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No I.D.
No Vote?

Is requiring a photo I.D. a reasonable measure against fraud, or a deterrent to voting? The Supreme Court is likely to decide this spring.

By Ian Urbina in Washington, D.C.


On Election Day last November, Valerie Williams went to the polling station in the lobby of her Indianapolis retirement home to vote. In doing so, she unwittingly walked into the middle of a national debate about voting rights and laws designed to prevent voter fraud.

The election officials at the polling place, who Williams had known for years, told her she could not cast a regular ballot. They said the forms of identification she had always used—a phone bill, a Social Security letter with her address on it, and an expired Indiana driver's license—were no longer valid under Indiana's new voter I.D. law, which required a current state-issued photo identification card.

"Of course I threw a fit," says Williams, 61. She cast a provisional ballot, which was not counted because she didn't go to the voting office within 10 days to prove her identity, as required under the law. Williams, who has trouble walking, says she couldn't get a ride to the office.

This incident is at the heart of a challenge to the Indiana law currently being considered by the Supreme Court. The case, Crawford v. Marion County Election Board, is "the most important case involving the mechanics of election administration in decades," says Daniel P. Tokaji, a law professor at Ohio State University.

The Court will probably decide the case by June, in time to affect the November presidential election.

Supporters of the law, most of them Republicans, say requiring a state photo I.D. card is a prudent step toward curbing voter fraud. They say the requirement helps restore confidence in the voting process by removing the potential for fraud.

Opponents of the law, mostly Democrats, view voter I.D. requirements as a deterrent that disproportionately affects poor, minority, and elderly voters, who more often lack the required forms of I.D.—and who also tend to be Democrats.

Florida, Georgia & Indiana

Three states—Florida, Georgia, and Indiana—require voters to show a photo I.D.. Other states allow other types of documentation, such as utility bills or an affidavit from the voter. Twenty-three states require only what federal law demands: that just first-time voters who apply by mail and have not otherwise been verified by the state must prove their identity with documentation.

Last year, 27 states considered laws like the one in Indiana, seeking to increase I.D. requirements for registration or voting, according to the New York University School of Law. The Supreme Court ruling will affect all such legislation.

In the 1980s and '90s, the Supreme Court came up with a test for assessing any law that placed hurdles before voters: Courts must weigh the value of the law to the state against the burden it places on voters.

Supporters of the Indiana law say the I.D. requirement is hardly burdensome in today's world. "It is exceedingly difficult to maneuver in today's America without a photo I.D.," Judge Richard A. Posner of the Seventh Circuit Court of Appeals in Chicago wrote in a January 2007 opinion upholding the Indiana law. "Try flying, or even entering a tall building, such as the courthouse in which we sit, without one. And as a consequence, the vast majority of adults have such identification."

But according to various sources, it is estimated that between 13 million and 22 million Americans of voting age—most of them poor—lack driver's licenses, passports, or another kind of government-issued photo I.D. A 2007 study at the University of Washington found that about 13 percent of registered voters in Indiana lacked the required identification.

Impact On Turnout?

"It's important to look at voter I.D. requirements in the context of previous attempts to disenfranchise voters," says Spencer Overton, a law professor at George Washington University.

Overton says literacy tests and poll taxes, which were used broadly across the South and prevented many blacks from voting until the civil rights movement of the 1950s and '60s, seemed in some ways legitimate: An electorate that can read sounds reasonable, and poll taxes help pay for elections. But the Supreme Court declared both unconstitutional because they create barriers to voting for certain groups.

"It's a step backward for voting rights if the Court upholds the voter I.D. requirement because it's likely that millions of legitimate voters will not cast a ballot in future elections," Overton says. "The United States is in the bottom 19 percent of all democracies in the world in terms of voter turnout; the photo I.D. requirement would likely make things worse."

The Court's decision in this case could set the standard for all kinds of challenges to election rules across the country, including ones involving the handling of provisional ballots, new restrictions on voter registration, and the methods states can use to purge voters from registration rolls. In close national elections, like the 2000 or 2004 presidential races, these kinds of rules can make a difference in outcomes.

No one has ever been prosecuted for impersonating a voter, the type of fraud that would be prevented by a photo I.D. "No one has been punished for this kind of fraud in living memory in this country," Paul M. Smith, a lawyer for the Democrats, told the Justices when the case was argued last month.

But Chief Justice John G. Roberts seemed unimpressed. "It's a type of fraud that, because it's fraud, it's hard to detect," he replied.