to vote, the state statute provides that identification will only be required if a precinct official requests it. Id. See Voting in Hawaii, http://www.hawaii.gov/elections/voters/votehi.htm (last visited Jan. 9, 2010); HAW. REV. STAY. ANN. [section] 11-136 (LexisNexis 2006).

(186.) Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 785 (S.D. Ind. 2006).

(187.) Id. (quoting IND. CONST. art. II, [section] 2).

(188.) Id. There was an abundance of ways individuals could register to vote, including via mail. See National Voter Registration Act, 42 U.S.C. [section] 1973gg (2006) [hereinafter NVRA]; IND. CODE ANN. [section][section] 3-7-13-1 to 3-7-24-17 (LexisNexis 2002 & Supp. 2009); Rokita, 458 F. Supp. 2d at 785. When registering in-person to vote, no form of identification was required. Id. Under penalty of perjury, a registration form was signed. Id.

(189.) Rokita, 458 F. Supp. 2d at 785. The five officials include: an inspector, drawn from the political party whose candidate for Secretary of State received the majority of votes in the previous election in the county; two clerks, one from each major political party, who were vested with the responsibility of the poll book and who check in voters and issue the ballots; and two judges, one from each major political party, who administered the voting machine. Id. County Election Boards were empowered to appoint these officials. Id. See IND. CODE ANN. [section] 3-6-6-1, 2 (LexisNexis 2002).

(190.) Rokita, 458 F. Supp. 2d at 785. See IND. CODE ANN. [section] 3-6-6-1 (LexisNexis 2002).

(191.) Rokita, 458 F. Supp. 2d at 785. See IND. CODE ANN. [section] 3-6-4.2-2 (LexisNexis 2002).

(192.) Rokita, 458 F. Supp. 2d at 785. The Election Division had published a 2006 Indiana Voter Information Guide to summarize the Voter ID Law. Id. at 786 n.7. Employees of the Secretary of State's Office planned to educate and spread awareness to both voters and poll workers about the Voter ID Law using approximately four million dollars in federal HAVA grant money. Id.

(193.) Id. at 785-86.

(194.) Id. at 786.

(195.) Id. at 787.

(196.) Rokita, 458 F. Supp. 2d at 787. See IND. CODE ANN. [section] 3-11-4-2 (LexisNexis 2002 & Supp. 2009).

(197.) Rokita, 458 F. Supp. 2d at 787. See IND. CODE ANN. [section] 3-11-10-24(a) (LexisNexis 2002 & Supp. 2009). The statute provides:

(a) Except as provided in subsection (b), a voter who satisfies any of the following is entitled to vote by mail:

(1) The voter has a specific, reasonable expectation of being absent from the county on election day during the entire twelve (12) hours that the polls are open.

(2) The voter will be absent from the precinct of the voter's residence on election day because service as:

(A) a precinct election officer under IC 3-6-6;

(B) a watcher under IC 3-6-8, IC 3-6-9, or IC 3-6-10;

(C) a challenger or poll book holder under IC 3-6-7; or

(D) a person employed by an election board to administer the election for which the absentee ballot is requested.

(3) The voter will be confined on election day to the voter's residence, to a health care facility, or to a hospital because of an illness or injury during the entire twelve (12) hours that the polls are open.

(4) The voter is a voter with disabilities.

(5) The voter is an elderly voter.

(6) The voter is prevented from voting due to the voter's care of an individual confined to a private residence because of illness or injury during the entire twelve (12) hours that the polls are open.

(7) The voter is scheduled to work at the person's regular place of employment during the entire twelve (12) hours that the polls are open; (8) The voter is eligible to vote under IC 3-10-11 or IC 3-10-12.

(9) The voter is prevented from voting due to observance of a religious discipline or religious holiday during the entire twelve (12) hours that the polls are open.

(10) The voter is an address confidentiality program participant (as defined in IC 5-26.5-1-6).

(11) The voter is a member of the military or public safety officer.

Id.

(198.) Rokita, 458 F. Supp. 2d at 787. See HAVA, supra note 36, [section] 15483(b).

(199.) Rokita, 458 F. Supp. 2d at 788.

(200.) Id.

(201.) Id. A clerk from either political party could challenge a voter based on a comparison of the signature kept on file and the signature given on election day. Id.

(202.) Id. See IND. CODE ANN. [section] 3-14-2-16 (LexisNexis 2002 & Supp. 2009).

(203.) Rokita, 458 F. Supp. 2d at 788.

(204.) Id. This information includes: voter's name, date of birth, present address, prior address if applicable, that the voter was a citizen, that the voter had resided in the precinct for at least 30 days, and that the voter had not already voted in another precinct. Id. See IND. CODE ANN. [section] 3-11-8-23 (LexisNexis 2002 & Supp. 2009).

(205.) Rokita, 458 F. Supp. 2d at 788. See IND. CODE ANN. [section] 3-14-5-3 (LexisNexis 2002 & Supp. 2009).

(206.) Rokita, 458 F. Supp. 2d at 786. See IND. CODE ANN. [section] 3-11-8-25.1(c)(2) (LexisNexis 2002 & Supp. 2009).

(207.) Rokita, 458 F. Supp. 2d at 786. See IND. CODE ANN. [section] 3-11-8-25.1(d)(2) (LexisNexis 2002 & Supp. 2009).

(208.) Rokita, 458 F. Supp. 2d at 786. See IND. CODE ANN. [section] 3-11.7-5-2.5(a) (LexisNexis Supp. 2009).

(209.) Rokita, 458 F. Supp. 2d at 786. See IND. CODE ANN. [section] 3-11.7-5-2.5 (LexisNexis Supp. 2009).

(210.) Rokita, 458 F. Supp. 2d at 786-87.

(211.) Id. See IND. CODE ANN. [section] 3-11.7-5-2.5(c), (LexisNexis Supp. 2009).

(212.) Rokita, 458 F. Supp. 2d at 787. "In the 2004 general election, 82% of the provisional ballots cast in Marion County were not counted." Id. at 788. "Statewide, only about 15% of all provisional ballots were counted." Id.

(213.) Id. at 787.

(214.) U.S. CONST. art. I, [section] 4, cl. 1. The Constitution states: "The Times, Places and Manner of holding Elections for Senators and Representatives, 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 chusing [sic] Senators." Id.

(215.) COMMISSION, supra note 37, at [section] 1.0.

(216.) Kramer v. Union Free Sch. Dist., 395 U.S. 621, 625 (1969).

(217.) COMMISSION, supra note 37, at [section] 1.4.

(218.) 321 U.S. 649 (1944). See supra Part III.B.1 and accompanying footnotes.

(219.) 383 U.S. 301 (1966). See supra Part III.A and accompanying footnotes.

(220.) 384 U.S. 641 (1966). See supra Part III.A and accompanying footnotes.

(221.) 383 U.S. 663 (1966). See supra Part III.B.2 and accompanying footnotes.

(222.) 460 U.S. 780 (1983). See supra Part III.B.3 and accompanying footnotes.

(223.) 504 U.S. 428 (1992). See supra Part III.B.4 and accompanying footnotes.

(224.) See supra Part III.

(225.) See infra Part IV.A.

(226.) See infra Part IV.B.

(227.) Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).

(228.) Id

(229.) Reynolds v. Sims, 377 U.S. 533,555 (1964).

(230.) Dunn v. Blumstein, 405 U.S. 330, 336 (1972).

(231.) Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit at 24, Ind. Democratic Party v. Rokita, No. 07-25 (7th Cir. July 2, 2007) [hereinafter Petition for Writ].

(232.) Id. (quoting Evans v. Cornman, 398 U.S. 419,423 (1970)).

(233.) RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW [section] 18.3(a)(iv) (4th ed. 2009).

(234.) Id.

(235.) Id. See, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972) (holding that state laws requiring would-be voters to be residents for a year in the state and three months within the county do not further any compelling state interest and violate the Equal Protection Clause of the Fourteenth Amendment); Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969) (stating that a New York statute which limited voting in certain school districts to owners or lessees of taxable realty and to parents or guardians of children in public schools was not necessary to promote a compelling state interest); Shapiro v. Thompson, 394 U.S. 618 (1969) (explaining that a statutory prohibition of welfare benefits to residents of less than a year creates an invidious discrimination denying those residents equal protection of the law); Loving v. Virginia, 388 U.S. 1 (1967) (holding that Virginia miscegenation statutes preventing marriage between persons based on racial classification violated the Equal Protection and Due Process Clauses under the Fourteenth Amendment).

(236.) ROTUNDA & NOWAK, supra note 233, [section] 18.3(a)(iv).

(237.) See Crawford v. Marion County Election Bd., 128 S.Ct. 1610, 1615 (2008) (explaining that when conduct is prohibited under the strict scrutiny standard, it is described as invidiously discriminating). See also Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966) (stating that payment of a $1.50 poll tax violates the Equal Protection Clause of the Fourteenth Amendment as it makes the affluence of the voter or payment of any fee an electoral standard); Carrington v. Rash, 380 U.S. 89, 96 (1965) (holding that while a state may impose "reasonable residence restrictions on the availability of the ballot," it "may not deny the opportunity to vote to a bona fide resident merely because he is a member of the armed services").

(238.) Crawford II 128 S.Ct. at 1616.

(239.) Petition for Writ, supra note 231, at 22.

(240.) See Burdick v. Takushi, 504 U.S. 428,434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). A compromising effort to marry the right to vote with the state's right to regulate elections, the Anderson standard as used in Burdick "was ambiguous because it was open to different interpretations resulting in unpredictable outcomes." Bryan P. Jensen, Crawford v. Marion County Election Board." The Missed Opportunity to Remedy the Ambiguity and Unpredictability of Burdick, 86 DENV. U. L. REV. 535,563 (2009).

(241.) Burdick, 504 U.S. at 430.

(242.) Write-in voting is when an individual wishes to vote in an election for a candidate that has not filed nominating papers and whose name would not appear on the ballot. Id.

(243.) Id. at 438-39.

(244.) Id. at 433-34 (internal citations omitted).

(245.) Id. at 434 (internal citations omitted).

(246.) See Burdick, 504 U.S. 428; Anderson, 460 U.S. 780.

(247.) 321 U.S. 649 (1944).

(248.) Petition for Writ, supra note 231, at 21-22.

(249.) Id. at 24-25. Petitioners argue that affirming the Voter ID Law "which allows this fundamental personal fight to some, if not to too many, is irreconcilable with [the Supreme] Court's precedents and introduces a calculus that undermines the fundamental right of individuals to vote." Id.

(250.) 383 U.S. 663 (1966). See infra notes 255-260.

(251.) Harper, 383 U.S. at 666.

(252.) Id.

(253.) See infra notes 258-260.

(254.) Brief for the Petitioners, supra note 17, at 13.

(255.) For a discussion of the steps a voter without identification may be forced to take, see supra Part II.A.

(256.) Brief for the Petitioners, supra note 17, at 27.

(257.) See Weinschenk v. State, 203 S.W.3d 201 (Mo. 2006).

(258.) 203 S.W.3d 201 (Mo. 2006).

(259.) Id. at 222.

(260.) Id. at215-16.

(261.) Crawford v. Marion County Election Bd., 128 S.Ct. 1610 (2008). See Common Cause/Ga. League of Women Voters of Ga., Inc. v. Billups, 439 F. Supp. 2d 1294, 1345-51 (N.D. Ga. 2006) (using the strict scrutiny standard and holding that Georgia's photo identification requirements imposed a severe burden on the fight to vote because of the unlikelihood that many voters could obtain the appropriate identification in the short time before the next election).

(262.) See Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). The Court stated that:
   [A court] must first consider the character and magnitude of the
   asserted injury to the rights protected by the First and Fourteenth
   Amendments that the plaintiff seeks to vindicate. [The court] then
   must identify and evaluate the precise interests put forward by the
   State as justifications for the burden imposed by its rule. In
   passing judgment, the Court must not only determine the legitimacy
   and strength of each of those interests; it also must consider the
   extent to which those interests make it necessary to burden the
   plaintiff's rights. Only after weighing all these factors is the
   reviewing court in a position to decide whether the challenged
   provision is unconstitutional.


Id.

(263.) See supra Part III.B.3-4.

(264.) See infra Part IV.B.

(265.) Anderson, 460 U.S. at 796-806 (noting that the State cited varied interests such as voter education, equal treatment for partisan and independent candidates, and political stability). 266. See infra notes 271-303.

(267.) Crawford v. Marion County Election Bd., 128 S.Ct. 1610, 1616-20. The four concerns included: modernizing election procedures, combating voter fraud, addressing the consequences of the state's bloated voter rolls, and protecting public confidence in the integrity of the electoral process. Id.

(268.) Id. at 1636 (Souter, J., dissenting) (quoting Cal. Democratic Party v. Jones, 530 U.S. 567, 584 (2000) (emphasis omitted)).

(269.) Id. (quoting Burdick v. Takushi, 504 U.S. 428,434 (1992)).

(270.) Id.

(271.) Id.

(272.) Crawford II, 128 S.Ct. at 1617. The federal statutes referenced therein included National Voter Registration Act, 42 U.S.C. [section] 1973gg (2006) and Help America Vote Act of 2002, 42 U.S.C. [section] 15483 (2006).

(273.) Crawford II, 128 S.Ct. at 1636 (Souter & Ginsburg, JJ., dissenting).

(274.) Id.

(275.) Id. Presently, an empirical study of the magnitude of voter fraud has not been conducted at the national or state level, but some conclude, based on data that does exist, that "a photo identification requirement on voting would do more harm than good." Overton, supra note 36, at 635. Overton estimates that 6-11% of voting-age citizens do not possess some form of state-issued photo identification, Id. In states like Wisconsin, 78% of African-American men in the 18-24 age demographic lack a driver's license. Id. Further, a study performed in the 2004 Washington State election showed that of 2.8 million votes cast, only 0.0009% of those ballots involved voting fraud. Id. "If further study confirms that photo-identification requirements would deter over 6700 legitimate votes for every single fraudulent vote prevented, a photo-identification requirement would increase the likelihood of erroneous election outcomes." Id.

(276.) Crawford II, 128 S.Ct. at 1636 (Souter & Ginsburg, JJ., dissenting) (citing Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (recognizing "the State's compelling interest in preventing voter fraud")); cf Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 231 (1989) (stating that "[a] State indisputably has a compelling interest in preserving the integrity of its election process").

(277.) Id. at 1636-37 (Souter & Ginsburg, JJ., dissenting). Many voter fraud and impersonation problems were left unresolved with the Voter ID Law. Id. at 1637. Examples of potential uncured fraud and misrepresentation include: "absentee-ballot fraud ... ; ... registered voters voting more than once (but maintaining their own identities) in different counties or in different states; ... felons and other disqualified individuals voting in their own names; ... vote buying; ... ballot-stuffing, ballot miscounting, voter intimidation, or any other type of corruption on the part of officials administering elections." Id.

(278.) Id. at 1618-20 (majority opinion); Id. at 1637 (Souter & Ginsburg, JJ., dissenting).

"Defendants conceded that 'the State of Indiana [wa]s not aware of any incidents or person attempting to vote, or voting, at a voting place with fraudulent or otherwise false identification.'" Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775,792-93 (S.D. Ind. 2006).

(279.) Crawford II, 128 S.Ct. at 1637 (Souter& Ginsburg, JJ., dissenting).

(280.) See id. (citing Eric Lipton & Ian Urbina, In 5-Year Effort, Scant Evidence of Voter Fraud, N.Y. TIMES, Apr. 12, 2007, at A l). "Five years after the Bush Administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews[.]" Id.

(281.) Crawford II, 128 S.Ct. at 1637-38 (Souter & Ginsburg, JJ., dissenting).

(282.) Id. In Footnote 29, Justice Souter quoted the William Hughes Meatus rhyme from Antigonish, "As I was going up the stair / I met a man who wasn't there." Id. (quoting William Hughes Mearns, Antigonish, in BEST REMEMBERED POEMS 107 (M. Gardner ed. 1992)).

(283.) Crawford II, 128 S.Ct. at 1638 (Souter& Ginsburg, JJ., dissenting).

(284.) Id. at 1640; see id. at 1644 (Breyer, J., dissenting). The Court relied upon the Carter-Baker Report stating the recommendations of utilizing photo identification in the voting process were conditioned upon the ability of the state to ensure that free photo identification be easily available and that any requirements "be 'phased in' over two federal election cycles, to ease the transition." Id. at 1644 (Breyer, J., dissenting) (quoting COMMISSION, supra note 37, at App. 139-40).

(285.) Id. at 1640 (Souter & Ginsburg, JJ., dissenting). The Court quoted the Report and stated, "[f]or the next two federal elections, until January 1, 2010, in states that require voters to present [identification] at the polls, voters who fail to do so should nonetheless be allowed to cast a provisional ballot, and their ballot would count if their signature is verified[.]" Id. (quoting COMMISSION, supra note 37, at [section] 2.5, App. 136, 140).

(286.) Id. (citing COMMISSION, supra note 37, at [section] 2.5, App. 136, 141).

(287.) Jimmy Carter & James A. Baker III, Voting Reform is in the Cards, N.Y. TIMES, Sept. 23, 2005, at A19.

(288.) Crawford II, 128 S.Ct. at 1640 (Sourer & Ginsburg, JJ., dissenting).

(289.) Id. at 1641.

(290.) ld.

(291.) NVRA, supra note 188, [section] 1973gg-6. See Crawford II, 128 S.Ct. at 1641 (Souter & Ginsburg, JJ., dissenting).

(292.) Crawford II, 128 S.Ct. at 1641 (Sourer & Ginsburg, JJ., dissenting).

(293.) Id. at 1641-42.

(294.) Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 794 (S.D. Ind. 2006). With regard to the 2000 national election, Rasmussen Reports poll showed 59% of voters believed that "a lot" or "some" fraud existed in elections; Gallup Poll depicted that 67% of adults nationally had "some" or "very little" confidence in the casting of votes. Id. In regard to the 2004 national election, Zogby Poll found 10% of voters felt their votes were not counted accurately; election-law scholar Richard Hasen indicated more than 13.6% of Americans were concerned that the 2004 presidential vote was unfair; Rasmussen Reports survey of 1,000 potential voters predicted 82% of respondents favored photo identification when voting. Id.

(295.) Id.

(296.) Id.

(297.) Crawford II, 128 S.Ct. at 1642 (Souter & Ginsburg, JJ., dissenting).

(298.) Id.

(299.) Id.

(300.) League of Women Voters of Indiana, Inc. v. Rokita, 915 N.E.2d 151 (Ind. Ct. App. 2009).

(301.) Id.

(302.) COMMISSION, supra note 37, at iii. These recommendations include: utilizing a top-down and up-to-date universal registration list, creating a uniform voter identification system, using measures to enhance ballot integrity and voter access, creating a voter-verifiable paper trail with improved security, and making it a priority to have electoral institutions that are impartial, professional and independent.

Id.

ABIGAIL A. HOWELL, J.D. Candidate, 2011, University of South Dakota School of Law; B.A., 2008, South Dakota State University. The author would like to thank Joseph Dylla and Brooke Swier for their editorial advice and insight, Professor David S. Day for stimulating her interest in the area, and her family for their unwavering support and continuous motivation.
COPYRIGHT 2010 South Dakota Law Review
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2010 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:Howell, Abigail A.
Publication:South Dakota Law Review
Date:Jun 22, 2010
Words:17424
Previous Article:Arizona v. Gant: heightening a person's expectation of privacy in a motor vehicle following searches incident to arrest.
Next Article:A bigger and better market-participant exception? Examining Justice Souter's revison of the market-participant exception to the dormant commerce...
Topics:

Terms of use | Privacy policy | Copyright © 2021 Farlex, Inc. | Feedback | For webmasters |