(mods -- this is copied from the actual court case, so copyright rules should not apply -- brook)
DOWNLOADABLE PDF:
http://www.brennancenter.org/dynamic/subpages/download_file_50813.pdfIN THE
Supreme Court of the United States
_________
INDIANA DEMOCRATIC PARTY, et al.,
Petitioners,
v.
TODD ROKITA, in his official capacity
as Indiana Secretary of State, et al.,
Respondents.
________
On a Writ of Certiorari
(This is abridged.)
STATEMENT OF THE CASE
In 2005, the State of Indiana, for the first time in
its history, began requiring voters at their polling
places to show government-issued photographic
identification cards with specific characteristics. The
photo-identification requirement imposed by Indiana
Senate Enrolled Act No. 483, Pub. L. No. 109-2005
(the “Photo ID Law”), was not enacted in response to
any record of voter-impersonation fraud at the polls
in Indiana.
No one has ever been prosecuted for inperson
voter fraud in Indiana’s history. Nor has
anyone ever cited a single episode of such fraud
occurring in the State.But
what the legislators who passed the Photo ID
Law did know was that it would burden voting by a
group of eligible voters who lack the requisite
identification because they do not drive and have no
other regular need for state-issued photo ID —
primarily elderly, disabled, poor, and minority
voters. Because these voters tend to support
Democratic candidates, there was good reason to
think that the suppression of turnout caused by the
new law would primarily harm Democrats. Indeed,
the law was passed by a party-line vote shortly after
the Republican Party won control of both houses of
the state legislature as well as the Governor’s office.
This effective disenfranchisement of voters lacking
government-issued photo ID is not sufficiently
tailored to achieving any legitimate state interest.
I. Voting in Indiana Prior to Passage of the Photo ID Law
Prior to enactment of the Photo ID Law in 2005,
Indiana voters were not required to present photo
identification. Rather, a voter was instructed to
sign the poll book, and the voter’s signature would be
compared to the copy on file with the election board.
If a voter was challenged, the challenger would sign an affidavit,
the voter would sign a counter-affidavit, and the voter would be
allowed to vote a regular ballot. After the
ballot was cast and counted, the challenging
affidavits would be sent to a prosecutor for
investigation.
Until Congress passed the Help America Vote Act
of 2002 (“HAVA”), 42 U.S.C. § 15483(b), Indiana law
did not provide for the casting of a provisional ballot
when a voter’s residence status or identity was
challenged. Indiana first began using
provisional ballots in the 2004 election.
Those ballots, once cast, had a low likelihood of ever
being counted. Statewide, 85% of provisional ballots
were not counted in 2004.
Only limited categories of Indiana voters were
allowed to vote absentee. Id. at 5a-6a. Eligibility
was limited primarily to persons who would be
absent from the county on Election Day, persons who
would be working for the entire 12 hours that the
polls were open, the elderly, and the disabled.
To vote absentee by mail, one
had to apply for an absentee ballot at least eight
days before the election, wait for it to arrive in the
mail, fill out the ballot and place it in a special
envelope, sign an affidavit on the envelope attesting
to one’s identity, and then mail it back to the county
election board in time to arrive by noon on Election
Day.
If the absentee ballot arrived on
time, the voter’s identity was then confirmed by
comparing the signature on the affidavit to a
signature kept on file, a process the State deems
sufficient “to ensure that there is no fraud and that
the election is both safe and secure.”
There was no requirement that those voting via
absentee mail-in ballot ever produce photo
identification. That remains true today as well.
II. Passage of the Photo ID LawIn the November 2004 election, the Indiana
Republican Party gained control of the Indiana
House and the governorship, giving the party unified
control of state government for the first time since
1988. Shortly after returning to session in January
2005, Republican members of the General Assembly
sponsored bills conditioning the right to vote on
presentation of certain photographic identification.
The photo-identification bills addressed only one
narrow category of potential election fraud — inperson
voter-impersonation fraud occurring at the
polling place on Election Day. See Pet. App. 7a (law
addresses “the form of voting fraud in which a person
shows up at the polls claiming to be someone else —
7
someone who has left the district, or died, too
recently to have been removed from the list of
registered voters, or someone who has not voted yet
on election day”).
It is undisputed that prior to enactment of the
Photo ID Law, Indiana had never prosecuted a case
of in-person voter fraud. Indeed, the
State of Indiana conceded that it was not even aware
of any actual incidents of in-person fraud. A
member of the Indiana House Elections Committee
testified that since his election in 1996, not a single
legislator or interest group had ever come before the
committee indicating, by anecdote or data, that
Indiana had a problem with in-person voting fraud.
The same member recalls that Indiana Secretary of State Todd Rokita,
the State’s chief election official and a prime supporter of the
Photo ID Law, offered no evidence in testimony
before that committee of in-person voting fraud in
Indiana.
By contrast, the State was aware of actual
incidents of absentee-ballot fraud. When Secretary
Rokita testified before Congress in early 2005, his
description of fraud in Indiana focused entirely on
absentee-ballot fraud, not in-person fraud.
Indiana Supreme Court, finding “overwhelming
evidence of election misconduct” in the casting of
absentee ballots, recently had vacated the results of
the East Chicago mayoral primary after 7.9% of the
absentee ballots were invalidated.
Moreover, it was absentee-ballot fraud that was
more likely in States like Indiana with voter registration
rolls that had not been purged and
updated.
After detailing absentee-ballot abuses, Rokita praised photo ID
requirements for in-person voting, but suggested no connection
between the two.
Indiana had long been aware that its voter-registration rolls
were inflated with invalid registrations. Indiana’s failure to properly maintain
its voter-registration lists led to its being sued by the United
States in 2006 for noncompliance with the National Voter
Registration Act of 1993 (“NVRA”),
Indiana signed a consent decree stating that it had “failed to
conduct an adequate general program of list maintenance that
makes a reasonable effort to identify and remove the names of
ineligible voters from the voter registration list.”
Despite the absence of a practice or credible
threat of in-person voting fraud in Indiana, and
despite a history of absentee-ballot fraud, the
Indiana General Assembly imposed no new
identification requirements for the mail-in absentee voting
process, preferring instead to impose a strict
voter-identification requirement on citizens voting in
person.
The Photo ID Law was strenuously opposed
by the Indiana Democratic Party and its members,
as well as a variety of organizations representing
elderly, disabled, poor, and minority voters. The bill
eventually passed on party-line votes in both
chambers, with not a single Democratic or
Republican defector.7 On April 27, 2005, it was
signed into law by the Republican Governor.
III. The Requirements of the Photo ID LawThe Photo ID Law materially altered the ability
of an eligible voter to cast a vote and have it counted.
A voter wishing to vote in person in a primary or
general election in Indiana now must provide proof of
identification that (1) shows a photograph, (2) shows
a name that “conforms” with the voter-registration
records, (3) was issued by the State of Indiana or the
United States, and (4) had not expired as of the
previous general election.
A number of government-issued forms of identification,
such as cards issued by the Veterans Administration,
are not accepted because they lack expiration dates.
Only persons living and voting in a state-licensed facility, such as a nursing home,
are exempt from the proof-of-identification
requirement.
Even if the voter is well known to the precinct
pollworkers at his neighborhood polling place, if he is
“unable or declines to present the proof of
identification,” or if “a member of the precinct
election board determines that the proof of
identification provided by the voter does not qualify
as proof of identification,” a member of the precinct
board “shall challenge the voter.”
A precinct board member’s knowing failure
to do so is a felony. If the precinct
board finds the proof of identification insufficient,
there is no process for the voter immediately to
appeal, and the voter must either leave the polling
place or undertake the provisional-ballot process.
Because Indiana closes its polls at 6:00 p.m. (the
earliest poll-closing time in the Nation), even voters
who know where to find their photo ID may not have
time to leave the polling place, locate their ID, and
then return to the polls to vote a regular
(nonprovisional) ballot. For those who undertake the provisional-ballot
process, the initial step is for the voter to execute an
extensive affidavit reciting nine specific facts about
the voter, all under penalty of perjury.
The voter is then given a provisional ballot.
For that ballot to be counted, however, the voter then
must travel to the circuit-court clerk or the county
election board within ten days after the election.
Upon reaching the
circuit-court clerk or the county election board, the
voter must execute an affidavit swearing that he is
the person who cast the provisional ballot. The voter then must either (1) show
a valid photo ID card or (2) swear that he has a
religious objection to being photographed or is an
indigent who is unable to obtain proof of
identification without paying a fee. Although the
statute requires a provisional voter to execute an
affidavit “affirming under the penalties of perjury”
that the voter is “indigent,” the statute does not
define that term. Affidavits of indigency or
religious objection are not available at the polling
places on Election Day, nor may they be executed
prior to Election Day. Rather, each voter must
execute a new affidavit after each election, during
the ten-day window.
IV. The Burdens of Complying with the Photo ID LawFor many affluent Americans, it may be hard to
imagine life without a driver’s license, a passport, or
other government-issued photo ID. But the reality is
that, across the country, about 12% of voting-age
Americans lack a driver’s license.
And about 11% of voting-age United States
citizens — more than 21 million individuals — lack
any form of current government-issued photo ID.
That 11% figure grows to 15% for voting-age citizens earning less
than $35,000 per year, 18% for citizens at least 65
years old, and 25% for African-American voting-age
citizens. In Indiana, the most likely forms of photo
identification to be sought by voters are driver’s
licenses and photo-identification cards issued by the
Indiana Bureau of Motor Vehicles (“BMV”). State photo ID cards must be renewed
every four years or six years (depending on their date
of issuance).
To obtain the photo identification now required to
vote in person in Indiana, a significant bloc of voters
must undertake a sometimes lengthy and
cumbersome process. A voter must appear in person
at one of the BMV branch offices,
but the BMV turns away about 60% of applicants for
photo ID cards because they do not have the proper
supporting documents.
To demonstrate Indiana residency, an applicant must show proof of a
residential address in the form of either a primary or
a secondary document containing the applicant’s
current address, or by means of a third category of
documents which includes Indiana property deeds,
state child-support checks, and change-of-address
confirmation forms from the U.S. Postal Service.
“Primary documents” can be hard to procure for
some Indiana voters, particularly for those born out
of State. For example, Theresa Clemente, a
nondriver who moved from Massachusetts to Indiana
in 1991, testified that, when she learned of the new
law,
she made three trips to the BMV to get a state-issued
photo ID, with no success. On her first visit, Ms. Clemente brought her Social Security
card, her voter-registration card, a property tax bill,
a utility bill, and a credit card,
but was told she
needed a copy of her birth certificate. On her second visit, Ms. Clemente brought a copy of her
Massachusetts birth certificate,
but was told she
needed a certified copy. She sent away to Boston
for a certified copy, but was told
it would cost $28.00.She then sent in another request, along with a
check, and 14 days later she received the certified
copy.
On her third trip to the Indiana
BMV, Ms. Clemente was told she needed a certified
copy of her marriage certificate, because her birth
certificate showed only her maiden name, Theresa
Grady.
After this entire process — which she
described as “humiliating, time consuming, and
extremely frustrating” — Ms. Clemente still had no
photo ID and thus no ability to cast a vote that would
be counted.
The process can be similarly convoluted for a
voter born in Indiana. He can try to obtain a birth
certificate from either the Indiana Department of
Health (“IDOH”) or the health department for the
county of his birth. IDOH charges a
$10 fee for conducting the birth-certificate search,
and county fees vary from $2 to $10.
The Photo ID Law compels voters without
sufficient identification to defend themselves against
challenges at the polling place at significant time
and expense, preventing and deterring eligible voters
from casting their ballots and having them counted.
When the polls are busy and lines are long,
challenges that should be routine sometimes delay
voters by 30 minutes or more.
Even before the new law passed, voters often were intimidated and left the
polls when confronted by a challenger. Notably, the State does not make available at the
polling place the indigency affidavit or the religious objection
affidavit that is needed to complete the
provisional-voting process and to get the ballot
counted. Instead, after requiring the voter to sign
one affidavit at the polling place to initiate the
provisional-voting process, the State requires the
voter (who lacks a driver’s license and hence cannot
drive herself) to take a second trip, to the circuit court
clerk or the county election board, to sign a
separate affidavit that permits her to vote without
photo ID. Otherwise, her vote never will be counted.
With the exception of indigents and religious
objectors who fill out these additional affidavits,
anyone who lacked photo ID at the polls and voted
provisionally must retrieve or obtain government issued
photo ID and present it to the circuit-court
clerk or the county election board within ten days of
the election.
Provisional voters who lack identification and are unable to
obtain underlying documentation and navigate the
BMV’s rules before ten days elapse will not have
their votes counted.
And the Secretary has expressly identified these groups of
burdened voters: “elderly voters, indigent voters, voters with
disabilities, first-time voters,
re-enfranchised
ex-felons.”
It is not seriously disputed that the Photo ID Law
will outright prevent some of these eligible voters
from voting, and will deter others. The court noted that nearly three-quarters of
those persons — approximately 31,500 — were
“concentrated” in Marion County, which includes
Indianapolis. These numbers indicate that an adult in Marion County is
more than 16 times as likely as an adult elsewhere in
Indiana to lack state-issued photo identification.
That disparity is not surprising. Indianapolis is
the State’s dominant urban center, with a total
population exceeding that of the next seven largest
Indiana cities combined, and with the State’s most
extensive mass-transit system, and hence more
residents without vehicles or driver’s licenses.
More than 30% of Indianapolis’s population is
nonwhite, as compared with less than 10% elsewhere
in the State. Moreover, in recent years Marion
County has been trending Democratic relative to the
rest of the State, and in 2004 it was one of only four
Indiana counties (out of 92 total) that voted for
Senator Kerry over President Bush. So, by the
District Court’s calculations, nearly 75% of the
potential voters who lack state-issued photo IDs are
concentrated in the State’s most heavily urbanized
county, a Democratic stronghold.
The partisan imbalance in the effects of the Photo
ID Law will not be inconsequential, given Indiana’s
long-standing history of razor-thin election margins.
In 2006, the Indiana House switched from a 52-48
Republican majority to a 51-49 Democratic majority.
It was the fifteenth time in the past 35 elections that
control of the chamber has switched parties.14 Three
2006 Indiana House elections were subjected to
recounts because only 7, 15, and 27 votes separated
the leading candidates.
The broader ramifications of allowing similarly
restrictive photo-identification requirements are also
apparent. The 2001 Ford-Carter Commission
demonstrated that margins of victory in federal and
state elections are frequently less than 1%. It noted
that “n the last half century, only two states,
Mississippi and South Carolina, have not had a
federal or gubernatorial election decided by less than
one percent of ballots cast.” And “since
1948, 22 states have seen presidential contests
decided within a percentage point (and 40 states
have had presidential contests within two points).”
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
