"The application of the [photo ID requirement] to the vast majority of Indiana voters is amply justified by the valid interest in protecting the integrity and reliability of the electoral process."
Thus did Supreme Court Justice John Paul Stevens conclude the controlling opinion handed down on Monday, April 28, in one of the most important election law cases to come before the Court in recent years.
Indiana passed a law in 2005 requiring voters to show photo ID at the polls, and was immediately challenged in court by the state Democratic Party and several elected officials. They claimed the law unconstitutionally burdened elderly, minority and poor voters without photo ID, despite little evidence to back up this claim. In a 6-3 decision the high court rejected that claim, finding Indiana's interest in deterring voter fraud and promoting voter confidence justified any incidental burden on voters.
While a decisive win for Indiana, the court's decision was fractured with four opinions, two in the majority and two dissents. But all six of the majority justices agreed Indiana had valid, neutral and strong interests in deterring voter fraud and improving voter confidence. Even dissenting Justice Souter admitted, "there is no denying the abstract importance, the compelling nature, of combating voter fraud."
Congratulations, state legislators! You've been given a legal green light to enact reasonable laws to deter fraud and improve confidence. But not just a green light to enact photo ID requirements. No, those only help secure one piece of the election process. Washington state, for example, has switched almost entirely to a mail ballot system. A photo ID law is of little use, but laws with similar goals like stricter ID requirements for voter registration and mail ballots would deter fraud and improve voter confidence.
Last year in Seattle, seven employees of the liberal group ACORN were prosecuted for forging 1,762 voter registration cards. Around the same time one Washington voter-wanting to demonstrate the insecurity of the system-easily registered her dog to vote, returning his paw-print-stamped ballots in three elections before the dog was removed from the rolls. Those kinds of stories don't give voters warm fuzzies about election integrity.
While voter registration fraud is certainly a problem, absentee ballots are widely seen as the primary source of voter fraud. Even Barak Obama, who opposes photo ID requirements, cited security concerns in opposing a vote-by-mail do-over in the Florida presidential primary. Just last month an Alabama county clerk was arrested for casting illegal absentee ballots in her ex-husband's legislative race, and in February four Texas residents were prosecuted for delivering mail ballots to ineligible voters.
These crimes could be prevented by laws like the ballot initiative passed in Arizona that required proof of citizenship to register to vote. With no federal or state databases capable of accurately identifying non-citizens on the voter rolls, such a law makes sense to ensure only citizens can register and vote. A bevy of liberal groups immediately challenged Arizona's law as unconstitutional, but have not fared well in district court. The Supreme Court's decision makes it likely Arizona will win, and should encourage states like Washington to follow a similar path.
When considering new election security laws, legislators shouldn't be frightened by special interest groups who oppose them on grounds of "vote suppression." Despite voter ID laws on the books in many states, turnout has been very high for hot races like the Democratic presidential nomination. Minor issues of convenience are not the drivers of participation; in some respects voting is inconvenient for all voters. As Justice Scalia wrote in his concurring opinion, "very few new election regulations improve everyone's lot." Instead, participation is driven by voter motivation. In high-profile contested races like the presidential primary, it goes up. But nothing kills motivation like fearing one's vote won't be counted accurately or will be diluted by an illegal vote.
States should act quickly to increase voter confidence with reasonable election security laws, especially now that they have guidance from the Supreme Court. Voting is the primary tool by which we the people exercise control over our government, and its integrity must be preserved.
Jonathan Bechtle is Legal Counsel at the Evergreen Freedom Foundation in Olympia and was co-author of the amicus brief EFF filed in the Indiana case.