Focusing public attention on emerging privacy and civil liberties issues

Crawford v. Marion County Election Board

& Indiana Democratic Party v. Rokita

Concerning Photo Identification Requirements for Voters


Latest News

  • Federal Court Panel Blocks South Carolina Voter ID Requirement: A special panel of federal judges in Washington, DC has barred the state of South Carolina from enforcing new voter identification requirements in the upcoming November elections. The court was "unable to conclude" that South Carolina could implement its voter identification law in a way that would "suffice under the Voting Rights Act" before the upcoming elections. The court did grant preclearance to implement the law after the November elections citing the "extremely broad interpretation of the reasonable impediment provision," which allows South Carolina voters to still vote if they complete an affidavit affirming their identity and state the reason for not having obtained photo identification. EPIC has previously argued that voter ID requirements impermissibly burden the right to vote. For more information, see EPIC: Voter ID and Privacy and EPIC: Crawford v. Marion County. (Oct. 15, 2012)
  • Pennsylvania Judge Blocks Voter ID Requirement: A Pennsylvania district court barred the state from enforcing voter identification requirements in the upcoming November elections. Following guidance from the state Supreme Court, Judge Robert Simpson issued a narrow preliminary injunction. He ordered that Pennsylvania may not require photo IDs to vote in November. Election officials may ask voters for identification, but those without ID may still cast regular ballots. Judge Simpson explained that the state Supreme Court identified "the essential offending activity as voter disenfranchisement, not a request to produce photo ID." EPIC has previously argued that voter ID requirements impermissibly burden the right to vote. For more information, see EPIC: Voter ID and Privacy and EPIC: Crawford v. Marion County. (Oct. 3, 2012)
  • Pennsylvania to Reconsider Voter ID Law: The Pennsylvania Supreme Court has ruled that a lower court must determine whether the State's strict voter ID can lawfully be implemented before the national election on November 6. The Supreme Court said that the "disconnect between what the law prescribes and how it is being implemented" raises questions. EPIC has previously argued that voter ID requirements are an impermissible burden on the right to vote. EPIC: Voter Photo ID and Privacy and EPIC: Crawford v. Marion County. (Sep. 21, 2012)
  • Federal Appellate Court Strikes Down Texas Voter ID Law: The D.C. Circuit Court of Appeals has invalidated a Texas law that would require voters to present a photo identification in order to vote. Calling the law “the most stringent in the country,” the court held that “record evidence suggests that [the law], if implemented, would in fact have a retrogressive effect on Hispanic and African American voters.” Therefore, the court held, the law violates section 5 of the Voting Rights Act of 1965. Section 5 requires “covered jurisdictions” to show that new voting procedures, such as Voter ID requirements, are nondiscriminatory before those changes can be put into effect. The ruling came after the Department of Justice previously blocked the law through the Section 5 preclearance process. EPIC has argued that unreasonable voter ID requirements are an impermissible burden on the right to vote. For more information, see EPIC: Voter Photo ID and Privacy and EPIC: Crawford v. Marion County. (Aug. 30, 2012)
  • Second Wisconsin Judge Strikes Down State Voter ID Law: In a second challenge to Wisconsin's voter ID requirement, Judge David Flanagan has held that the ID law imposes an unconstitutional burden on the right to vote. The law "tells more than 300,000 Wisconsin voters who do not now have an acceptable form of photo identification that they cannot vote unless they first obtain a photo ID card," wrote Judge Flanagan. The opinion follows a similar ruling earlier this year by Wisconsin judge Richard Niees. For more information EPIC: Voter Photo ID and Privacy and EPIC: Crawford v. Marion County. (Jul. 23, 2012)
  • Senate Judiciary Holds Hearing on Voter Suppressions: The Senate Judiciary Committee held a hearing on “Prohibiting the Use of Deceptive Practices and Voter Intimidation Tactics in Federal Elections." The Senate is considering new legislation to address the problem of deceptive practices and voter intimidation. Committee Chairman Patrick Leahy cited "burdensome identification laws" as one of the obstacles to public participation in federal elections. A new report highlights similar problems in the recent Canadian national election. EPIC has published reports on deceptive campaign practices and filed briefs in opposition to unnecessary voter ID requirements. For more information see EPIC Voting Privacy and EPIC - Crawford v. Marion County. (Jun. 27, 2012)
  • Federal Appeals Court Backs Justice Department in Voting Rights Dispute: The Court of Appeals for the District of Columbia Circuit issued an opinion rejecting Shelby County, Alabama's constitutional challenge to the preclearance requirements of the Voting Rights Act of 1965. The Court held that Section 5 of the Act, which requires "covered jurisdictions" to show that new voting procedures, such as Voter ID requirements, are nondiscriminatory before those changes can be put into effect, is constitutional. Shelby County challenged the preclearance requirements after Congress reauthorized Section 5 in 2006. The Department of Justice recently blocked Voter ID laws in South Carolina and Texas through the Section 5 preclearance process. EPIC has argued that unreasonable voter ID requirements are an impermissible burden on the right to vote. For more information, see EPIC: Voter Photo ID and Privacy and EPIC: Crawford v. Marion County. (May. 18, 2012)
  • New Voter Photo ID Laws Under Consideration: More than 30 states are considering new laws that would require voters to obtain government-issued photo identification. Voter photo identification laws have been routinely challenged in federal court, and many have been set aside or altered. Currently eight states have photo identification requirements. Prior to the Help America Vote Act, most states allowed several forms of identification to establish residence. In 2007, EPIC filed an amicus brief in the Supreme Court, joining a challenge to an Indiana voter ID law. The Court upheld the law 6-3. Justice Souter wrote in dissent, "this statute imposes a disproportionate burden upon those without" government-issued photo IDs. For more information, see EPIC Voter Photo ID and Privacy and EPIC - Crawford v. Marion County. (Apr. 27, 2011)
  • Indiana Court Strikes Down State Voter ID Law: Yesterday, the Indiana Court of Appeals ruled that the Indiana Voter ID law, which requires certain individuals to present government-issued photo identification before they could vote, violates the state Constitution. The law is unconstitutional, the court held, because it “regulates voters in a manner that is not uniform and impartial.” The United States Supreme Court previously ruled that the law did not violate the federal Constitution, but did not address the law’s validity under the Indiana Constitution. EPIC and ten legal scholars and technical experts filed a “friend-of-the-court” brief in that case, urging the Court to invalidate the law because of its disparate impact and its reliance on REAL-ID, a "flawed federal identification system.” For more information, see Crawford v. Marion County Election Board and EPIC Voting Privacy. (Sep. 18, 2009)
  • Supreme Court Upholds Voter ID Law. The U.S. Supreme Court today struck down a challenge to a voter ID law in Indiana. In 6-3 opinion (pdf), the majority said the state interests "are both neutral and sufficiently strong to require us to reject petitioners' facial attack on the statute," and the burden imposed on voters was "minimal and justified." Justice Souter wrote in dissent, "this statute imposes a disproportionate burden upon those without" government-issued photo IDs. EPIC had submitted a brief (pdf) detailing problems with the law. "Not only has the state failed to establish the need for the voter identification law or to address the disparate impact of the law, the state's voter ID system is imperfect, and relies on a flawed federal identification system." (Apr. 28)
  • EPIC Reply to NY Times Editorial on Voter ID. The letter thanked the bipartisan efforts of both former President Carter and former Secretary of State Baker on the issue. The reply stated that the proposed requirement, which limit voters to one of a few forms of government issued IDs avoids the real problem of poor voter registration system management, and the unique environment of public elections. (February 6, 2008)
  • Supreme Court to Hear Indiana Voter ID Case. On January 9, 2008, the U.S. Supreme Court will hear arguments in Crawford v. Marion County Election Board. The case involves an Indiana law that requires each voter to obtain a government-issued photo ID card. EPIC and ten legal scholars and technical experts submitted a brief in the case objecting to the law because the state had not addressed the only documented source of voter fraud -- absentee voting -- and planned to adopt the federal REAL ID to prove voter eligibility. "Not only has the state failed to establish the need for the voter identification law or to address the disparate impact of the law, the state's voter ID system is imperfect, and relies on a flawed federal identification system." The transcript will be available shortly after the argument is completed. See EPIC Voter Privacy Page. (January 7)
  • EPIC, Experts Urge Supreme Court to Strike Down Indiana Voter Photo ID Law. In a "friend-of-the-court" brief (pdf) filed today, EPIC and 10 legal scholars and technical experts urged the U.S. Supreme Court to invalidate an Indiana law requiring individuals to show a government-issued photo ID card before allowing them to vote. "Not only has the state failed to establish the need for the voter identification law or to address the disparate impact of the law, the state's voter ID system is imperfect, and relies on a flawed federal identification system," called REAL ID, they said. For more information, visit the National Committee for Voting Integrity. (November 13, 2007)
  • U.S. Supreme Court Agrees to Hear Voter ID Cases. The U.S. Supreme Court has agreed (pdf) to hear a challenge to the Indiana voter identification requirement. The issue in this case is whether Indiana's government-issued voter photo identification requirements would keep the poor, elderly or members of minority groups from voting even though they are eligible. Experts have argued successfully that voting practices that violate substantial privacy interests (e.g. publication of the Social Security Number in the state voting rolls) are an impermissible burden on the right to vote. (September 25, 2007)
  • Seventh Circuit Upholds Indiana's Voter Photo ID Law. Today a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled (pdf) 2 to 1 to uphold the new Indiana voter photo ID requirements. In writing for the majority, Judge Richard Posner admitted that eligible voters would be disenfranchised by the new Indiana voter photo ID law, but said the risk of voter fraud outweighed. In his dissent, Judge Terence T. Evans, said (pdf), "Let's not beat around the bush: The Indiana voter photo ID law is a not-too- thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic." (Jan. 4, 2007)

Introduction

On July 1, 2005, a new Indiana law went into effect requiring individuals to present government-issued photo identification at polling places before they could cast their votes. Before this, Indiana identified voters by comparing signatures collected at the polling places with photocopied signatures on file. Under the new law, individuals without photo IDs may cast a provisional ballot but must, within 10 days, either produce a government-issued photo ID, or file an affidavit that they are indigent and cannot afford a government-issued photo ID.

Two cases were filed in the U.S. District Court for the Southern District of Indiana challenging the new voter photo ID requirements: Crawford v. Marion County Election Board (filed by the ACLU and NAACP on behalf of an Indiana legislatory, William Crawford) and Indiana Democratic Party v. Rokita (Todd Rokita is Indiana's Secretary of State), which were later heard together. Indiana states that the law should be upheld, and it would combat voter fraud. Crawford and the Indiana Democratic Party contend that a voter photo ID requirement would disenfranchise the poor and the elderly, because they are the most likely to be without the means to pay for or the papers required to buy a government-issued photo ID document. Such state-issued driver's licenses or federally issued passports require that individuals produce documents such as certified birth certificates to prove identification. Also, in one case, a woman obtained a certified birth certificate yet was not approved because the certificate contained her maiden name.

Though Indiana claims that the voter photo ID requirement would reduce instances of voter fraud, neither the state nor the courts have been able to identify one case in which a photo ID requirement would have prevented voter fraud. The few cases of voter fraud that have been documented all have occurred with absentee ballots. Indiana's new law would not prevent such voter fraud, because it includes an exemption from the photo identification requirement for absentee voters:

IC 3-11-10-1.2
Proof of identification not required
Sec. 1.2. An absentee voter is not required to provide proof of identification when:
(1) mailing, delivering, or transmitting an absentee ballot under section 1 of this chapter; or
(2) voting before an absentee board under section 25 of this chapter.

On April 14, 2006, the U.S. District Court for the Southern District of Indiana ruled (pdf) for the defendants, the Marion County Election Board and Todd Rokita, Indiana Secretary of State, upholding the law. The case was appealed to the U.S. Court of Appeals for the Seventh Circuit.

On January 4, 2007, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled (pdf) 2 to 1 to uphold the new Indiana voter photo ID requirements. In writing for the majority, Judge Richard Posner admitted that eligible voters would be disenfranchised by the new Indiana voter photo ID law, but said the risk of voter fraud outweighed. He said the law should be reviewed using a lower standard of scrutiny. "The purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes -- dilution being recognized to be an impairment of the right to vote." In support of this, Judge Posner cited a per curiam opinion from the U.S. Supreme Court in October 2006, Purcell v. Gonzalez, 127 S.Ct. 5 (2006).

Purcell v. Gonzalez (pdf) concerned a voter identification law in Arizona. The Supreme Court said, "Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes would be outweighed by fraudulent ones would feel disenfranchised." The U.S. Supreme Court and the Seventh Circuit reasoned that states could actual disenfranchise voters because otherwise voters would "feel disenfranchised."

In dissenting from Judge Posner, Judge Terence T. Evans, said (pdf), "Let's not beat around the bush: The Indiana voter photo ID law is a not-too- thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic." He continued, stating, "We should subject this law to strict scrutiny -- or at least, in the wake of Burdick v. Takushi, 504 U.S. 428 (1992), something akin to 'strict scrutiny light' -- and strike it down as an undue burden on the fundamental right to vote."

On April 7, 2007, the U.S. Court of Appeals for the Seventh Circuit denied an appeal for an en banc rehearing of the case. The plaintiffs, Crawford and the Indiana Democratic Party, then appealed to the U.S. Supreme Court.

On September 25, 2007, the U.S. Supreme Court agreed (pdf) to hear the cases together. The question presented is: Whether an Indiana statute mandating that those seeking to vote in-person produce a government-issued photo identification violates the First and Fourteenth Amendments to the United States Constitution?

On April 28, 2008, The U.S. Supreme Court struck down the challenge to Indiana's Voter ID law. In 6-3 opinion (pdf), the majority said the state interests "are both neutral and sufficiently strong to require us to reject petitioners' facial attack on the statute," and the burden imposed on voters was "minimal and justified." Justice Souter wrote in dissent, "this statute imposes a disproportionate burden upon those without" government-issued photo IDs. EPIC had submitted a brief (pdf) detailing problems with the law. "Not only has the state failed to establish the need for the voter identification law or to address the disparate impact of the law, the state's voter ID system is imperfect, and relies on a flawed federal identification system."

EPIC's Interest

EPIC has a long history of working on voter privacy issues, which this case strongly affects. In a March 2007 statement (pdf) to the U.S. House Committee on the Judiciary, EPIC cautioned against new photo identification and proof of citizenship requirements for federal elections. Absent evidence of an actual problem, EPIC warned that the requirements could discourage legal voters. EPIC noted that Congress has already provided for provisional ballots for instances when there are doubts about the status of voters seeking to cast ballots in public elections.

Currently, seven states require voters to show a photo identification document, according to the National Conference of State Legislatures. Seventeen other states also require identification, but not photo IDs. Indiana's voter photo identification law is one of the strictest in the country, far stricter than the standards set out in the Help America Vote Act of 2002.

Though supporters of the Indiana law claim that almost every American has a government-issued photo identification document, this is not true because not everyone can afford one or has any need for one. In fact, the National Commission on Election Reform (also known as "the Ford-Carter Commission") estimated that about 20 million Americans (about 10 percent) do not have any form of state-issued photo identification.

Neither Indiana nor the courts have been able to identify one case in which a photo ID requirement would have prevented voter fraud. The few cases of voter fraud that have been documented all have occurred with absentee ballots. Indiana's new law would not prevent such voter fraud, because it includes an exemption from the photo identification requirement for absentee voters. The Indiana law raises First and Fourteenth Amendment questions and would likely disenfranchise poor, elderly and minority voters.

Legal Documents

U.S. Supreme Court

  • 6-3 Opinion Upholding Voter ID Law (April 28, 2008) (pdf)
  • Amicus Brief of EPIC and 10 Legal Scholars and Technical Experts (November 13, 2007) (pdf)
  • Brief of petitioners Indiana Democratic Party (November 5, 2007) (pdf)
  • Brief of petitioner William Crawford (November 5, 2007) (pdf)
  • Order Granting Cert. (September 25, 2007) (pdf)

Seventh Circuit Court of Appeals

  • Majority Opinion by Judge Richard Posner and Dissent by Judge Terence Evans (January 4, 2007) (pdf)
  • Amicus Brief by the Brennan Center for Justice at NYU School of Law (June 23, 2006) (1.2 MB pdf)
  • Amicus Brief by League of Women Voters of Indiana, and the League of Voters of Indianapolis (June 28, 2006 ) (pdf)
  • Amicus Brief by ACVR and Vincent I. Perez (July 27, 2006) (pdf)

District Court

  • Opinion Granting Summary Judgment to the Defendants (April 14, 2006) (1.1 MB pdf)

Related Resources

Legal Commentary on the Cases

News Stories