Voter ID Laws: A "Solution" in Search of a Problem

By Marty Lederman

I'm just beginning to read through the opinions in today's decision upholding the facial validity of Indiana's Voter ID law. Along with many others, I have argued that the law is unconstitutional because it imposes burdens on voting without advancing any governmental interest. Thus, to my mind the most noteworthy paragraph in Justice Stevens's lead opinion is the one in which he tries to adduce evidence of an actual problem that this law would address:
The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor—though perpetrated using absentee ballots and not in-person fraud—demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.
The third piece of evidence (Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor) is not really on point, as Justice Stevens more or less acknowledges, because it was "perpetrated using absentee ballots and not in-person fraud," and thus would be unaffected by the Indiana law. So what we are left with is (i) "flagrant examples of such fraud in other parts of the country [that] have been documented throughout this Nation’s history by respected historians and journalists"; and (ii) "occasional examples [of such fraud that] have surfaced in recent years."
For the first proposition, what does the opinion cite? Only this: An anecdote about in-person voter impersonation allegedly orchestrated by Boss Tweed in 1868. And for the second -- occasional "recent" examples? Justice Stevens tips his hat to the Brennan Center's showing that "much of" the evidence of such fraud "was actually absentee ballot fraud or voter registration fraud." Nevertheless, he states that "there remain scattered instances of in-person voter fraud." The evidence for this? That in the 2004 Washington gubernatorial election, a partial investigation confirmed that one voter committed in-person voting fraud...

I am disappointed by how cursory that [plurality] opinion was in its review of the state's interest in light of the highly partisan atmosphere of election administration, and I fear that, despite the Stevens-Kennedy-Roberts' opinion's best intentions, this opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections. It is a real disappointment from that perspective.
READ THE REST OF THE ARTICLE HERE:
http://www.slate.com/blogs/blogs/convictions/archive/2008/04/28/a-solution-in-search-of-a-problem.aspx