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

• Author: Howell, Abigail A.

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.

1. 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)

2. FACTS AND PROCEDURE

   1. 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...