472 F.3d 949 | 7th Cir. | 2007
Lead Opinion
A number of candidates for public office, and voters, along with organizations such as the Democratic Party that are active in electoral politics, challenge a new Indiana voting law as an undue burden on the right to vote, a right that the Supreme Court has found latent in the Constitution. E.g., Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), and cases cited in Igartua-De La Rosa v. United States, 417 F.3d 145, 169-70 (1st Cir.2005). The law requires, with certain exceptions, that persons wanting to vote in person in either a primary or a general election must present at the polling place a government-issued photo ID (see Ind.Code §§ 3-5-2-40.5, 3-10-1-7.2, 3-11-8-25.1), unless the person either wants to vote by absentee ballot (and is eligible to do so) or lives in a nursing home. Ind.Code §§ 3-11-8-25.1(e), 3-11-10-1.2. The district court granted summary judgment for the defendants. Indiana Democratic Party v. Rokita, 2006 WL 1005037 (N.D.Ind. Apr. 14, 2006), 2006 U.S. Dist. LEXIS 20321.
Until the new law went into effect, someone who wanted to vote in person and was not voting for the first time just had to sign the poll book at the polling place; “there would generally be a photographic copy of the signature [on file] that would be compared” by the staff with the signature in the poll book. Id. at *18-*19. The new law’s requirement that the would-be voter present a government-issued photo ID, such as a passport or a driver’s license, is no problem for people who have such a document, as most people do. Nor is it a problem for people who vote by absentee ballot or who live in nursing homes — and anyone 65 or over can vote by absentee ballot. But what about people who do not have photo IDs and must vote in person, if they vote at all, because they don’t live in nursing homes and are ineligible to cast absentee ballots, though the eligibility requirements are not stringent (see Ind. Code § 3-11-10-24, and compare Griffin v. Roupas, 385 F.3d 1128, 1129 (7th Cir. 2004), discussing the Illinois requirements)? They can get a photo ID from the Indiana motor vehicle bureau by presenting their birth certificate (or certificate of naturalization if they were born outside the United States) or a certified copy, plus a document that has their name and address on it, such as a utility bill. Both the indigent and the nonindigent who does not have (or have with him) a photo ID can, if challenged, cast a provisional ballot and then has 10 days either to file an affidavit of indigency or to procure a photo ID. Ind.Code §§ 3-11.7-5-2.5, 3-11-8-23, 3-11-8-25.1.
No doubt most people who don’t have photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates. Exit polls in the recent midterm elections show a strong negative correlation between income and voting Democratic, with the percentage voting Democratic rising from 45 percent for voters with an income of at least $200,000 to 67 percent for voters having an income below $15,000. “Exit Polls,” http://www. cnn.com/ELECTION/ 2006/pages/ results/ states /US/H/00/epolls.0.html; see also Jeffrey M. Stonecash, Class and Party in American Politics 114 (2000) (tab.5.7). Thus the new law injures the Democratic Party by compelling the party to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982); Smith v. Boyle, 144 F.3d 1060, 1061-63 (7th Cir.1998). The fact that the added cost has not been estimated and may be slight does not affect standing, which requires only a minimal showing of injury. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-84, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 690 n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); 520 Michigan Avenue Associates, Ltd. v. Devine, 433 F.3d 961, 962-63 (7th Cir.2006); Baur v. Veneman, 352 F.3d 625, 633-34 (2d Cir.2003). The Democratic Party also has standing to assert the rights of those of its members who will be prevented from voting by the hew law. Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 573-74 (6th Cir.2004); see also Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).
The standing of the many other plaintiffs in these consolidated suits — candidates, voters, organizations — is less certain, but need hot be addressed. Only injunctive relief is sought, and for that only one plaintiff with standing is required; and the Democratic Party has standing. Texas Democratic Party v. Benkiser, 459 F.3d 582, 585-86 (5th Cir.2006); Schulz v. Williams, 44 F.3d 48, 50-53 (2d Cir.1994); Owen v. Mulligan, 640 F.2d 1130, 1131-33 (9th Cir.1981); see Libertarian Party v. Rednour, 108 F.3d 768, 770 (7th Cir.1997).
But there is something remarkable about the plaintiffs considered as a whole, which will provide the transition to our consideration of the merits. There is not a
The fewer the people who will actually disfranchise themselves rather than go to the bother and, if they are not indigent and don’t have their birth certifícate and so must order a copy and pay a fee, the expense of obtaining a photo ID, the less of a showing the state need make to justify the law. For the fewer the people harmed by a law, the less total harm there is to balance against whatever benefits the law might confer. The argument pressed by the plaintiffs that any burden on the right to vote, however slight it is or however meager the number of voters affected by it, cannot pass constitutional muster unless it is shown to serve a compelling state interest was rejected in Burdick v. Takushi, 504 U.S. 428, 433-34, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). The Court said that “election laws will invariably impose some burden upon individual voters.... [T]o subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest, as petitioner suggests, would tie the hands of States seeking to assure that elections are operated equitably and efficiently.” See also Anderson v. Celebrezze, 460 U.S. 780, 788-90, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), where the Court pointed to the need to “consider the character and magnitude of the asserted injury” (emphasis added); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997); Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); Schulz v. Williams, 44 F.3d 48, 56 (2d Cir.1994).
A strict standard would be especially inappropriate in a case such as this, in which the right to vote is on both sides of the ledger. See Purcell v. Gonzalez, — U.S. -, -, 127 S.Ct. 5, 7, 166 L.Ed.2d 1 (2006) (per curiam); cf. Burson v. Freeman, 504 U.S. 191, 198, 206, 211, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992). The Indiana law is not like a poll tax, where on one side is the right to vote and on the other side the state’s interest in defraying the cost of elections or in limiting the franchise to people who really care about voting or in excluding poor people or in discouraging people who are black. 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. Purcell v. Gonzalez, supra, 127 S.Ct. at 7; Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Siegel v. LePore, 234 F.3d 1163, 1199 (11th Cir.2000). On one side of the balance in this case is the effect of requiring a photo ID in inducing eligible voters to disfranchise themselves. That effect, so far as the record reveals, is slight. The principal evidence on which the plaintiffs relied to show that many voters would be disfranchised was declared by the district judge to be “totally unreliable” because of a number of methodological flaws; and we accept her finding.
But the absence of prosecutions is explained by the endemic underenforcement of minor criminal laws (minor as they appear to the public and prosecutors, at all events) and by the extreme difficulty of apprehending a voter impersonator. He enters the polling place, gives a name that is not his own, votes, and leaves. If later it is discovered that the name he gave is that of a dead person, no one at the polling place will remember the face of the person who gave that name, and if someone did remember it, what would he do with the information? The impersonator and the person impersonated (if living) might show up at the polls at the same time and a confrontation might ensue that might lead to a citizen arrest or a call to the police who would arrive before the impersonator had fled, and arrest him. A more likely sequence would be for the impersonated person- to have voted already when the impersonator arrived and tried to vote in his name. But in either case an arrest would be most unlikely (and likewise if the impersonation were discovered or suspected by comparing signatures, when that is done), as the resulting commotion would disrupt the voting. And anyway the impersonated voter is likely to be dead or in another district or precinct or to be acting in cahoots with the impersonator, rather than to be a neighbor (precincts are small, sometimes a single apartment house). One response, which has a parallel to littering, another crime the perpetrators of which are almost impossible to catch, would be to impose a very severe criminal penalty for voting fraud. Another, however, is to take preventive action, as Indiana has done by requiring a photo ID.
The plaintiffs argue that while vote fraud by impersonation may be a problem in other states, it is not in Indiana, because there are no reports of such fraud in that state. But that lacuna may reflect nothing more than the vagaries of journalists’ and other investigators’ choice of scandals to investigate. Some voter impersonation has been found (though not much, for remember that it is difficult to detect) in the states that have been studied, and those states do not appear to be on average more “dishonest” than Indiana; for besides the notorious examples of Florida and Illinois, they include Michigan, Missouri, and Washington (state). Indirect evidence of such fraud, or at least of an acute danger of such fraud, in Indiana is provided by the discrepancy between the number of people listed on the registered-voter rolls in the state and the substantially smaller number of people actually eligible to vote. The defendants’ expert estimated that the registration rolls contained 1.3 million more names than the eligible voters in Indiana. This seems too high, but the plaintiffs’ expert acknowledged that the rolls are inflated. How many impersonations there are we do not know, but the plaintiffs have not shown that there
The plaintiffs point out that the National Voter Registration Act of 1993, 42 U.S.C. § 1973gg-6(a)(4), requires all states to purge their registration rolls of ineligible voters. See also the Help American Vote Act, 42 U.S.C. § 15301, particularly § 15483(a)(4)(B). The purge has not yet been completed in Indiana. One thing that is slowing it down is that removing a name from the voter registration roll requires notice to a registered voter whose address appears from postal records to have changed, and only if a voter fails to respond to the notice and fails to vote in two successive federal elections can the state remove him from the rolls. 42 U.S.C. §§ U.S.C. § 1973gg-6(c), (d). And when the purge is completed, it is likely to eliminate many more eligible voters than the new Indiana law will do, cf. Jeffrey A. Blomberg, “Note: Protecting the Right Not to Vote From Voter Purge Statutes,” 64 Fordham L.Rev. 1015, 1016-17 (1995), yet provide only a short-term solution, since as soon as the purge is complete the inflation of the registration rolls will recommence.
The plaintiffs complain that the new Indiana law is underinelusive because it fails to require absentee voters to present photo IDs. But how would that work? The voter could make a photocopy of his driver’s license or passport or other government-issued identification and include it with his absentee ballot, but there would be no way for the state election officials to determine whether the photo ID actually belonged to the absentee voter, since he wouldn’t be presenting his face at the polling place for comparison with the photo. Cf. Griffin v. Roupas, supra, 385 F.3d at 1130-31.
Perhaps the Indiana law can be improved — what can’t be?- — but the details for regulating elections must be left to the states, pursuant to Article I, section 4, of the Constitution, which provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.” “To deem ordinary and widespread burdens like these severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes. The Constitution does not require that result, for it is beyond question ‘that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.’ ” Clingman v. Beaver, 544 U.S. 581, 593, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005), quoting the Timmons case cited earlier; see also Anderson v. Celebrezze, supra, 460 U.S. at 788, 103 S.Ct. 1564; Griffin v. Roupas, supra, 385 F.3d at 1130-31.
Regarding the plaintiffs’ other arguments, we have nothing to add to the discussion by the district judge. The judgment for the defendants is
Affirmed.
Dissenting Opinion
dissenting.
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. We should subject this law to strict scrutiny — or at least, in the wake of Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), something akin to “strict scrutiny light”' — and strike it down as an undue burden on the fundamental right to vote.
The fig leaf of respectability providing the motive behind this law is that it is necessary to prevent voter fraud — a person showing up at the polls pretending to be someone else. But where is the evidence of that kind of voter fraud in this record? Voting fraud is a crime (punishable by up to 3 years in prison and a fine of up to $10,000 in Indiana) and, at oral argument, the defenders of this law candidly acknowledged that no one — in the history of Indiana — had ever been charged with violating that law. Nationwide, a preliminary report to the U.S. Election Assistance Commission has found little evidence of the type of polling-place fraud that photo ID laws seek to stop. If that’s the case, where is the justification for this law? Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table? I think not.
Indiana law provides that a voter shall be challenged at the poll and required to vote only by provisional ballot if: (1) “the voter is unable or declines to present the Proof of Identification” or (2) a member of the precinct election board determines that the Proof of Identification provided by the voter does not qualify as Proof of Identification under the law. “Proof of Identification” is defined as a document that satisfies all 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.
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?
But these are perhaps minor concerns. The real problem is that this law will make it significantly more difficult for some eligible voters — I have no idea how many, but 4 percent is a number that has been bandied about — to vote. And this group is mostly comprised of people who are poor, elderly, minorities, disabled, or some combination thereof. I would suspect that few, if any, in this class have passports (which cost in the neighborhood of $100), and most don’t have drivers licenses (who needs a drivers license if you don’t drive a car?) or state-issued ID cards which require valid (certified) birth certificates. And it’s not particularly easy for a poor, elderly person who lives in South Bend, but was born in Arkansas, to get a certified copy of his birth certificate.
The Washington Post (Nov. 3, 2006) reported that on Indiana’s primary election day, Rep. Julia Carson
I believe that most of the problems with our voting system — like deceased persons or felons on registration rolls, machines that malfunction, and confusing ballots (think butterfly) — are suggestive of mismanagement, not electoral wrongdoing. And I recognize that there is, and perhaps there may always be, a fundamental tension between claims of voter fraud and fears of disenfranchisement. But Indiana’s law, because it allows nothing except a passport or an Indiana ID card to prove that a potential voter is who he says he is, tips far too far in the wrong direction.
Burdick, which concerned a challenge to a Hawaii law that did not require the counting of write-in votes, put to rest the notion that strict scrutiny applies to every law that imposes a burden on the right to vote. As the Court observed:
[T]o subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest ... would tie the hands of States seeking to assure that elections are operated equitably and efficiently....
Instead, ... [a] court considering a challenge to a state election law 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 plaintiffs rights.”
Burdick, 504 U.S. at 433-34, 112 S.Ct. 2059 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)); Tashjian v. Republican Party of Conn., 479 U.S. 208, 213-14, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986).
So Burdick adopts a flexible standard, and as I read it, strict scrutiny may still be appropriate in cases where the burden, as it is here, is great and the state’s justification for it, again as it is here, is hollow. At the very least, I would apply a standard here that would at least be something close to “strict scrutiny light.” Applying that standard, I would conclude that Indiana’s law imposes an undue burden on a recognizable segment of potential eligible
. Ultimately, Carson, a Democrat, won her seat with a 54-46 advantage over her Republican opponent. Although it was not in the Hoosier state, Mark Sanford, the Republican governor of South Carolina, was prevented from voting last month when he showed up at his polling station without the correct ID to vote.
