Crawford v. Marion County Election Board

OPINION OF STEVENS, J. CRAWFORD V. MARION COUNTY ELECTION BD. 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NOS. 07-21 AND 07-25 WILLIAM CRAWFORD, et al., PETITIONERS

															07–21 v. MARION COUNTY ELECTION BOARD
et al. INDIANA DEMOCRATIC PARTY, et al. ,
PETITIONERS

															07–25 v. TODD ROKITA, INDIANA SECRETARY OF STATE,
et al. on writs of certiorari to the united states
court of appeals for the seventh circuit [April 28, 2008] Justice Stevens announced the judgment of the Court and delivered an opinion in
which The Chief Justice and Justice Kennedy join.

															   At issue in these cases is the
constitutionality of an Indiana statute requiring citizens voting
in person on election day, or casting a ballot in person at the
office of the circuit court clerk prior to election day, to present
photo identification issued by the government.

															   Referred to as either the “Voter ID Law” or
“SEA 483,”[ Footnote 1 ] the
statute applies to in-person voting at both primary and general
elections. The requirement does not apply to absentee ballots
submitted by mail, and the statute contains an exception for
persons living and voting in a state-licensed facility such as a
nursing home. Ind. Code Ann. §3–11–8–25.1(e) (West Supp. 2007). A
voter who is indigent or has a religious objection to being
photographed may cast a provisional ballot that will be counted
only if she executes an appropriate affidavit before the circuit
court clerk within 10 days following the election. §§3–11.7–5–1,
3–11.7–5–2.5(c) (West 2006).[ Footnote 2 ] A voter who has photo identification but is
unable to present that identification on election day may file a
provisional ballot that will be counted if she brings her photo
identification to the circuit county clerk’s office within 10 days.
§3–11.7–5–2.5(b). No photo identification is required in order to
register to vote,[ Footnote 3 ]
and the State offers free photo identification to qualified voters
able to establish their residence and identity. §9–24–16–10(b)
(West Supp. 2007).[ Footnote
4 ]

															   Promptly after the enactment of SEA 483 in
2005, the Indiana Democratic Party and the Marion County Democratic
Central Committee (Democrats) filed suit in the Federal District
Court for the Southern District of Indiana against the state
officials responsible for its enforcement, seeking a judgment
declaring the Voter ID Law invalid and enjoining its enforcement. A
second suit seeking the same relief was brought on behalf of two
elected officials and several nonprofit organizations representing
groups of elderly, disabled, poor, and minority voters.[ Footnote 5 ] The cases were
consolidated, and the State of Indiana intervened to defend the
validity of the statute.

															   The complaints in the consolidated cases
allege that the new law substantially burdens the right to vote in
violation of the Fourteenth Amendment; that it is neither a
necessary nor appropriate method of avoiding election fraud; and
that it will arbitrarily disfranchise qualified voters who do not
possess the required identification and will place an unjustified
burden on those who cannot readily obtain such identification.
Second Amended Complaint in No. 1: 05–CV–0634–SEB–VSS (SD Ind.),
pp. 6–9 (hereinafter Second Amended Complaint).

															   After discovery, District Judge Barker
prepared a comprehensive 70-page opinion explaining her decision to
grant defendants’ motion for summary judgment. 458 F. Supp. 2d
775 (SD Ind. 2006). She found that petitioners had “not introduced
evidence of a single, individual Indiana resident who will be
unable to vote as a result of SEA 483 or who will have his or her
right to vote unduly burdened by its requirements.” Id. ,
at 783. She rejected “as utterly incredible and unreliable” an
expert’s report that up to 989,000 registered voters in Indiana did
not possess either a driver’s license or other acceptable photo
identification. Id., at 803. She estimated that as of
2005, when the statute was enacted, around 43,000 Indiana residents
lacked a state-issued driver’s license or identification card. Id., at 807.[ Footnote
6 ]

															   A divided panel of the Court of Appeals
affirmed. 472 F. 3d 949 (CA7 2007). The majority first held
that the Democrats had standing to bring a facial challenge to the
constitutionality of SEA 483. Next, noting the absence of any
plaintiffs who claimed that the law would deter them from voting,
the Court of Appeals inferred that “the motivation for the suit is
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.” Id., at 952. It rejected
the argument that the law should be judged by the same strict
standard applicable to a poll tax because the burden on voters was
offset by the benefit of reducing the risk of fraud. The dissenting
judge, viewing the justification for the law as “hollow”—more
precisely as “a not-too-thinly-veiled attempt to discourage
election-day turnout by certain folks believed to skew
Democratic”—would have applied a stricter standard, something he
described as “close to ‘strict scrutiny light.’ ” Id. , at 954, 956 (opinion of Evans, J.). In his view, the
“law imposes an undue burden on a recognizable segment of potential
eligible voters” and therefore violates their rights under the
First and Fourteenth Amendments to the Constitution. Id. ,
at 956–957.

															   Four judges voted to grant a petition for
rehearing en banc. 484 F. 3d 437 (CA7 2007) (Wood, J.,
dissenting from denial of rehearing en banc). Because we agreed
with their assessment of the importance of these cases, we granted
certiorari. 551 U. S. ___ (2007). We are, however, persuaded that
the District Court and the Court of Appeals correctly concluded
that the evidence in the record is not sufficient to support a
facial attack on the validity of the entire statute, and thus
affirm.[ Footnote 7 ]

															I

															   In Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966),
the Court held that Virginia could not condition the right to vote
in a state election on the payment of a poll tax of $1.50. We
rejected the dissenters’ argument that the interest in promoting
civic responsibility by weeding out those voters who did not care
enough about public affairs to pay a small sum for the privilege of
voting provided a rational basis for the tax. See id., at
685 (opinion of Harlan, J.). Applying a stricter standard, we
concluded that a State “violates the Equal Protection Clause of the
Fourteenth Amendment whenever it makes the affluence of the voter
or payment of any fee an electoral standard.” Id. , at 666
(opinion of the Court). We used the term “invidiously discriminate”
to describe conduct prohibited under that standard, noting that we
had previously held that while a State may obviously 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.” Id., at 666–667 (citing Carrington v. Rash , 380 U.
S. 89 , 96 (1965)). Although the State’s justification for the
tax was rational, it was invidious because it was irrelevant to the
voter’s qualifications.

															   Thus, under the standard applied
in Harper, even rational restrictions on the right to vote
are invidious if they are unrelated to voter qualifications. In Anderson v. Celebrezze, 460 U. S. 780 (1983),
however, we confirmed the general rule that “evenhanded
restrictions that protect the integrity and reliability of the
electoral process itself” are not invidious and satisfy the
standard set forth in Harper . 460 U. S., at 788,
n. 9. Rather than applying any “litmus test” that would neatly
separate valid from invalid restrictions, we concluded that a court
must identify and evaluate the interests put forward by the State
as justifications for the burden imposed by its rule, and then make
the “hard judgment” that our adversary system demands.

															   In later election cases we have followed Anderson ’s balancing approach. Thus, in Norman v. Reed, 502
U. S. 279 , 288–289 (1992), after identifying the burden
Illinois imposed on a political party’s access to the ballot, we
“called for the demonstration of a corresponding interest
sufficiently weighty to justify the limitation, ” and
concluded that the “severe restriction” was not justified by a
narrowly drawn state interest of compelling importance. Later, in Burdick v. Takushi , 504 U. S. 428 (1992), we
applied Anderson ’s standard for “ ‘reasonable,
nondiscriminatory restrictions,’ ” 504 U. S., at 434, and
upheld Hawaii’s prohibition on write-in voting despite the fact
that it prevented a significant number of “voters from
participating in Hawaii elections in a meaningful manner.” Id., at 443 (Kennedy, J., dissenting). We reaffirmed Anderson ’s requirement that a court evaluating a
constitutional challenge to an election regulation weigh the
asserted injury to the right to vote against the “ ‘precise
interests put forward by the State as justifications for the burden
imposed by its rule.’ ” 504 U. S., at 434 (quoting Anderson , 460 U. S., at 789).[ Footnote 8 ]

															   In neither Norman nor Burdick did we identify any litmus test for measuring the
severity of a burden that a state law imposes on a political party,
an individual voter, or a discrete class of voters. However slight
that burden may appear, as Harper demonstrates, it must be
justified by relevant and legitimate state interests “sufficiently
weighty to justify the limitation.” Norman, 502 U. S., at
288–289. We therefore begin our analysis of the con- stitutionality
of Indiana’s statute by focusing on those interests.

															II

															   The State has identified several
state interests that arguably justify the burdens that SEA 483
imposes on voters and potential voters. While petitioners argue
that the statute was actually motivated by partisan concerns and
dispute both the significance of the State’s interests and the
magnitude of any real threat to those interests, they do not
question the legitimacy of the interests the State has identified.
Each is unquestionably relevant to the State’s interest in
protecting the integrity and reliability of the electoral
process.

															   The first is the interest in
deterring and detecting voter fraud. The State has a valid interest
in participating in a nationwide effort to improve and modernize
election procedures that have been criticized as antiquated and
inefficient.[ Footnote 9 ] The
State also argues that it has a particular interest in preventing
voter fraud in response to a problem that is in part the product of
its own maladministration—namely, that Indiana’s voter registration
rolls include a large number of names of persons who are either
deceased or no longer live in Indiana. Finally, the State relies on
its interest in safeguarding voter confidence. Each of these
interests merits separate comment. Election Modernization Two recently enacted federal
statutes have made it necessary for States to reexamine their
election procedures. Both contain provisions consistent with a
State’s choice to use government-issued photo identification as a
relevant source of information concerning a citizen’s eligibility
to vote. In the National Voter
Registration Act of 1993 (NVRA), 107 Stat. 77, 42 U. S. C.
§1973gg et seq., Congress established procedures that would
both increase the number of registered voters and protect the
integrity of the electoral process. §1973gg. The statute requires
state motor vehicle driver’s license applications to serve as voter
registration applications. §1973gg–3. While that requirement has
increased the number of registered voters, the statute also
contains a provision restricting States’ ability to remove names
from the lists of registered voters. §1973gg–6(a)(3). These
protections have been partly responsible for inflated lists of
registered voters. For example, evidence credited by Judge Barker
estimated that as of 2004 Indiana’s voter rolls were inflated by as
much as 41.4%, see 458 F. Supp. 2d, at 793, and data collected
by the Election Assistance Committee in 2004 indicated that 19 of
92 Indiana counties had registration totals exceeding 100% of the
2004 voting-age population, Dept. of Justice Complaint in United States v. Indiana , No.
1:06–cv–1000–RLY–TAB (SD Ind., June 27, 2006), p. 4, App.
313.

															   In HAVA, Congress required every State to
create and maintain a computerized statewide list of all registered
voters. 42 U. S. C. §15483(a) (2000 ed., Supp. V). HAVA also
requires the States to verify voter information contained in a
voter registration application and specifies either an “applicant’s
driver’s license number” or “the last 4 digits of the applicant’s
social security number” as acceptable verifications.
§15483(a)(5)(A)(i). If an indi- vidual has neither number, the
State is required to assign the applicant a voter identification
number. §15483(a)(5)(A)(ii).

															   HAVA also imposes new identification
requirements for individuals registering to vote for the first time
who submit their applications by mail. If the voter is casting his
ballot in person, he must present local election officials with
written identification, which may be either “a current and valid
photo identification” or another form of documentation such as a
bank statement or paycheck. §15483(b)(2)(A). If the voter is voting
by mail, he must include a copy of the identification with his
ballot. A voter may also include a copy of the documentation with
his application or provide his driver’s license number or Social
Security number for verification. §15483(b)(3). Finally, in a
provision entitled “Fail-safe voting,” HAVA authorizes the casting
of provisional ballots by challenged voters. §15483(b)(2)(B).

															   Of course, neither HAVA nor NVRA required
Indiana to enact SEA 483, but they do indicate that Congress
believes that photo identification is one effective method of
establishing a voter’s qualification to vote and that the integrity
of elections is enhanced through improved technology. That
conclusion is also supported by a report issued shortly after the
enactment of SEA 483 by the Commission on Federal Election Reform
chaired by former President Jimmy Carter and former Secretary of
State James A. Baker III, which is a part of the record in these
cases. In the introduction to their discussion of voter
identification, they made these pertinent comments:

															“A good registration list will ensure that citizens
are only registered in one place, but election officials still need
to make sure that the person arriving at a polling site is the same
one that is named on the registration list. In the old days and in
small towns where everyone knows each other, voters did not need to
identify themselves. But in the United States, where 40 million
people move each year, and in urban areas where some people do not
even know the people living in their own apartment building let
alone their precinct, some form of identification is needed.

															   “There is no evidence of extensive fraud in U.
S. elections or of multiple voting, but both occur, and it could
affect the outcome of a close election. The electoral system cannot
inspire public confidence if no safeguards exist to deter or detect
fraud or to confirm the identity of voters. Photo identification
cards currently are needed to board a plane, enter federal
buildings, and cash a check. Voting is equally important.”
Commission on Federal Election Reform, Report, Building Confidence
in U. S. Elections §2.5 (Sept. 2005), App. 136–137 (Carter-Baker
Report) (footnote omitted).[ Footnote 10 ] Voter Fraud 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,[ Footnote 11 ] that occasional
examples have surfaced in recent years,[ Footnote 12 ] and that Indiana’s own experience with
fraudulent voting in the 2003 Democratic primary for East Chicago
Mayor[ Footnote 13 ]—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. There is no question about
the legitimacy or importance of the State’s interest in counting
only the votes of eligible voters. Moreover, the interest in
orderly administration and accurate recordkeeping provides a
sufficient justification for carefully identifying all voters
participating in the election process. While the most effective
method of preventing election fraud may well be debatable, the
propriety of doing so is perfectly clear. In its brief, the State argues that the
inflation of its voter rolls provides further support for its
enactment of SEA 483. The record contains a November 5, 2000,
newspaper article asserting that as a result of NVRA and “sloppy
record keeping,” Indiana’s lists of registered voters included the
names of thousands of persons who had either moved, died, or were
not eligible to vote because they had been convicted of
felonies.[ Footnote 14 ] The
conclusion that Indiana has an unusually inflated list of
registered voters is supported by the entry of a consent decree in
litigation brought by the Federal Government alleging violations of
NVRA. Consent Decree and Order in United States v. Indiana , No. 1:06–cv–1000–RLY–TAB (SD Ind., June 27,
2006), App. 299–307. Even though Indiana’s own negligence may have
contributed to the serious inflation of its registration lists when
SEA 483 was enacted, the fact of inflated voter rolls does provide
a neutral and nondiscriminatory reason supporting the State’s
decision to require photo identification. Safeguarding Voter Confidence Finally, the State contends
that it has an interest in protecting public confidence “in the
integrity and legitimacy of representative government.” Brief for
State Respondents, No. 07-25, p. 53. While that interest is closely
related to the State’s interest in preventing voter fraud, public
confidence in the integrity of the electoral process has
independent significance, because it encourages citizen
participation in the democratic process. As the Carter-Baker Report
observed, the “electoral system cannot inspire public confidence if
no safeguards exist to deter or detect fraud or to confirm the
identity of voters.” Supra, at 10.

															III

															   States employ different methods
of identifying eligible voters at the polls. Some merely check off
the names of registered voters who identify themselves; others
require voters to present registration cards or other documentation
before they can vote; some require voters to sign their names so
their signatures can be compared with those on file; and in recent
years an increasing number of States have relied primarily on photo
identification.[ Footnote 15 ]
A photo identification requirement imposes some burdens on voters
that other methods of identification do not share. For example, a
voter may lose his photo identification, may have his wallet stolen
on the way to the polls, or may not resemble the photo in the
identification because he recently grew a beard. Burdens of that
sort arising from life’s vagaries, however, are neither so serious
nor so frequent as to raise any question about the
constitutionality of SEA 483; the availability of the right to cast
a provisional ballot provides an adequate remedy for problems of
that character.

															   The burdens that are relevant to
the issue before us are those imposed on persons who are eligible
to vote but do not possess a current photo identification that
complies with the requirements of SEA 483.[ Footnote 16 ] The fact that most voters already
possess a valid driver’s license, or some other form of acceptable
identification, would not save the statute under our reasoning in Harper, if the State required voters to pay a tax or a fee
to obtain a new photo identification. But just as other States
provide free voter registration cards, the photo identification
cards issued by Indiana’s BMV are also free. For most voters who
need them, the inconvenience of making a trip to the BMV, gathering
the required documents, and posing for a photograph surely does not
qualify as a substantial burden on the right to vote, or even
represent a significant increase over the usual burdens of
voting.[ Footnote 17 ]

															   Both evidence in the record and facts of which
we may take judicial notice, however, indicate that a somewhat
heavier burden may be placed on a limited number of persons. They
include elderly persons born out-of-state, who may have difficulty
obtaining a birth certificate;[ Footnote 18 ] persons who because of economic or other
personal limitations may find it difficult either to secure a copy
of their birth certificate or to assemble the other required
documentation to obtain a state-issued identification; homeless
persons; and persons with a religious objection to being
photographed. If we assume, as the evidence suggests, that some
members of these classes were registered voters when SEA 483 was
enacted, the new identification requirement may have imposed a
special burden on their right to vote.

															   The severity of that burden is, of course,
mitigated by the fact that, if eligible, voters without photo
identification may cast provisional ballots that will ultimately be
counted. To do so, however, they must travel to the circuit court
clerk’s office within 10 days to execute the required affidavit. It
is unlikely that such a requirement would pose a constitutional
problem unless it is wholly unjustified. And even assuming that the
burden may not be justified as to a few voters,[ Footnote 19 ] that conclusion is by no means
sufficient to establish petitioners’ right to the relief they seek
in this litigation.

															IV

															   Given the fact that petitioners
have advanced a broad attack on the constitutionality of SEA 483,
seeking relief that would invalidate the statute in all its
applications, they bear a heavy burden of persuasion. Only a few
weeks ago we held that the Court of Appeals for the Ninth Circuit
had failed to give appropriate weight to the magnitude of that
burden when it sustained a preelection, facial attack on a
Washington statute regulating that State’s primary election
procedures. Washington State Grange v. Washington
State Republican Party , 552 U. S. ___ (2008). Our reasoning in
that case applies with added force to the arguments advanced by
petitioners in these cases.

															   Petitioners ask this Court, in
effect, to perform a unique balancing analysis that looks
specifically at a small number of voters who may experience a
special burden under the statute and weighs their burdens against
the State’s broad interests in protecting election integrity.
Petitioners urge us to ask whether the State’s interests justify
the burden imposed on voters who cannot afford or obtain a birth
certificate and who must make a second trip to the circuit court
clerk’s office after voting. But on the basis of the evidence in
the record it is not possible to quantify either the magnitude of
the burden on this narrow class of voters or the portion of the
burden imposed on them that is fully justified.

															   First, the evidence in the record does not
provide us with the number of registered voters without photo
identification; Judge Barker found petitioners’ expert’s report to
be “utterly incredible and unreliable.” 458 F. Supp. 2d, at
803. Much of the argument about the numbers of such voters comes
from extrarecord, postjudgment studies, the accuracy of which has
not been tested in the trial court.

															   Further, the deposition evidence presented in
the District Court does not provide any concrete evidence of the
burden imposed on voters who currently lack photo identification.
The record includes depositions of two case managers at a day
shelter for homeless persons and the depositions of members of the
plaintiff organizations, none of whom expressed a personal
inability to vote under SEA 483. A deposition from a named
plaintiff describes the difficulty the elderly woman had in
obtaining an identification card, although her testimony indicated
that she intended to return to the BMV since she had recently
obtained her birth certificate and that she was able to pay the
birth certificate fee. App. 94.

															   Judge Barker’s opinion makes reference to six
other elderly named plaintiffs who do not have photo
identifications, but several of these individuals have birth
certificates or were born in Indiana and have not indicated how
difficult it would be for them to obtain a birth certificate. 458
F. Supp. 2d, at 797–799. One elderly named plaintiff stated
that she had attempted to obtain a birth certificate from
Tennessee, but had not been successful, and another testified that
he did not know how to obtain a birth certificate from North
Carolina. The elderly in Indiana, however, may have an easier time
obtaining a photo identification card than the nonelderly, see
n. 17, supra, and although it may not be a completely
acceptable alternative, the elderly in Indiana are able to vote
absentee without presenting photo identification.

															   The record says virtually nothing about the
difficulties faced by either indigent voters or voters with
religious objections to being photographed. While one elderly man
stated that he did not have the money to pay for a birth
certificate, when asked if he did not have the money or did not
wish to spend it, he replied, “both.” App. 211–212. From this
limited evidence we do not know the magnitude of the impact SEA 483
will have on indigent voters in Indiana. The record does contain
the affidavit of one homeless woman who has a copy of her birth
certificate, but was denied a photo identification card because she
did not have an address. Id., at 67. But that single
affidavit gives no indication of how common the problem is.

															   In sum, on the basis of the record that has
been made in this litigation, we cannot conclude that the statute
imposes “excessively burdensome requirements” on any class of
voters. See Storer v. Brown , 415 U. S. 724 , 738
(1974).[ Footnote 20 ] A
facial challenge must fail where the statute has a “ ‘plainly
legitimate sweep.’ ” Washington State Grang e, 552 U.
S., at ___ (quoting Washington v. Glucksberg , 521 U. S. 702 ,
739–740, and n. 7 (1997) (Stevens, J., concurring in
judgments)). When we consider only the statute’s broad application
to all Indiana voters we conclude that it “imposes only a limited
burden on voters’ rights.” Burdick , 504 U. S., at 439. The
“ ‘precise interests’ ” advanced by the State are
therefore sufficient to defeat petitioners’ facial challenge to SEA
483. Id ., at 434.

															   Finally we note that petitioners have not
demonstrated that the proper remedy—even assuming an unjustified
burden on some voters—would be to invalidate the entire statute.
When evaluating a neutral, nondiscriminatory regulation of voting
procedure, “[w]e must keep in mind that “ ‘[a] ruling of
unconstitutionality frustrates the intent of the elected
representatives of the people.’ ” Ayotte v. Planned Parenthood of Northern New Eng. , 546 U. S. 320 , 329
(2006) (quoting Regan v. Time, Inc. , 468 U. S. 641 , 652
(1984) (plurality opinion))” Washington State Grang e, 552
U. S., at ___ (slip op., at 8).

															V

															   In their briefs, petitioners
stress the fact that all of the Republicans in the General Assembly
voted in favor of SEA 483 and the Democrats were unanimous in
opposing it.[ Footnote 21 ] In
her opinion rejecting petitioners’ facial challenge, Judge Barker
noted that the litigation was the result of a partisan dispute that
had “spilled out of the state house into the courts.” 458
F. Supp. 2d, at 783. It is fair to infer that partisan
considerations may have played a significant role in the decision
to enact SEA 483. If such considerations had provided the only
justification for a photo identification requirement, we may also
assume that SEA 483 would suffer the same fate as the poll tax at
issue in Harper. But if a nondiscriminatory
law is supported by valid neutral justifications, those
justifications should not be disregarded simply because partisan
interests may have provided one motivation for the votes of
individual legislators. The state interests identified as
justifications for SEA 483 are both neutral and sufficiently strong
to require us to reject petitioners’ facial attack on the statute.
The application of the statute to the vast majority of Indiana
voters is amply justified by the valid interest in protecting “the
integrity and reliability of the electoral process.” Anderson, 460 U. S., at 788, n. 9.

															   The judgment of the Court of Appeals is
affirmed.

															It is so ordered. Footnote 1 Senate Enrolled Act No. 483, 2005 Ind. Acts
p. 2005. Footnote 2 The affidavit must state that (1) the person
executing the affidavit is the same individual who cast the
provisional ballot on election day; and (2) the affiant is indigent
and unable to obtain proof of identification without paying a fee
or has a religious objection to being photographed. Ind. Code Ann.
§3–11–7.5–2.5(c) (West 2006). If the election board determines that
the challenge to the affiant was based solely on a failure to
present photo identification, the “county election board shall …
find that the voter’s provisional ballot is valid.”
§3–11–7.5–2.5(d). Footnote 3 Voters registering to vote for the first time
in Indiana must abide by the requirements of the Help America Vote
Act of 2002 (HAVA), 116 Stat. 1666, described infra, at
8–9. Footnote 4 Indiana previously imposed a fee on all
residents seeking a state-issued photo identification. At the same
time that the Indiana Legislature enacted SEA 483, it also directed
the Bureau of Motor Vehicles (BMV) to remove all fees for
state-issued photo identification for individuals without a
driver’s license who are at least 18 years old. See 2005 Ind. Acts
p. 2017, §18. Footnote 5 Specifically, the plaintiffs were William
Crawford, Joseph Simpson, Concerned Clergy of Indianapolis,
Indianapolis Resource Center for Independent Living, Indiana
Coalition on Housing and Homeless Issues, Indianapolis Branch of
the National Association for the Advancement of Colored People, and
United Senior Action of Indiana. Complaint in No. 49012050 4PL01
6207 (Super. Ct. Marion Cty., Ind., Apr. 28, 2005), p. 2. Footnote 6 She added: “In other words, an estimated 99%
of Indiana’s voting age population already possesses the necessary
photo identification to vote under the requirements of SEA 483.”
458 F. Supp. 2d, at 807. Given the availability of free photo
identification and greater public awareness of the new statutory
requirement, presumably that percentage has increased since SEA 483
was enacted and will continue to increase in the future. Footnote 7 We also agree with the unanimous view of
those judges that the Democrats have standing to challenge the
validity of SEA 483 and that there is no need to decide whether the
other petitioners also have standing. Footnote 8 Contrary to Justice
Scalia’s suggestion, see post, at 2 (opinion concurring in
judgment), our approach remains faithful to Anderson and Burdick . The Burdick opinion was explicit in its
endorsement and adherence to Anderson , see 504 U. S., at
434, and repeatedly cited Anderson , see 504 U. S., at 436,
n. 5, 440, n. 9, 441. To be sure, Burdick rejected the
argument that strict scrutiny applies to all laws imposing a burden
on the right to vote; but in its place, the Court applied the
“ ‘flexible standard’ ” set forth in Anderson . Burdick surely did not create a novel “deferential
‘important regulatory interests’ standard.” See post, at
1–2. Footnote 9 See National Commission on Federal Election
Reform, To Assure Pride and Confidence in the Electoral Process 18
(2002) (with Honorary Co-chairs former Presidents Gerald Ford and
Jimmy Carter). Footnote 10 The historical perceptions of the
Carter-Baker Report can largely be confirmed. The average precinct
size in the United States has increased in the last century,
suggesting that it is less likely that poll workers will be
personally acquainted with voters. For example, at the time Joseph
Harris wrote his groundbreaking 1934 report on election
administration, Indiana restricted the number of voters in each
precinct to 250. J. Harris, Election Administration in the United
States 208 (Brookings Institution 1934). An Elec- tion Commission
report indicates that Indiana’s average number of registered voters
per polling place is currently 1,014. Election Assistance
Commission, Final Report of the 2004 Election Day Survey, ch. 13
(Sept. 2005) (Table 13) (hereinafter Final Report) (prepared by
Election Data Services, Inc.), online at http://
www.eac.gov/clearinghouse/clearinghouse/2004-election-day-survey
(all Internet materials as visited Apr. 16, 2008, and available in
Clerk of Court’s case file). In 1930, the major cities that Harris
surveyed had an average number of voters per precinct that ranged
from 247 to 617. Election Administration in the United States, at
214. While States vary today, most have averages exceeding 1,000,
with at least eight States exceeding 2,000 registered voters per
polling place. Final Report, ch. 13 (Table 13). Footnote 11 One infamous example is the New York City
elections of 1868. William (Boss) Tweed set about solidifying and
consolidating his control of the city. One local tough who worked
for Boss Tweed, “Big Tim” Sullivan, insisted that his “repeaters”
(individuals paid to vote multiple times) have whiskers:

															“ ‘When you’ve voted ’em with their whiskers on, you take
’em to a barber and scrape off the chin fringe. Then you vote ’em
again with the side lilacs and a mustache. Then to a barber again,
off comes the sides and you vote ’em a third time with the
mustache. If that ain’t enough and the box can stand a few more
ballots, clean off the mustache and vote ’em plain face. That makes
every one of ’em good for four votes.’ ” A. Callow, The Tweed
Ring 210 (1966) (quoting M. Werner, Tammany Hall 439 (1928)). Footnote 12 Judge Barker cited record evidence containing
examples from California, Washington, Maryland, Wisconsin, Georgia,
Illinois, Pennsylvania, Missouri, Miami, and St. Louis. The
Brief of Amici Curiae Brennan Center for Justice
et al. in Support of Petitioners addresses each of these
examples of fraud. While the brief indicates that the record
evidence of in-person fraud was overstated because much of the
fraud was actually absentee ballot fraud or voter registration
fraud, there remain scattered instances of in-person voter fraud.
For example, after a hotly contested gubernatorial election in
2004, Washington conducted an investigation of voter fraud and
uncovered 19 “ghost voters.” Borders v. King
Cty., No. 05–2–00027–3 (Super. Ct. Chelan Cty., Wash., June 6,
2005) (verbatim report of unpublished oral decision), 4 Election
L. J. 418, 423 (2005). After a partial investigation of the
ghost voting, one voter was confirmed to have committed in-person
voting fraud. Le & Nicolosi, Dead Voted in Governor’s Race,
Seattle Post-Intelligencer, Jan. 7, 2005, p. A1. Footnote 13 See Pabey v. Pastrick, 816
N. E. 2d 1138, 1151 (Ind. 2006) (holding that a special
election was required because one candidate engaged in “a
deliberate series of actions . . . making it impossible to
determine the candidate who received the highest number of legal
votes cast in the election”). According to the uncontested factual
findings of the trial court, one of the candidates paid supporters
to stand near polling places and encourage voters—especially those
who were poor, infirm, or spoke little English—to vote absentee.
The supporters asked the voters to contact them when they received
their ballots; the supporters then “assisted” the voter in filling
out the ballot. Footnote 14 Theobald, Bogus Names Jam Indiana’s Voter
List, Indianapolis Star, Nov. 5, 2000, App. 145. Footnote 15 For a survey of state practice, see Brief for
Texas et al. as Amici Curiae 10–14, and nn. 1–23. Footnote 16 Ind. Code Ann. §3–5–2–40.5 (West 2006)
requires that the document satisfy 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 of 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.” Footnote 17 To obtain a photo identification card a
person must present at least one “primary” document, which can be a
birth certificate, certificate of naturalization, U. S. veterans
photo identification, U. S. military photo identification, or a U.
S. passport. Ind. Admin. Code, tit. 140, §7–4–3 (2008). Indiana,
like most States, charges a fee for obtaining a copy of one’s birth
certificate. This fee varies by county and is currently between $3
and $12. See Indiana State Department of Health Web page,
http://www.in.gov/isdh/bdcertifs/lhdfees/toc.htm. Some States
charge substantially more. Affidavit of Robert Andrew Ford, App.
12. Footnote 18 As petitioners note, Brief for Petitioners in
No. 07–21, p. 17, n. 7, and the State’s “Frequently Asked
Questions” Web page states, it appears that elderly persons who can
attest that they were never issued a birth certificate may present
other forms of identification as their primary document to the
Indiana BMV, including Medicaid/Medicare cards and Social Security
benefits statements. http://www.in.gov/faqs.htm; see also Ind.
Admin. Code, tit. 140, §7–4–3 (“The commissioner or the
commissioner’s designee may accept reasonable alternate documents
to satisfy the requirements of this rule”). Footnote 19 Presumably most voters casting provisional
ballots will be able to obtain photo identifications before the
next election. It is, however, difficult to understand why the
State should require voters with a faith-based objection to being
photographed to cast provisional ballots subject to later
verification in every election when the BMV is able to issue these
citizens special licenses that enable them to drive without any
photo identification. See Ind. Code Ann. 9–24–11–5(c) (West Supp.
2007). Footnote 20 Three comments on Justice Souter’s
speculation about the non-trivial burdens that SEA 483 may impose
on “tens of thousands” of Indiana citizens, post, at 1
(dissenting opinion), are appropriate. First, the fact that the
District Judge estimated that when the statute was passed in 2005,
43,000 citizens did not have photo identification, see 458
F. Supp. 2d 775, 807 (SD Ind. 2006), tells us nothing about
the number of free photo identification cards issued since then.
Second, the fact that public transportation is not available in
some Indiana counties tells us nothing about how often elderly and
indigent citizens have an opportunity to obtain a photo
identification at the BMV, either during a routine outing with
family or friends or during a special visit to the BMV arranged by
a civic or political group such as the League of Women Voters or a
political party. Further, nothing in the record establishes the
distribution of voters who lack photo identification. To the extent
that the evidence sheds any light on that issue, it suggests that
such voters reside primarily in metropolitan areas, which are
served by public transportation in Indiana (the majority of the
plaintiffs reside in Indianapolis and several of the organizational
plaintiffs are Indianapolis organizations). Third, the indigent,
elderly, or disabled need not “journey all the way to their county
seat each time they wish to exercise the franchise,” post, at 29, if they obtain a free photo identification card from the
BMV. While it is true that obtaining a birth certificate carries
with it a financial cost, the record does not provide even a rough
estimate of how many indigent voters lack copies of their birth
certificates. Supposition based on extensive Internet research is
not an adequate substitute for admissible evidence subject to
cross-examination in constitutional adjudication. Footnote 21 Brief for Petitioners in No. 07–25,
pp. 6–9. Fifty-two Republican House members voted for the
bill, 45 Democrats voted against, and 3 Democrats were excused from
voting. 3 Journal of the House of Representatives of Indiana, Roll
Call 259 (Mar. 21, 2005). In the Senate, 33 Republican Senators
voted in favor and 17 Democratic Senators voted against. 3 Journal
of the Senate of Indiana, Roll Call 417 (Apr. 12, 2005). SCALIA, J., CONCURRING IN JUDGMENT CRAWFORD V. MARION COUNTY ELECTION BD. 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NOS. 07-21 AND 07-25 WILLIAM CRAWFORD, et al., PETITIONERS

															07–21 v. MARION COUNTY ELECTION BOARD
et al. INDIANA DEMOCRATIC PARTY, et al. ,
PETITIONERS

															07–25 v. TODD ROKITA, INDIANA SECRETARY OF STATE,
et al. on writs of certiorari to the united states
court of appeals for the seventh circuit [April 28, 2008] Justice Scalia , with
whom Justice Thomas and Justice Alito join, concurring in the
judgment.

															   The lead opinion assumes petitioners’ premise
that the voter-identification law “may have imposed a special
burden on” some voters, ante , at 16, but holds that
petitioners have not assembled evidence to show that the special
burden is severe enough to warrant strict scrutiny, ante ,
at 18–19. That is true enough, but for the sake of clarity and
finality (as well as adherence to precedent), I prefer to decide
these cases on the grounds that petitioners’ premise is irrelevant
and that the burden at issue is minimal and justified.

															   To evaluate a law respecting the right to
vote—whether it governs voter qualifications, candidate selection,
or the voting process—we use the approach set out in Burdick v. Takushi , 504 U. S. 428 (1992). This calls for
application of a deferential “important regulatory interests”
standard for nonsevere, nondiscriminatory restrictions, reserving
strict scrutiny for laws that severely restrict the right to vote. Id., at 433–434 (internal quotation marks omitted). The
lead opinion resists the import of Burdick by
characterizing it as simply adopting “the balancing approach” of Anderson v. Celebrezze , 460 U. S. 780 (1983)
(majority opinion of Stevens, J.). See ante , at 6; see
also ante, at 6–7, n. 8. Although Burdick liberally quoted Anderson , Burdick forged Anderson ’s amorphous “flexible standard” into something
resembling an administrable rule. See Burdick, supra, at
434. Since Burdick , we have repeatedly reaffirmed the
primacy of its two-track approach. See Timmons v. Twin
Cities Area New Party , 520 U. S. 351 , 358
(1997); Clingman v. Beaver , 544 U. S. 581 , 586–587
(2005). “[S]trict scrutiny is appropriate only if the burden is
severe.” Id., at 592. Thus, the first step is to decide
whether a challenged law severely burdens the right to vote.
Ordinary and widespread burdens, such as those requiring “nominal
effort” of everyone, are not severe. See id., at 591,
593–597. Burdens are severe if they go beyond the merely
inconvenient. See Storer v. Brown , 415 U. S. 724 , 728–729
(1974) (characterizing the law in Williams v. Rhodes , 393
U. S. 23 (1968), as “severe” because it was “so burdensome” as
to be “ ‘virtually impossible’ ” to satisfy).

															   Of course, we have to identify a burden before
we can weigh it. The Indiana law affects different voters
differently, ante , at 14–16, but what petitioners view as
the law’s several light and heavy burdens are no more than the
different impacts of the single burden that the law
uniformly imposes on all voters. To vote in person in Indiana, everyone must have and present a photo identification that
can be obtained for free. The State draws no classifications, let
alone discriminatory ones, except to establish optional absentee and provisional balloting for certain poor, elderly, and
institutionalized voters and for religious objectors. Nor are
voters who already have photo identifications exempted from the
burden, since those voters must maintain the accuracy of the
information displayed on the identifications, renew them before
they expire, and replace them if they are lost.

															   The Indiana photo-identification law is a
generally applicable, nondiscriminatory voting regulation, and our
precedents refute the view that individual impacts are relevant to
determining the severity of the burden it imposes. In the course of
concluding that the Hawaii laws at issue in Burdick “impose[d] only a limited burden on voters’ rights to make free
choices and to associate politically through the vote,” 504 U. S.,
at 439, we considered the laws and their reasonably foreseeable
effect on voters generally . See id., at
436–437. We did not discuss whether the laws had a severe effect on
Mr. Burdick’s own right to vote, given his particular
circumstances. That was essentially the approach of the Burdick dissenters, who would have applied strict scrutiny
to the laws because of their effect on “some voters.” See id., at 446 (Kennedy, J., dissenting); see also id., at 448 (“The majority’s analysis ignores the
inevitable and significant burden a write-in ban imposes upon some individual voters … .” (emphasis added)).
Subsequent cases have followed Burdick ’s generalized
review of nondiscriminatory election laws. See, e.g., Timmons, supra, at 361–362; Clingman, supra , at
590–591, 592–593. Indeed, Clingman ’s holding that burdens
are not severe if they are ordinary and widespread would be
rendered meaningless if a single plaintiff could claim a severe
burden.

															   Not all of our decisions predating Burdick addressed whether a challenged voting regulation
severely burdened the right to vote, but when we began to grapple
with the magnitude of burdens, we did so categorically and did not
consider the peculiar circumstances of individual voters or
candidates. See, e.g., Jenness v. Fortson , 403 U. S. 431 , 438–441
(1971). Thus, in Rosario v. Rockefeller , 410 U. S. 752 (1973), we
did not link the State’s interest in inhibiting party raiding with
the petitioners’ own circumstances. See id., at 760–762.
And in Storer v. Brown, supra , we observed that
the severity of the burden of a regulation should be measured
according to its “nature, extent, and likely impact .” Id., at 738 (emphasis added). We therefore instructed the
District Court to decide on remand whether “a reasonably
diligent independent candidate [could] be expected to satisfy
the signature requirements, or will it be only rarely that the
unaffiliated candidate will succeed in getting on the ballot?” Id., at 742 (emphasis added). Notably, we did not suggest
that the District Court should consider whether one of the
petitioners would actually find it more difficult than a reasonably
diligent candidate to obtain the required signatures. What mattered
was the general assessment of the burden.

															   Insofar as our election-regulation cases rest
upon the requirements of the Fourteenth Amendment, see Anderson , supra , at 786, n. 7, weighing the
burden of a nondiscriminatory voting law upon each voter and
concomitantly requiring exceptions for vulnerable voters would
effectively turn back decades of equal-protection jurisprudence. A
voter complaining about such a law’s effect on him has no valid
equal-protection claim because, without proof of discriminatory
intent, a generally applicable law with disparate impact is not
unconstitutional. See, e.g., Washington v. Davis , 426
U. S. 229 , 248 (1976). The Fourteenth Amendment does not regard
neutral laws as invidious ones, even when their burdens
purportedly fall disproportionately on a protected class . A fortiori it does not do so when, as here, the classes
complaining of disparate impact are not even protected.* See Harris v. McRae , 448 U. S. 297 , 323, and
n. 26 (1980) (poverty); Cleburne v. Cleburne
Living Center, Inc. , 473 U. S. 432 , 442
(1985) (disability); Gregory v. Ashcroft , 501 U. S. 452 ,
473 (1991) (age); cf. Employment Div., Dept. of Human Resources
of Ore. v. Smith , 494 U. S. 872 , 878–879
(1990) (First Amendment does not require exceptions for religious
objectors to neutral rules of general applicability).

															   Even if I thought that stare decisis did not foreclose adopting an individual-focused approach, I would
reject it as an original matter. This is an area where the dos and
don’ts need to be known in advance of the election, and
voter-by-voter examination of the burdens of voting regulations
would prove especially disruptive. A case-by-case approach
naturally encourages constant litigation. Very few new election
regulations improve everyone’s lot, so the potential allegations of
severe burden are endless. A State reducing the number of polling
places would be open to the complaint it has violated the rights of
disabled voters who live near the closed stations. Indeed, it may
even be the case that some laws already on the books are especially
burdensome for some voters, and one can predict lawsuits demanding
that a State adopt voting over the Internet or expand absentee
balloting.

															   That sort of detailed judicial supervision of
the election process would flout the Constitution’s express
commitment of the task to the States. See Art. I, §4. It is
for state legislatures to weigh the costs and benefits of possible
changes to their election codes, and their judgment must prevail
unless it imposes a severe and unjustified overall burden upon the
right to vote, or is intended to disadvantage a particular class.
Judicial review of their handiwork must apply an objective, uniform
standard that will enable them to determine, ex ante ,
whether the burden they impose is too severe.

															   The lead opinion’s record-based resolution of
these cases, which neither rejects nor embraces the rule of our
precedents, provides no certainty, and will embolden litigants who
surmise that our precedents have been abandoned. There is no good
reason to prefer that course.

															*  *  *

															   The universally applicable
requirements of Indiana’s voter-identification law are eminently
reasonable. The burden of acquiring, possessing, and showing a free
photo identification is simply not severe, because it does not
“even represent a significant increase over the usual burdens of
voting.” Ante , at 15. And the State’s interests, ante , at 7–13, are sufficient to sustain that minimal
burden. That should end the matter. That the State accommodates
some voters by permitting (not requiring) the casting of absentee
or provisional ballots, is an indulgence—not a constitutional
imperative that falls short of what is required.

															* A number of our early right-to-vote
decisions, purporting to rely upon the Equal Protection Clause,
strictly scrutinized nondiscriminatory voting laws requiring the
payment of fees. See, e.g., Harper v. Virginia Bd. of Elections , 383 U. S. 663 , 670
(1966) (poll tax); Bullock v. Carter , 405 U. S. 134 , 145
(1972) (ballot-access fee); Lubin v. Panish , 415 U. S. 709 ,
716–719 (1974) (ballot-access fee). To the extent those decisions
continue to stand for a principle that Burdick v. Takushi, 504 U. S. 428 (1992), does not already
encompass, it suffices to note that we have never held that
legislatures must calibrate all election laws, even those
totally unrelated to money, for their impacts on poor voters or
must otherwise accommodate wealth disparities. SOUTER, J., DISSENTING CRAWFORD V. MARION COUNTY ELECTION BD. 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NOS. 07-21 AND 07-25 WILLIAM CRAWFORD, et al., PETITIONERS

															07–21 v. MARION COUNTY ELECTION BOARD
et al. INDIANA DEMOCRATIC PARTY, et al. ,
PETITIONERS

															07–25 v. TODD ROKITA, INDIANA SECRETARY OF STATE,
et al. on writs of certiorari to the united states
court of appeals for the seventh circuit [April 28, 2008] Justice Souter , with
whom Justice Ginsburg joins, dissenting.

															   Indiana’s “Voter ID Law”[ Footnote 1 ] threatens to impose
nontrivial burdens on the voting right of tens of thousands of the
State’s citizens, see ante , at 14–15 (lead opinion), and a
significant percentage of those individuals are likely to be
deterred from voting, see ante , at 15–16. The statute is
unconstitutional under the balancing standard of Burdick v. Takushi , 504 U. S. 428 (1992): a
State may not burden the right to vote merely by invoking abstract
interests, be they legitimate, see ante , at 7–13, or even
compelling, but must make a particular, factual showing that
threats to its interests outweigh the particular impediments it has
imposed. The State has made no such justification here, and as to
some aspects of its law, it has hardly even tried. I therefore
respectfully dissent from the Court’s judgment sustaining the
statute.[ Footnote 2 ]

															I

															   Voting-rights cases raise two
competing interests, the one side being the fundamental right to
vote. See Burdick , supra , at 433 (“It is beyond
cavil that ‘voting is of the most fundamental significance under
our constitutional structure’ ” (quoting Illinois Bd. of
Elections v. Socialist Workers Party , 440 U. S. 173 , 184
(1979)); see also Purcell v. Gonzalez , 549 U. S. 1 , 3–4 (2006) (per curiam); Dunn v. Blumstein , 405
U. S. 330 , 336 (1972); Reynolds v. Sims , 377 U. S. 533 ,
561–562 (1964); Yick Wo v. Hopkins , 118 U. S. 356 , 370
(1886). The Judiciary is obliged to train a skeptical eye on any
qualification of that right. See Reynolds , supra ,
at 562 (“Especially since the right to exercise the franchise in a
free and unimpaired manner is preservative of other basic civil and
political rights, any alleged infringement of the right of citizens
to vote must be carefully and meticulously scrutinized”).

															   As against the unfettered right,
however, lies the “[c]ommon sense, as well as constitutional law …
that government must play an active role in structuring elections;
‘as a practical matter, there must be a substantial regulation of
elections if they are to be fair and honest and if some sort of
order, rather than chaos, is to accompany the democratic
processes.’ ” Burdick , supra , at 433
(quoting Storer v. Brown , 415 U. S. 724 , 730
(1974)); see also Burdick , supra , at 433
(“Election laws will invariably impose some burden upon individual
voters”).

															   Given the legitimacy of interests on both
sides, we have avoided pre-set levels of scrutiny in favor of a
sliding-scale balancing analysis: the scrutiny varies with the
effect of the regulation at issue. And whatever the claim, the
Court has long made a careful, ground-level appraisal both of the
practical burdens on the right to vote and of the State’s reasons
for imposing those precise burdens. Thus, in Burdick :

															“A court considering [such] a challenge … must
weigh ‘the character and magnitude of the asserted injury to the
rights protected by the First and Fourteenth Amendments that the
plaintiff seeks to vindicate’ against ‘the precise interests put
forward by the State as justifications for the burden imposed by
its rule,’ taking into consideration ‘the extent to which those
interests make it necessary to burden the plaintiff’s
rights.’ ” 504 U. S., at 434 (quoting Anderson v. Celebrezze , 460 U. S. 780 , 789 (1983)).

															The lead opinion does not disavow these basic
principles. See ante , at 6–7 (discussing Burdick ); see also ante , at 7 (“However slight
[the] burden may appear, … it must be justified by relevant and
legitimate state interests sufficiently weighty to justify the
limitation” (internal quotation marks omitted)). But I think it
does not insist enough on the hard facts that our standard of
review demands.

															II

															   Under Burdick , “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,” 504 U. S., at 434,
upon an assessment of the “character and magnitude of the asserted
[threatened] injury,” ibid . (quoting Anderson , supra , at 789), and an estimate of the number of voters
likely to be affected.

															A

															   The first set of burdens shown in
these cases is the travel costs and fees necessary to get one of
the limited variety of federal or state photo identifications
needed to cast a regular ballot under the Voter ID Law.[ Footnote 3 ] The travel is required for
the personal visit to a license branch of the Indiana Bureau of
Motor Vehicles (BMV), which is demanded of anyone applying for a
driver’s license or nondriver photo identification. See Indiana
Democratic Party v. Rokita , 458 F. Supp. 2d 775,
791 (SD Ind. 2006). The need to travel to a BMV branch will affect
voters according to their circumstances, with the average person
probably viewing it as nothing more than an inconvenience. Poor,
old, and disabled voters who do not drive a car, however, may find
the trip prohibitive,[ Footnote
4 ] witness the fact that the BMV has far fewer license branches
in each county than there are voting precincts.[ Footnote 5 ] Marion County, for example, has over
900 active voting precincts, see Brief for Respondents in No.
07–21, p. 4,[ Footnote 6 ] yet
only 12 BMV license branches;[ Footnote 7 ] in Lake County, there are 565 active voting
precincts, see n. 6, supra , to match up with only 8
BMV locations;[ Footnote 8 ] and
Allen County, with 309 active voting precincts, see ibid. ,
has only 3 BMV license branches.[ Footnote 9 ] The same pattern holds in counties with
smaller populations. Brown County has 12 active voter precincts,
see ibid. , and only one BMV office;[ Footnote 10 ] while there were 18 polling places
available in Fayette County’s 2007 municipal primary,[ Footnote 11 ] there was only 1 BMV license
branch;[ Footnote 12 ] and
Henry County, with 42 polling places approved for 2008
elections,[ Footnote 13 ] has
only 1 BMV office.

															   The burden of traveling to a more
distant BMV office rather than a conveniently located polling place
is probably serious for many of the individuals who lack photo
identification.[ Footnote 14 ]
They almost certainly will not own cars, see Brief for Current and
Former State Secretaries of State as Amici Curiae 11, and
public transportation in Indiana is fairly limited. According to a
report published by Indiana’s Department of Transportation in
August 2007, 21 of Indiana’s 92 counties have no public
transportation system at all,[ Footnote 15 ] and as of 2000, nearly 1 in every 10 voters
lived within 1 of these 21 counties.[ Footnote 16 ] Among the counties with some public system,
21 provide service only within certain cities, and 32 others
restrict public transportation to regional county service, leaving
only 18 that offer countywide public transportation, see
n. 15, supra. State officials recognize the effect
that travel costs can have on voter turnout, as in Marion County,
for example, where efforts have been made to “establis[h] most
polling places in locations even more convenient than the statutory
minimum,” in order to “provid[e] for neighborhood voting.” Brief
for Respondents in No. 07–21, pp. 3–4.

															   Although making voters travel farther than
what is convenient for most and possible for some does not amount
to a “severe” burden under Burdick , that is no reason to
ignore the burden altogether. It translates into an obvious
economic cost (whether in work time lost, or getting and paying for
transportation) that an Indiana voter must bear to obtain an
ID.

															   For those voters who can afford the roundtrip,
a second financial hurdle appears: in order to get photo
identification for the first time, they need to present “ ‘a
birth certificate, a certificate of naturalization, U. S. veterans
photo identification, U. S. military photo identification, or a U.
S. passport.’ ” Ante , at 14, n. 16 (lead
opinion) (quoting Ind. Admin. Code, tit. 140, §7–4–3 (2008)). As
the lead opinion says, the two most common of these documents come
at a price: Indiana counties charge anywhere from $3 to $12 for a
birth certificate (and in some other States the fee is
significantly higher), see ante , at 14, n. 16, and
that same price must usually be paid for a first-time passport,
since a birth certificate is required to prove U. S. citizenship by
birth. The total fees for a passport, moreover, are up to about
$100.[ Footnote 17 ] So most
voters must pay at least one fee to get the ID necessary to cast a
regular ballot.[ Footnote 18 ]
As with the travel costs, these fees are far from shocking on their
face, but in the Burdick analysis it matters that both the
travel costs and the fees are disproportionately heavy for, and
thus disproportionately likely to deter, the poor, the old, and the
immobile.

															B

															   To be sure, Indiana has a
provisional-ballot exception to the ID requirement for individuals
the State considers “indigent”[ Footnote 19 ] as well as those with religious objections
to being photographed, see ante , at 15 (lead opinion), and
this sort of exception could in theory provide a way around the
costs of procuring an ID. But Indiana’s chosen exception does not
amount to much relief.

															   The law allows these voters who
lack the necessary ID to sign the poll book and cast a provisional
ballot. See 458 F. Supp. 2d, at 786 (citing Ind. Code Ann.
§3–11–8–25.1 (West Supp. 2007)). As the lead opinion recognizes,
though, ante , at 15, that is only the first step; to have
the provisional ballot counted, a voter must then appear in person
before the circuit court clerk or county election board within 10
days of the election, to sign an affidavit attesting to indigency
or religious objection to being photographed (or to present an ID
at that point),[ Footnote 20 ]
see 458 F. Supp. 2d, at 786. Unlike the trip to the BMV
(which, assuming things go smoothly, needs to be made only once
every four years for renewal of nondriver photo identification, see id. ), this one must be taken every time a poor person or
religious objector wishes to vote, because the State does not allow
an affidavit to count in successive elections. And unlike the trip
to the BMV (which at least has a handful of license branches in the
more populous counties), a county has only one county seat. Forcing
these people to travel to the county seat every time they try to
vote is particularly onerous for the reason noted already, that
most counties in Indiana either lack public transportation or offer
only limited coverage. See supra , at 6–7.

															   That the need to travel to the county seat
each election amounts to a high hurdle is shown in the results of
the 2007 municipal elections in Marion County, to which Indiana’s
Voter ID Law applied. Thirty-four provisional ballots were cast,
but only two provisional voters made it to the County Clerk’s
Office within the 10 days. See Brief for Respondents in No. 07–21,
pp. 8–9. All 34 of these aspiring voters appeared at the
appropriate precinct; 33 of them provided a signature, and every
signature matched the one on file; and 26 of the 32 voters whose
ballots were not counted had a history of voting in Marion County
elections. See id ., at 9.

															   All of this suggests that provisional ballots
do not obviate the burdens of getting photo identification. And
even if that were not so, the provisional-ballot option would be
inadequate for a further reason: the indigency exception by
definition offers no relief to those voters who do not consider
themselves (or would not be considered) indigent but as a practical
matter would find it hard, for nonfinancial reasons, to get the
required ID (most obviously the disabled).

															C

															   Indiana’s Voter ID Law thus
threatens to impose serious burdens on the voting right, even if
not “severe” ones, and the next question under Burdick is
whether the number of individuals likely to be affected is
significant as well. Record evidence and facts open to judicial
notice answer yes.

															   Although the District Court found
that petitioners failed to offer any reliable empirical study of
numbers of voters affected, see ante , at 17 (lead
opinion),[ Footnote 21 ] we
may accept that court’s rough calculation that 43,000 voting-age
residents lack the kind of identification card required by
Indiana’s law. See 458 F. Supp. 2d, at 807. The District Court
made that estimate by comparing BMV records reproduced in
petitioners’ statistician’s report with U. S. Census Bureau figures
for Indiana’s voting-age population in 2004, see ibid. ,
and the State does not argue that these raw data are
unreliable.

															   The State, in fact, shows no discomfort with
the District Court’s finding that an “estimated 43,000 individuals”
(about 1% of the State’s voting-age population) lack a qualifying
ID. Brief for Respondents in No. 07–25, p. 25. If the State’s
willingness to take that number is surprising, it may be less so in
light of the District Court’s observation that “several factors …
suggest the percentage of Indiana’s voting age population with
photo identification is actually lower than 99%,” 458 F. Supp.
2d, at 807, n. 43,[ Footnote
22 ] a suggestion in line with national surveys showing roughly
6–10% of voting-age Americans without a state-issued
photo-identification card. See Brief for Petitioners in No. 07–21,
pp. 39–40, n. 17 (citing National Commission on Election
Reform, To Assure Pride and Confidence: Task Force Reports, ch. VI:
Verification of Identity, p. 4 (Aug. 2001),
http://webstorage3.mcpa.virginia.edu/commisions/comm_2001_taskforce.pdf).
We have been offered no reason to think that Indiana does a
substantially better job of distributing IDs than other
States.[ Footnote 23 ]

															   So a fair reading of the data supports the
District Court’s finding that around 43,000 Indiana residents lack
the needed identification, and will bear the burdens the law
imposes. To be sure, the 43,000 figure has to be discounted to some
extent, residents of certain nursing homes being exempted from the
photo identification requirement. 458 F. Supp. 2d, at 786. But
the State does not suggest that this narrow exception could
possibly reduce 43,000 to an insubstantial number.[ Footnote 24 ]

															   The upshot is this. Tens of thousands of
voting-age residents lack the necessary photo identification. A
large proportion of them are likely to be in bad shape
economically, see 472 F. 3d 949, 951 (CA7 2007) (“No doubt
most people who don’t have photo ID are low on the economic
ladder”); cf. Bullock v. Carter , 405 U. S. 134 , 144
(1972) (“[W]e would ignore reality were we not to recognize that
this system falls with unequal weight on voters … according to
their economic status”).[ Footnote 25 ] The Voter ID Law places hurdles in the way
of either getting an ID or of voting provisionally, and they
translate into nontrivial economic costs. There is
accordingly no reason to doubt that a significant number of state
residents will be discouraged or disabled from voting. Cf. 458
F. Supp. 2d, at 823 (“We do not doubt that such individuals
exist somewhere, even though Plaintiffs were unable to locate
them”); 472 F. 3d, at 952 (“No doubt there are at least a few
[whom the law will deter from voting] in Indiana …”); see also ante , at 15 (lead opinion). Petitioners, to be sure,
failed to nail down precisely how great the cohort of discouraged
and totally deterred voters will be, but empirical precision beyond
the foregoing numbers has never been demanded for raising a
voting-rights claim. Cf. Washington State Grange v. Washington State Republican Party , 552 U. S. ___, ___
(2008) (Roberts, C. J., concurring) (slip op., at 4) (“Nothing
in my analysis requires the parties to produce studies regarding
voter perceptions on this score”); Dunn v. Blumstein , 405
U. S. 330 , 335, n. 5 (1972) (“[I]t would be difficult to
determine precisely how many would-be voters throughout the country
cannot vote because of durational residence requirements”); Bullock , supra , at 144 (taking account of “the
obvious likelihood” that candidate filing fees would “fall more
heavily on the less affluent segment of the community, whose
favorites may be unable to pay the large costs”). While of course
it would greatly aid a plaintiff to establish his claims beyond
mathematical doubt, he does enough to show that serious burdens are
likely. Thus, petitioners’ case is
clearly strong enough to prompt more than a cursory examination of
the State’s asserted interests. And the fact that Indiana’s photo
identification requirement is one of the most restrictive in the
country, see Brief for Current and Former State Secretaries of
State as Amici Curiae 27–30 (compiling state
voter-identification statutes); see also Brief for Texas
et al. as Amici Curiae 10–13 (same),[ Footnote 26 ] makes a critical examination
of the State’s claims all the more in order. Cf. Randall v. Sorrell , 548 U. S. 230 , 253
(2006) (plurality opinion) (citing as a “danger sig[n]” that
“contribution limits are substantially lower than … comparable
limits in other States,” and concluding that “[w]e consequently
must examine the record independently and carefully to determine
whether [the] limits are ‘closely drawn’ to match the State’s
interests”); id. , at 284, 288 (Souter, J., dissenting)
(finding that deference was appropriate on the reasoning that
limits were “consistent with limits set by the legislatures of many
other States, all of them with populations larger than Vermont’s,”
and that “[t]he Legislature of Vermont evidently tried to account
for the realities of campaigning in Vermont”). III Because the lead
opinion finds only “limited” burdens on the right to vote, see ante , at 18, it avoids a hard look at the State’s claimed
interests. See ante , at 7–13. But having found the Voter
ID Law burdens far from trivial, I have to make a rigorous
assessment of “ ‘the precise interests put forward by the
State as justifications for the burden imposed by its rule,’ [and]
‘the extent to which those interests make it necessary to burden
the plaintiff’s rights.’ ” Burdick , 504 U. S., at 434
(quoting Anderson , 460 U. S., at 789). As this quotation
from Burdick indicates, the interests claimed to justify
the regulatory scheme are subject to discount in two distinct ways.
First, the generalities raised by the State have to be shaved down
to the precise “aspect[s of claimed interests] addressed by the law
at issue.” California Democratic Party v. Jones , 530 U. S. 567 ,
584 (2000) (emphasis omitted); see ibid. (scrutiny of
state interests “is not to be made in the abstract, by asking
whether [the interests] are highly significant values; but rather
by asking whether the aspect of [those interests]
addressed by the law at issue is highly significant” (emphasis in
original)). And even if the State can show particularized interests
addressed by the law, those interests are subject to further
discount depending on “the extent to which [they] make it necessary
to burden the plaintiff’s rights.” Burdick , supra , at 434 (internal quotation marks
omitted). As the lead opinion sees it,
the State has offered four related concerns that suffice to justify
the Voter ID Law: 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. See ante , at 7–13. On closer look,
however, it appears that the first two (which are really just one)
can claim modest weight at best, and the latter two if anything
weaken the State’s case. A The lead
opinion’s discussion of the State’s reasons begins with the State’s
asserted interests in “election modernization,” ante , at
8–10, and in combating voter fraud, see ante , at 11–13.
Although these are given separate headings, any line drawn between
them is unconvincing; as I understand it, the “effort to modernize
elections,” Brief for Respondents in No. 07–25, p. 12, is not
for modernity’s sake, but to reach certain practical (or political)
objectives.[ Footnote 27 ] In
any event, if a proposed modernization were in fact aimless, if it
were put forward as change for change’s sake, a State could not
justify any appreciable burden on the right to vote that might
ensue; useless technology has no constitutional value. And in fact
that is not the case here. The State says that it adopted the ID
law principally to combat voter fraud, and it is this claim, not
the slogan of “election modernization,” that warrants
attention. 1 There is no
denying the abstract importance, the compelling nature, of
combating voter fraud. See Purcell , 549 U. S., at 4
(acknowledging “the State’s compelling interest in preventing voter
fraud”); cf. Eu v. San Francisco County Democratic
Central Comm. , 489 U. S. 214 , 231
(1989) (“A State indisputably has a compelling interest in
preserving the integrity of its election process”). But it takes
several steps to get beyond the level of abstraction
here. To begin with,
requiring a voter to show photo identification before casting a
regular ballot addresses only one form of voter fraud: in-person
voter impersonation. The photo ID requirement leaves untouched the
problems of absentee-ballot fraud, which (unlike in-person voter
impersonation) is a documented problem in Indiana, see 458
F. Supp. 2d, at 793; of registered voters voting more than
once (but maintaining their own identities) in different counties
or in different States; of felons and other disqualified
individuals voting in their own names; of vote buying; or, for that
matter, of ballot-stuffing, ballot miscounting, voter intimidation,
or any other type of corruption on the part of officials
administering elections. See Brief for Brennan Center for Justice
et al. as Amici Curiae 7. And even the State’s interest
in deterring a voter from showing up at the polls and claiming to
be someone he is not must, in turn, be discounted for the fact that
the State has not come across a single instance of in-person voter
impersonation fraud in all of Indiana’s history. See 458
F. Supp. 2d, at 792–793; see also ante , at 11–13
(lead opinion). Neither the District Court nor the Indiana General
Assembly that passed the Voter ID Law was given any evidence
whatsoever of in-person voter impersonation fraud in the State. See
458 F. Supp. 2d, at 793. This absence of support is consistent
with the experience of several veteran poll watchers in Indiana,
each of whom submitted testimony in the District Court that he had
never witnessed an instance of attempted voter impersonation fraud
at the polls. Ibid. It is also consistent with the dearth
of evidence of in-person voter impersonation in any other part of
the country. See ante , at 11, n. 11 (lead opinion)
(conceding that there are at most “scattered instances of in-person
voter fraud”); see also Brief for Brennan Center for Justice, supra , at 11–25, 25 (demonstrating that “the national
evidence—including the very evidence relied on by the courts
below—suggests that the type of voting fraud that may be remedied
by a photo ID requirement is virtually nonexistent: the ‘problem’
of voter impersonation is not a real problem at all”).[ Footnote 28 ] The State responds to the want
of evidence with the assertion that in-person voter impersonation
fraud is hard to detect. But this is like saying the “man who
wasn’t there” is hard to spot,[ Footnote 29 ] 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. The answer
seems to be no; there is reason to think that “impersonation of
voters is … the most likely type of fraud to be discovered.” U. S.
Election Assistance Commission, Election Crimes: An Initial Review
and Recommendations for Future Study 9 (Dec. 2006),
http://www.eac.gov/clearinghouse/docs/reports-and-surveys-2006electioncrimes.pdf/attachment_download/file
(hereinafter EAC Report). This is in part because an individual who
impersonates another at the polls commits his fraud in the open,
under the scrutiny of local poll workers who may well recognize a
fraudulent voter when they hear who he claims to be. See Brief for
Respondents in No. 07–21, p. 6 (“[P]recinct workers may
recognize an imposter, and precinct election workers have the
authority to challenge persons appearing to vote if the election
board member ‘is not satisfied that a person who offers to vote is
the person who the person represents the person to be’ ”
(quoting Ind. Code Ann. §3–11–8–27 (West 2006))). The relative ease of
discovering in-person voter impersonation is also owing to the odds
that any such fraud will be committed by “organized groups such as
campaigns or political parties” rather than by individuals acting
alone. L. Minnite & D. Callahan, Securing the Vote: An Analysis
of Election Fraud 14 (2003). It simply is not worth it for
individuals acting alone to commit in-person voter impersonation,
which is relatively ineffectual for the foolish few who may commit
it. If an imposter gets caught, he is subject to severe criminal
penalties. See, e.g., Ind. Code Ann. §3–14–2–9 (making it
a felony “knowingly [to] vot[e] or offe[r] to vote at an election
when the person is not registered or authorized to vote”);
§3–14–2–11 (with certain exceptions, “a person who knowingly votes
or offers to vote in a precinct except the one in which the person
is registered and resides” commits a felony); §3–14–2–12(1) (making
it a felony “knowingly [to] vot[e] or mak[e] application to vote in
an election in a name other than the person’s own”); §3–14–2–12(2)
(a person who, “having voted once at an election, knowingly applies
to vote at the same election in the person’s own name or any other
name” commits a felony); see also 42 U. S. C. §1973i(e)(1)
(any individual who “votes more than once” in certain federal
elections “shall be fined not more than $10,000 or imprisoned not
more than five years, or both”). And even if he succeeds, the
imposter gains nothing more than one additional vote for his
candidate. See EAC Report 9 (in-person voter impersonation “is an
inefficient method of influencing an election”); J. Levitt, The
Truth about Voter Fraud 7 (2007) (“[F]raud by individual voters is
a singularly foolish and ineffective way to attempt to win an
election. Each act of voter fraud in connection with a federal
election risks five years in prison and a $10,000 fine, in addition
to any state penalties. In return, it yields at most one
incremental vote. That single extra vote is simply not worth the
price” (footnote omitted)); cf. 472 F. 3d, at 951 (“[A] vote
in a political election rarely has any instrumental value,
since elections for political office at the state or federal level
are never decided by just one vote” (emphasis in
original)). In sum, fraud by individuals
acting alone, however difficult to detect, is unlikely. And while
there may be greater incentives for organized groups to engage in
broad-gauged in-person voter impersonation fraud, see Minnite &
Callahan, supra , at 20, it is also far more difficult to
conceal larger enterprises of this sort. The State’s argument about
the difficulty of detecting the fraud lacks real force. 2 Nothing else the
State has to say does much to bolster its case. The State argues,
for example, that even without evidence of in-person voter
impersonation in Indiana, it is enough for the State to show that
“opportunities [for such fraud] are transparently obvious in
elections without identification checks,” Brief for Respondents in
No. 07–25, p. 54. Of course they are, but Indiana elections before
the Voter ID Law were not run “without identification checks”; on
the contrary, as the Marion County Election Board informs us,
“[t]ime-tested systems were in place to detect in-person voter
impersonation fraud before the challenged statute was enacted,”
Brief for Respondents in No. 07–21, p. 6. These included
hiring poll workers who were precinct residents familiar with the
neighborhood, and making signature comparisons, each effort being
supported by the criminal provisions mentioned before. Id. , at 6–8. For that matter,
the deterrence argument can do only so much work, since photo
identification is itself hardly a failsafe against impersonation.
Indiana knows this, and that is why in 2007 the State began to
issue redesigned driver’s licenses with digital
watermarking.[ Footnote 30 ]
The State has made this shift precisely because, in the words of
its BMV, “visual inspection is not adequate to determine the
authenticity” of driver’s licenses. See Indiana BMV, supra , n. 30. Indeed, the BMV explains that the digital
watermarks (which can be scanned using equipment that, so far,
Indiana does not use at polling places) is needed to “tak[e] the
guesswork out of inspection.” Ibid .[ Footnote 31 ] So, at least until polling places
have the machines and special software to scan the new driver’s
licenses, and until all the licenses with the older designs expire
(the licenses issued after 2006 but before the 2007 redesigning are
good until 2012, see 458 F. Supp. 2d, at 791), Indiana’s law
does no more than assure that any in-person voter fraud will take
place with fake IDs, not attempted signature forgery. Despite all this, I will
readily stipulate that a State has an interest in responding to the
risk (however small) of in-person voter impersonation. See ante , at 12 (lead opinion). I reach this conclusion, like
others accepted by the Court, because “ ‘[w]here a legislature
has significantly greater institutional expertise, as, for example,
in the field of election regulation, the Court in practice defers
to empirical legislative judgments.’ ” Randall , 548
U. S., at 285 (Souter, J., dissenting) (quoting Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 402 (2000) (Breyer, J.,
concurring)). Weight is owed to the legislative judgment as such.
But the ultimate valuation of the particular interest a State
asserts has to take account of evidence against it as well as
legislative judgments for it (certainly when the law is one of the
most restrictive of its kind, see n. 26, supra ), and on
this record it would be unreasonable to accord this assumed state
interest more than very modest significance.[ Footnote 32 ] 3 The antifraud
rationale is open to skepticism on one further ground, what Burdick spoke of as an assessment of the degree of
necessity for the State’s particular course of action. Two points
deserve attention, the first being that the State has not even
tried to justify its decision to implement the photo identification
requirement immediately on passage of the new law. A phase-in
period would have given the State time to distribute its newly
designed licenses, and to make a genuine effort to get them to
individuals in need, and a period for transition is exactly what
the Commission on Federal Election Reform, headed by former
President Carter and former Secretary of State Baker, recommended
in its report. See Building Confidence in U. S. Elections §2.5
(Sept. 2005), App. 136, 140 (hereinafter Carter-Baker Report) (“For
the next two federal elections, until January 1, 2010, in states
that require voters to present ID 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”).
During this phase-in period, the report said, States would need to
make “efforts to ensure that all voters are provided convenient
opportunities to obtain” the required identification. Id. ,
at 141. The former President and former Secretary of State
explained this recommendation in an op-ed essay: “Yes, we are
concerned about the approximately 12 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 ID’s that meet federal standards. States
should open new offices, use social service agencies and deploy
mobile offices to register voters. By connecting ID’s to
registration, voting participation will be expanded.” Carter &
Baker, Voting Reform is in the Cards, N. Y. Times, Sept. 23,
2005, p. A19. Although Indiana claims to have
adopted its ID requirement relying partly on the Carter-Baker
Report, see Brief for Respondents in No. 07–25, pp. 5, 13, 49;
see also ante , at 10 (lead opinion), the State
conspicuously rejected the Report’s phase-in recommendation aimed
at reducing the burdens on the right to vote, and just as
conspicuously fails even to try to explain why. What is left of the State’s
claim must be downgraded further for one final reason: regardless
of the interest the State may have in adopting a photo
identification requirement as a general matter, that interest in no
way necessitates the particular burdens the Voter ID Law imposes on
poor people and religious objectors. Individuals unable to get
photo identification are forced to travel to the county seat every
time they wish to exercise the franchise, and they have to get
there within 10 days of the election. See supra , at 8–10.
Nothing about the State’s interest in fighting voter fraud
justifies this requirement of a post-election trip to the county
seat instead of some verification process at the polling
places. In briefing this Court, the
State responds by pointing to an interest in keeping lines at
polling places short. See Brief for Respondents in No. 07–25, p.
58. It warns that “[i]f election workers—a scarce resource in any
election—must attend to the details of validating provisional
ballots, voters may have to wait longer to vote,” and it assures us
that “[n]othing deters voting so much as long lines at the polls.” Ibid . But this argument fails on its own terms, for
whatever might be the number of individuals casting a provisional
ballot, the State could simply allow voters to sign the indigency
affidavit at the polls subject to review there after the
election.[ Footnote 33 ] After
all, the Voter ID Law already requires voters lacking photo
identification to sign, at the polling site, an affidavit attesting
to proper registration. See 458 F. Supp. 2d, at
786. Indeed, the State’s argument
more than fails; it backfires, in implicitly conceding that a
not-insignificant number of individuals will need to rely on the
burdensome provisional-ballot mechanism. What is more, as the
District Court found, the Voter ID Law itself actually increases
the likelihood of delay at the polls. Since any minor discrepancy
between a voter’s photo identification card and the registration
information may lead to a challenge, “the opportunities for
presenting challenges ha[ve] increased as a result of the photo
identification requirements.” Id. , at 789; cf. 472
F. 3d, at 955 (Evans, J., dissenting) (“The potential for
mischief with this law is obvious. Does the name on the ID
‘conform’ to the name on the voter registration list? If the last
name of a newly married woman is on the ID but her maiden name is
on the registration list, does it conform? If a name is misspelled
on one—Schmit versus Schmitt—does it conform? If a ‘Terence’
appears on one and a shortened ‘Terry’ on the other, does it
conform?”). B The State’s
asserted interests in modernizing elections and combating fraud are
decidedly modest; at best, they fail to offset the clear inference
that thousands of Indiana citizens will be discouraged from voting.
The two remaining justifications, meanwhile, actually weaken the
State’s case. The lead opinion
agrees with the State that “the inflation of its voter rolls is
further support for its enactment of” the Voter ID Law. Ante , at 12. This is a puzzling conclusion, given the
fact, which the lead opinion notes, that the National Government
filed a complaint against Indiana, containing this
allegation: “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.” App.
309, 312. The Federal Government and the
State agreed to settle the case, and a consent decree and order
have been entered, see ante , at 12–13, requiring Indiana
to fulfill its list-maintenance obligations under §8 of the
National Voter Registration Act of 1993, 107 Stat. 82, 42 U.
S. C. §1973gg–6. How any of this can justify
restrictions on the right to vote is difficult to say. The State is
simply trying to take advantage of its own wrong: if it is true
that the State’s fear of in-person voter impersonation fraud arises
from its bloated voter checklist, the answer to the problem is in
the State’s own hands. The claim that the State has an interest in
addressing a symptom of the problem (alleged impersonation) rather
than the problem itself (the negligently maintained bloated rolls)
is thus self-defeating; it shows that the State has no justifiable
need to burden the right to vote as it does, and it suggests that
the State is not as serious about combating fraud as it claims to
be.[ Footnote 34 ] The State’s final
justification, its interest in safeguarding voter confidence,
similarly collapses. The problem with claiming this interest lies
in its connection to the bloated voter rolls; the State has come up
with nothing to suggest that its citizens doubt the integrity of
the State’s electoral process, except its own failure to maintain
its rolls. The answer to this problem is not to burden the right to
vote, but to end the official negligence. It should go without saying
that none of this is to deny States’ legitimate interest in
safeguarding public confidence. The Court has, for example,
recognized that fighting perceptions of political corruption
stemming from large political contributions is a legitimate and
substantial state interest, underlying not only campaign finance
laws, but bribery and antigratuity statutes as well. See Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 390 (2000). But the
force of the interest depends on the facts (or plausibility of the
assumptions) said to justify invoking it. See id. , at 391
(“The quantum of empirical evidence needed to satisfy heightened
judicial scrutiny of legislative judgments will vary up or down
with the novelty and plausibility of the justification raised”).
While we found in Nixon that “there is little reason to
doubt that sometimes large contributions will work actual
corruption of our political system, and no reason to question the
existence of a corresponding suspicion among voters,” id. ,
at 395, there is plenty of reason to be doubtful here, both about
the reality and the perception. It is simply not plausible to
assume here, with no evidence of in-person voter impersonation
fraud in a State, and very little of it nationwide, that a public
perception of such fraud is nevertheless “inherent” in an election
system providing severe criminal penalties for fraud and mandating
signature checks at the polls. Cf. id. , at 390 (“[T]he
perception of corruption [is] ‘inherent in a regime of large
individual financial contributions’ to candidates for public
office” (quoting Buckley v. Valeo , 424 U. S. 1 , 27 (1976) (per curiam) ). C Without a shred
of evidence that in-person voter impersonation is a problem in the
State, much less a crisis, Indiana has adopted one of the most
restrictive photo identification requirements in the country. The
State recognizes that tens of thousands of qualified voters lack
the necessary federally issued or state-issued identification, but
it insists on implementing the requirement immediately, without
allowing a transition period for targeted efforts to distribute the
required identification to individuals who need it. The State
hardly even tries to explain its decision to force indigents or
religious objectors to travel all the way to their county seats
every time they wish to vote, and if there is any waning of
confidence in the administration of elections it probably owes more
to the State’s violation of federal election law than to any
imposters at the polling places. It is impossible to say, on this
record, that the State’s interest in adopting its signally
inhibiting photo identification requirement has been shown to
outweigh the serious burdens it imposes on the right to
vote. If more were
needed to condemn this law, our own precedent would provide it, for
the calculation revealed in the Indiana statute crosses a line when
it targets the poor and the weak. Cf. Anderson v. Celebrezze , 460 U. S. 780 , 793 (1983) (“[I]t is
especially difficult for the State to justify a restriction that
limits political participation by an identifiable political group
whose members share a particular viewpoint, associational
preference, or economic status”). If the Court’s decision in Harper v. Virginia Bd. of Elections , 383 U. S. 663 (1966), stands for
anything, it is that being poor has nothing to do with being
qualified to vote. Harper made clear that “[t]o introduce
wealth or payment of a fee as a measure of a voter’s qualifications
is to introduce a capricious or irrelevant factor.” Id. ,
at 668. The State’s requirements here, that people without cars
travel to a motor vehicle registry and that the poor who fail to do
that get to their county seats within 10 days of every election,
likewise translate into unjustified economic burdens uncomfortably
close to the outright $1.50 fee we struck down 42 years ago. Like
that fee, the onus of the Indiana law is illegitimate just because
it correlates with no state interest so well as it does with the
object of deterring poorer residents from exercising the
franchise. *  *  * The Indiana Voter
ID Law is thus unconstitutional: the state interests fail to
justify the practical limitations placed on the right to vote, and
the law imposes an unreasonable and irrelevant burden on voters who
are poor and old. I would vacate the judgment of the Seventh
Circuit, and remand for further proceedings. Footnote
1 Senate Enrolled Act No. 483,
2005 Ind. Acts p. 2005. Footnote
2 I agree with the lead opinion
that the petitioners in No. 07–25 have standing and that we
therefore need not determine whether the remaining petitioners also
have standing. See ante , at 5, n. 7. Footnote
3 Under Indiana’s law, an ID
does not qualify as proof of identification unless it “satisfies
all [of] 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 of 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.” Ind. Code Ann.
§3–5–2–40.5 (West 2006). Footnote
4 The State asserts that the
elderly and disabled are adequately accommodated through their
option to cast absentee ballots, and so any burdens on them are
irrelevant. See Brief for Respondents in No. 07–25, p. 41. But as
petitioners’ amici AARP and the National Senior Citizens
Law Center point out, there are crucial differences between the
absentee and regular ballot. Brief for AARP et al. as Amici Curiae 12–16. Voting by absentee ballot leaves an
individual without the possibility of receiving assistance from
poll workers, and thus increases the likelihood of confusion and
error. More seriously, as the Supreme Court of Indiana has
recognized, Indiana law “treats absentee voters differently from
the way it treats Election Day voters,” in the important sense that
“an absentee ballot may not be recounted in situations where
clerical error by an election officer rendered it invalid.” Horseman v. Keller , 841 N. E. 2d 164, 171
(2006). The State itself notes that “election officials routinely
reject absentee ballots on suspicion of forgery.” Brief for
Respondents in No. 07–25, p. 62. The record indicates that voters
in Indiana are not unaware of these risks. One elderly affiant in
the District Court testified: “I don’t trust [the absentee]
system… . Because a lot of soldiers vote like that and their
votes wasn’t counted in the last election according to what I read,
absentee.” App. 209 (deposition of David Harrison). It is one thing (and a
commendable thing) for the State to make absentee voting available
to the elderly and disabled; but it is quite another to suggest
that, because the more convenient but less reliable absentee ballot
is available, the State may freely deprive the elderly and disabled
of the option of voting in person. Footnote
5 Under Indiana law, county
executives must locate a polling place within five miles of the
closest boundary of each voting precinct, and, with limited
exceptions, no precinct may cover more than 1,200 active voters at
the time it is established. See Brief for Respondents in No. 07–21,
p. 3 (citing Ind. Code Ann. §§3–11–8–3(b), 3–11–1.5–3). The
result is that the number of polling places tends to track the
number of voting precincts in a county. In Henry County, for
example, there are 42 active precincts, see n. 6, infra , and 42 polling places have been approved for the
2008 elections, see n. 13, infra . Footnote
6 See also Count of Active
Precincts by County, online at
http://www.in.gov/sos/pdfs/Precincts_by_County_and_State_022706.pdf
(all Internet materials as visited Apr. 21, 2008, and available in
Clerk of Court’s case file). Footnote
7 See Marion County License
Branches, http://www.in.gov/bmv/ 3134.htm. Footnote
8 See Lake County,
http://www.in.gov/bmv/3150.htm. Footnote
9 See Allen County,
http://www.in.gov/bmv/2954.htm. Footnote
10 See Brown County,
http://www.in.gov/bmv/3302.htm. Footnote
11 See
http://www.co.fayette.in.us/2007%20polling_locations_munic.
htm. Footnote
12 See Fayette County,
http://www.in.gov/bmv/3246.htm. Footnote
13 See News Release, Henry
County, Indiana, Polling Places Approved for the 2008 Elections,
http://www.henryco.net/cm/node/52. Footnote
14 The travel burdens might, in
the future, be reduced to some extent by Indiana’s commendable
“BMV2You” mobile license branch, which will travel across the State
for an average of three days a week, and provide BMV services
(including ID services). See http:// www.in.gov/bmv/3554.htm. The
program does not count in my analysis, however, because the program
was only recently opened in August 2007, see Indiana BMV Opens
License Branch at State Fair,
http://www.in.gov/newsroom.htm?detailContent=93_10400.htm, and its
long-term service schedule has yet to be determined. Footnote
15 Indiana Public Transit:
Annual Report 2006, p. 29, http://
www.in.gov/indot/files/INDOT_2006.pdf (hereinafter Annual Report).
The 21 counties with no public transportation, according to the
study, are: Adams, Blackford, Brown, Carroll, Clay, De Kalb,
Gibson, Jennings, Lagrange, Parke, Perry, Posey, Putnam, Rush,
Spencer, Steuben, Tipton, Vermillion, Warren, Warrick, and Whitley
Counties. See ibid. A Website of the American Public Transportation
Association, which compiles public transit information across the
States, confirms that each of those 21 counties lacks any public
transportation offerings, and in fact adds another 13 counties to
this category: Boone, Decatur, Fayette, Fulton, Hancock, Hendricks,
Huntington, Miami, Morgan, Noble, Pike, Shelby, and Wells. See
Transit Systems in Indiana,
http://www.publictransportation.org/systems/state.asp?state=IN#A44.
The discrepancy appears to arise, in part, from the fact that the
American Public Transportation Association has not counted demand
response systems that have been established in at least 6 of these
13 counties. See Annual Report 36, 50, 56, 96, 110, 144. Footnote
16 In 2000, approximately 9% of
Indiana’s population lived within 1 of these 21 counties. See
County and City Extra: Special Decennial Census Edition 169, 176
(D. Gaquin & K. DeBrandt eds. 2002). Footnote
17 See Department of State, How
to Apply in Person for a Passport,
http://travel.state.gov/passport/get/first/first_830.html;
Department of State, Passport Fees (Feb. 1, 2008),
http://travel.state.gov/passport/ get/fees/fees_837.html (total
fees of $100 for a passport book and $45 for a passport card for
individuals 16 and older). Footnote
18 The lead opinion notes that
“the record does not provide even a rough estimate of how many
indigent voters lack copies of their birth certificates.” Ante , at 19, n. 20. But the record discloses no
reason to think that any appreciable number of poor voters would
need birth certificates absent the Voter ID Law, and no reason to
believe that poor people would spend money to get them if they did
not need them. Footnote
19 To vote by provisional
ballot, an individual must (at the circuit court clerk’s office)
sign an affidavit affirming that she is “indigent” and “unable to
obtain proof of identification without payment of a fee.” Ind. Code
Ann. §3–11.7–5–2.5(c)(2)(A). Indiana law does not define the key
terms “indigent” or “unable,” but I will assume for present
purposes that the Indiana Supreme Court will eventually construe
these terms broadly, so that the income threshold for indigency is
at least at the federal poverty level, and so that the exception
covers even individuals who are facing only short-term financial
difficulties. Footnote
20 Indiana law allows voters to
cast a provisional ballot at the county clerk’s office starting 29
days prior to election day until noon of the day prior to election
day, see Ind. Code Ann. §3–11.7–5–2.5, and this might enable some
voters to make only one burdensome trip to the county seat. But for
the voters who show up at the polls to vote and are there told that
they lack the photo identification needed to cast a regular ballot,
the Voter ID Law effectively forces them to make two
trips. Footnote
21 Much like petitioners’
statistician, the BMV “has not been able to determine the
approximate number of Indiana residents of voting age who are
without an Indiana driver’s license or identification card,” 458
F. Supp. 2d 775, 791 (SD Ind. 2006), but the BMV does
acknowledge “that there are persons who do not currently have [the
required ID] and who are, or who will be, eligible to vote at the
next election,” ibid . Footnote
22 The District Court
explained: “[O]ur simple comparison of raw numbers does not
take into account: individuals who have died but whose Indiana
driver’s license or identification cards have not expired;
individuals who have moved outside the state and no longer consider
themselves Indiana residents but who still retain a valid Indiana
license or identification card; individuals who have moved into
Indiana and now consider themselves Indiana residents but have not
yet obtained an Indiana license or identification; and individuals,
such as students, who are residing in Indiana temporarily, are
registered to vote in another state, but have obtained an Indiana
license or identification.” Id. , at 807, n. 43. The District Court also
identified three factors that, in its view, might require
deductions of the 43,000 figure. First, the District Court noted
that BMV records do not cover all forms of identification that may
be used to vote under the Voter ID Law ( e.g., federal
photo identification, such as a passport). This is a valid
consideration, but is unlikely to overcome the additions that must
be made for the various factors listed above. Second, the court
noted that the BMV records do not account for the exceptions to the
photo identification requirement (such as the indigency and
absentee-ballot exceptions). This factor does not warrant a
deduction of the 43,000 number because, as I have argued, the
indigency exception imposes serious burdens of its own, see supra , at 8–10, and the absentee-ballot exception is not a
wholly adequate substitute for voting in person, see n. 4, supra . Finally, the District Court noted that many
individuals are not registered to vote. For reasons I lay out in
note 24, infra , I am not convinced that this fact is
relevant at all. Footnote
23 Although the lead opinion
expresses confidence that the percentage of voters without the
necessary photo ID will steadily decrease, see ante , at 4,
n. 6, and suggests that the number may already have dropped,
see ante , at 18, n. 20, there is reason to be less
sanguine. See ACLU Sues To Halt License Revocation, Fort Wayne J.
Gazette, Feb. 9, 2008, p. 3C (“The American Civil Liberties Union
is suing the state to prevent the possible revocation of up to
56,000 driver’s licenses that don’t match information in a Social
Security database. Many of the mismatches were created by
typographical errors or by people getting married and changing
their last names, the [BMV] said last week when it announced it had
sent warning letters to about 206,000 people in Indiana”); see also
Dits, Court Date Set for Bid To Stop BMV, South Bend Tribune, Feb.
21, 2008; Who To Blame in Name Game? Many Caught in Name Game;
Merging BMV, Social Security Databases Forcing Many To Hire
Lawyers, The Post-Tribune, Jan. 8, 2008, p. A5; Snelling, Name
Issue Blocks License, Merrillville Post-Tribune, Jan. 7, 2008, p.
A6. Footnote
24 The State does imply that we
should further discount the 43,000 estimate to exclude citizens who
are not registered to vote, or who are registered but not planning
to vote. See Brief for Respondents in No. 07–25, p. 25; see
also ante , at 17 (lead opinion) (“[T]he evidence in the
record does not provide us with the number of registered voters
without photo identification”). But that argument is flatly
contradicted by this Court’s settled precedent. As our cases have
recognized, disfranchisement is disfranchisement, whether or not
the disfranchised voter would have voted if given the choice. That
is why in Dunn v. Blumstein , 405
U. S. 330 (1972), the Court did not ask whether any significant
number of individuals deprived of the right to vote by durational
residence requirements would actually have chosen to vote. And in Harper v. Virginia Bd. of Elections , 383 U. S. 663 (1966), the Court did
not pause to consider whether any of the qualified voters deterred
by the $1.50 poll tax would have opted to vote if there had been no
fee. Our cases make clear that the Constitution protects an
individual’s ability to vote, not merely his decision to do
so. Footnote
25 Studies in other States
suggest that the burdens of an ID requirement may also fall
disproportionately upon racial minorities. See Overton, Voter
Identification, 105 Mich. L. Rev. 631, 659 (2007) (“In 1994,
the U. S. Department of Justice found that African-Americans in
Louisiana were four to five times less likely than white residents
to have government-sanctioned photo identification”); id. ,
at 659–660 (describing June 2005 study by the Employment and
Training Institute at the University of Wisconsin-Milwaukee, which
found that while 17% of voting-age whites lacked a valid driver’s
license, 55% of black males and 49% of black females were
unlicensed, and 46% of Latino males and 59% of Latino females were
similarly unlicensed). Footnote
26 Unlike the Help America Vote
Act of 2002, 116 Stat. 1666, 42 U. S. C. §5301 et
seq . (2000 ed., Supp. V), which generally requires proof of
identification but allows for a variety of documents to qualify,
see ante , at 8–9 (lead opinion), Indiana accepts only
limited forms of federally issued or state-issued photo
identification, see n. 3, supra , and does not allow
individuals lacking the required identification to cast a regular
ballot at the polls. Only one other State, Georgia, currently
restricts voters to the narrow forms of government-issued photo
identification. See Ga. Code Ann. §21–2–417 (Supp. 2007). But a
birth certificate is not needed to get a Georgia voter
identification card. See Ga. Code Ann. §21–2–417.1 (Supp. 2007);
Ga. Comp. Rules & Regs., Rule 183–1–20.01 (2006). Missouri’s Legislature passed
a restrictive photo identification law comparable to Indiana’s, but
the Missouri Supreme Court struck it down as violative of the state
constitution. Weinschenk v. State , 203 S. W.
3d 201 (2006) (per curiam) . Florida requires photo
identification, but permits the use of several forms, including a
debit or credit card; military identification; student
identification; retirement center identification; neighborhood
center identification; and public assistance identification. See
Fla. Stat. Ann. §101.043(1) (West Supp. 2008). Moreover, a Florida
voter who lacks photo identification may cast a provisional ballot,
and that ballot will be counted so long as the signature on the
ballot matches the one on the voter’s registration. §§101.043(2),
101.048. All other States that require
identification at the polls either allow voters to identify
themselves using a variety of documents, see Ala. Code §17–9–30
(2007); Alaska Stat. §15.15.225 (2006); Ariz. Rev. Stat. Ann.
§16–579 (West 2006); Ark. Code Ann. §7–5–305(a)(8) (2007); Colo.
Rev. Stat. §§1–1–104(19.5), 1–7–110 (2007); Ky. Rev. Stat. Ann.
§117.227 (Lexis 2004); Mont. Code Ann. §13–13–114 (2007);
N. M. Stat. Ann. §§1–1–24, 1–12–7.1, as amended by 2008
N. M. Laws ch. 59; §1–12–8 (Cum. Supp. 2007); Ohio Rev. Code
Ann. §§3503.16(B)(1), 3505.18 (Lexis Supp. 2007); S. C. Code
Ann. §§7–5–125, 7–13–710 (Cum. Supp. 2007); Tenn. Code Ann.
§2–7–112 (2003); Texas Elec. Code Ann. §§63.001–63.009 (West 2003
and Supp. 2007); §63.0101 (West Supp. 2007); Wash. Rev. Code
§29A.44.205 (2006), or allow voters lacking identification to cast
a regular ballot upon signing an affidavit (or providing additional
identifying information), see Conn. Gen. Stat. §9–261 (2007); Del.
Code Ann., Tit. 15, §4937 (2007); Haw. Rev. Stat. §11–136 (2006
Cum. Supp.); La. Rev. Stat. Ann. §18:562 (West Supp. 2008); Mich.
Comp. Laws Ann. §168.523(1) (West Supp. 2007); N. D. Cent.
Code Ann. §16.1–05–07 (Lexis Supp. 2007); S. D. Codified Laws
§§12–18–6.1, 12–18–6.2 (2004); Va. Code Ann. §24.2–643 (Lexis
2006). Footnote
27 See generally R. Saltman, The
History and Politics of Voting Technology: In Quest of Integrity
and Public Confidence (2006) (tracing the history of changes in
methods of voting in the United States, and the social and
political considerations behind them). Footnote
28 The lack of evidence of
in-person voter impersonation fraud is not for failure to search.
See, e.g., Lipton & Urbina, In 5-Year Effort, Scant
Evidence of Voter Fraud, N. Y. Times, Apr. 12, 2007, p. A1
(“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”). Footnote
29 “As I was going up the stair
/ I met a man who wasn’t there.” H. Mearns, Antigonish, reprinted
in Best Remembered Poems 107 (M. Gardner ed. 1992). Footnote
30 See Indiana BMV, Digital
Drivers License: Frequently Asked Questions, “What is a digital
watermark and why is Indiana incorporating it into their driver
license?”, http://www.in.gov/bmv/3382.htm. Footnote
31 In the words of Indiana’s
Governor, Mitch Daniels: “ ‘Not very long ago, Indiana
driver’s licenses were a late-night talk show joke [because of] the
ease of their fraudulent issuance and also their duplication
… . [The new design] will make particularly their duplication
dramatically more difficult.’ ” Udell, Digital Driver’s
Licenses Designed To Stem ID Theft, Evansville Courier, June 7,
2007, p. B6. Footnote
32 On such flimsy evidence of
fraud, it would also ignore the lessons of history to grant the
State’s interest more than modest weight, as the interest in
combating voter fraud has too often served as a cover for
unnecessarily restrictive electoral rules. See F. Ogden, The Poll
Tax in the South 9 (1958) (“In Arkansas and Texas, the argument was
frequently presented that a poll tax payment prerequisite would
purify elections by preventing repeaters and floaters from
voting”); see also Brief for Historians and Other Scholars as Amici Curiae 4–15 (detailing abuses); R. Hayduk,
Gatekeepers to the Franchise: Shaping Election Administration in
New York 36 (2005) (“In both historical and contemporary contexts
certain groups have had an interest in alleging fraud and thereby
shaping electoral rules and practices in a restrictive direction,
and other groups have had an opposite interest”). Footnote
33 Florida has accommodated
voters in this manner. In Florida a voter who casts a provisional
ballot may have that vote counted if the voter’s signature on the
provisional-ballot certification matches the signature on the
voter’s registration. See Fla. Stat. Ann. §§101.043, 101.048. The
voter is not required to make a second trip to have her provisional
ballot counted. Footnote
34 The voting-rolls argument
also suggests that it would not be so difficult to detect in-person
voter fraud after all. If it is true that practitioners of fraud
are most likely to vote in the name of registered voters whom they
know to have died or left the jurisdiction, then Indiana could
simply audit its voting records to examine whether, and how often,
in-person votes were cast using these invalid
registrations. BREYER, J., DISSENTING CRAWFORD V. MARION COUNTY ELECTION BD. 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NOS. 07-21 AND 07-25 WILLIAM CRAWFORD, et al., PETITIONERS

															07–21 v. MARION COUNTY ELECTION BOARD
et al. INDIANA DEMOCRATIC PARTY, et al. ,
PETITIONERS

															07–25 v. TODD ROKITA, INDIANA SECRETARY OF STATE,
et al. on writs of certiorari to the united states
court of appeals for the seventh circuit [April 28, 2008] Justice Breyer ,
dissenting.

															   Indiana’s statute requires
registered voters to present photo identification at the polls. It
imposes a burden upon some voters, but it does so in order to
prevent fraud, to build confidence in the voting system, and
thereby to maintain the integrity of the voting process. In
determining whether this statute violates the Federal Constitution,
I would balance the voting-related interests that the statute
affects, asking “whether the statute burdens any one such interest
in a manner out of proportion to the statute’s salutary effects
upon the others (perhaps, but not necessarily, because of the
existence of a clearly superior, less restrictive alternative).” Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 402
(2000) (Breyer, J., concurring); ante, at 6–7 (lead
opinion) (similar standard); ante , at 2–3 (Souter, J.,
dissenting) (similar standard). Applying this standard, I believe
the statute is unconstitutional because it imposes a
disproportionate burden upon those eligible voters who lack a
driver’s license or other statutorily valid form of photo ID. Like Justice Stevens, I give weight
to the fact that a national commission, chaired by former President
Jimmy Carter and former Secretary of State James Baker, studied the
issue and recommended that States should require voter photo IDs.
See Report of the Commission on Federal Election Reform, Building
Confidence in U. S. Elections §2.5 (Sept. 2005) (Carter-Baker
Report), App. 136–144. Because the record does not discredit the
Carter-Baker Report or suggest that Indiana is exceptional, I see
nothing to prevent Indiana’s Legislature (or a federal court
considering the constitutionality of the statute) from taking
account of the legislatively relevant facts the report sets forth
and paying attention to its expert conclusions. Thus, I share the
general view of the lead opinion insofar as it holds that the
Constitution does not automatically forbid Indiana from
enacting a photo ID requirement. Were I also to believe, as Justice
Stevens believes, that the burden imposed by the Indiana statute on
eligible voters who lack photo IDs is indeterminate “on the basis
of the record that has been made in this litigation,” ante , at 18, or were I to believe, as Justice Scalia
believes, that the burden the statute imposes is “minimal” or
“justified,” ante , at 1 (opinion concurring in judgment),
then I too would reject the petitioners’ facial attack, primarily
for the reasons set forth in Part II of the lead opinion, see ante , at 7–13.

															   I cannot agree, however, with Justice Stevens’
or Justice Scalia’s assessment of the burdens imposed by the
statute. The Carter-Baker Commission conditioned its
recommendation upon the States’ willingness to ensure that the
requisite photo IDs “be easily available and issued free of charge”
and that the requirement be “phased in” over two federal election
cycles, to ease the transition. Carter-Baker Report, at App. 139,
140. And as described in Part II of Justice Souter’s dissenting
opinion, see ante , at 3–16, Indiana’s law fails to satisfy
these aspects of the Commission’s recommendation.

															   For one thing, an Indiana nondriver, most
likely to be poor, elderly, or disabled, will find it difficult and
expensive to travel to the Bureau of Motor Vehicles, particularly
if he or she resides in one of the many Indiana counties lacking a
public transportation system. See ante, at 6–7 (Souter,
J., dissenting) (noting that out of Indiana’s 92 counties, 21 have
no public transportation system at all and 32 others restrict
public transportation to regional county service). For another,
many of these individuals may be uncertain about how to obtain the
underlying documentation, usually a passport or a birth
certificate, upon which the statute insists. And some may find the
costs associated with these documents unduly burdensome (up to $12
for a copy of a birth certificate; up to $100 for a passport). By
way of comparison, this Court previously found unconstitutionally
burdensome a poll tax of $1.50 (less than $10 today,
inflation-adjusted). See Harper v. Virginia Bd. of
Elections , 383
U. S. 663 , 664 n. 1, 666 (1966); ante , at 30 (Souter,
J., dissenting). Further, Indiana’s exception for voters who cannot
afford this cost imposes its own burden: a postelection trip to the
county clerk or county election board to sign an indigency
affidavit after each election . See ante , at 8–10
(same).

															   By way of contrast, two other States—Florida
and Georgia—have put into practice photo ID requirements
significantly less restrictive than Indiana’s. Under the Florida
law, the range of permissible forms of photo ID is substantially
greater than in Indiana. See Fla. Stat. §101.043(1) (West Supp.
2008) (including employee badge or ID, a debit or credit card, a
student ID, a retirement center ID, a neighborhood association ID,
and a public assistance ID). Moreover, a Florida voter who lacks
photo ID may cast a provisional ballot at the polling place that
will be counted if the State determines that his signature matches
the one on his voter registration form. §§101.043(2);
101.048(2)(b).

															   Georgia restricts voters to a more limited
list of acceptable photo IDs than does Florida, but accepts in
addition to proof of voter registration a broader range of
underlying documentation than does Indiana. See Ga. Code Ann.
§21–2–417 (Supp. 2007); Ga. Comp. Rules & Regs., Rule
183–1–20.01 (2008) (permissible underlying documents include a
paycheck stub, Social Security, Medicare, or Medicaid statement,
school transcript, or federal affidavit of birth, as long as the
document includes the voter’s full name and date of birth).
Moreover, a Federal District Court found that Georgia “has
undertaken a serious, concerted effort to notify voters who may
lack Photo ID cards of the Photo ID requirement, to inform those
voters of the availability of free [State-issued] Photo ID cards or
free Voter ID cards, to instruct the voters concerning how to
obtain the cards, and to advise the voters that they can vote
absentee by mail without a Photo ID.” Common Cause/Georgia v. Billups , 504 F. Supp. 2d 1333, 1380 (ND Ga. 2007).
While Indiana allows only certain groups such as the elderly and
disabled to vote by absentee ballot, in Georgia any voter
may vote absentee without providing any excuse, and (except where
required by federal law) need not present a photo ID in order to do
so. Compare Ind. Code §3–11–4–1 (West 2006) with Ga. Code Ann.
§21–2–381 (Supp. 2007). Finally, neither Georgia nor Florida
insists, as Indiana does, that indigent voters travel each election
cycle to potentially distant places for the purposes of signing an
indigency affidavit.

															   The record nowhere provides a convincing
reason why Indiana’s photo ID requirement must impose greater
burdens than those of other States, or than the Carter-Baker
Commission recommended nationwide. Nor is there any reason to think
that there are proportionately fewer such voters in Indiana than
elsewhere in the country (the District Court’s rough estimate was
43,000). See 458 F. Supp. 2d 775, 807 (SD Ind. 2006). And I
need not determine the constitutionality of Florida’s or Georgia’s
requirements (matters not before us), in order to conclude that
Indiana’s requirement imposes a significantly harsher, unjustified
burden.

															   Of course, the Carter-Baker Report is not the
Constitution of the United States. But its findings are highly
relevant to both legislative and judicial determinations of the
reasonableness of a photo ID requirement; to the related necessity
of assuring that all those eligible to vote possess the requisite
IDs; and to the presence of alternative methods of assuring that
possession, methods that are superior to those that Indiana’s
statute sets forth. The Commission’s findings, taken together with
the considerations set forth in Part II of Justice Stevens’
opinion, and Part II of Justice Souter’s dissenting opinion, lead
me to the conclusion that while the Constitution does not in
general forbid Indiana from enacting a photo ID requirement, this
statute imposes a disproportionate burden upon those without valid
photo IDs. For these reasons, I dissent.