Photo Identification Laws and the Unraveling of Strict Scrutiny

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Bruser Law

San Diego, CA


I. Introduction

What sets the United States apart from much of the world is the integrity of our voting system, and our citizens’ freedom to participate in it.  The franchise is a right that transcends traditional dividing lines such as race, religion, gender, and income – lines that have far too often pitted Americans against each other.  This right to vote is woven throughout the United States Constitution.  In 1788, when the Constitution was originally ratified, Article 1, Section 2 empowered citizens to elect a “House of Representatives [that] shall be composed of Members chosen every second Year by the People of the several States.”[1] Since this initial step toward creating a guaranteed franchise, the Constitution has been amended four times – the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments - to specifically expand voting rights to racial minorities, women, low-income citizens, and persons as young as eighteen, respectively.[2] Considering only twenty-seven Amendments to the Constitution have been ratified during the republic’s entire history,[3] it speaks to the significance that the United States places upon the vote that four of the Amendments expand this right.

Despite this significance, election law has largely been subcontracted to the states, and today many states abuse their legal capacity to dictate voting laws.  State legislatures controlled by the Republican Party have been voting on, and in some instances passing, voter identification laws, which, as this writing will make clear, violate the Equal Protection Clause of the Fourteenth Amendment. When lawmakers pass laws that impact categories of citizens differently, equal protection issues arise. Photo identification laws disproportionately affect black voters,[4] the very voters who supported Barack Obama over John McCain by a ninety-five percent to four percent margin.[5] This suggests that the Republican Party supports voter identification laws in an attempt to purposefully disenfranchise black voters.  The Supreme Court has held that any law that intentionally discriminates on the basis of race – either facially, by unequal administration of the law, or by impermissible motive – must pass strict scrutiny to be constitutional.[6] The only contemporary Supreme Court case to test the constitutionality of photo identification laws, Crawford v. Marion County, upheld a photo identification law under rational basis review – a stunning departure from the Court’s own precedent regarding equal protection with regard to suspect classifications such as racial minorities.  The Supreme Court reached an untenable position, and it should revisit its decision by subjecting any future photo identification laws to strict scrutiny.

This paper will (1) explore the voting history of African Americans in the United States, starting with the Constitution’s Reconstruction era Amendments, continuing through the Civil Rights era, and concluding with the disputed 2000 presidential election between George W. Bush and Al Gore, (2) examine voter identification laws and their effects on African Americans, from their inception to the landmark Supreme Court decision that declared such laws constitutional under rational basis review and (3) argue that the next time the Supreme Court decides the constitutionality of a photo identification law, it must apply strict scrutiny.

II. The History of African Americans and the Vote

A. From the Founding of the Republic through Reconstruction

Before the Framers even ratified the Constitution, the original thirteen colonies developed their own laws regarding voter eligibility.[7] These colonies would later transform into rudimentary entities that, today, are the Atlantic coastal states.  The early colonies generally determined voting rights based on property ownership[8] and, during this period, a number of colonies, both in the north and south, allowed free blacks to vote.[9] But with the ratification of the Constitution and significant power outsourced to the young nation’s several states, any semblance of voting rights for blacks deteriorated.  Most states had restricted the right of blacks to vote by 1860,[10] the year that Abraham Lincoln was elected President.[11]

Lincoln’s election, as an anti-slavery candidate, to the presidency in 1860 set off a chain reaction that began with seven southern states seceding from the Union and ended four years later with 620,000 dead soldiers and the United States bitterly divided from the Civil War.[12] The conclusion of the Civil War brought about the passage of the first of three Reconstruction era Amendments, the Thirteenth Amendment, which declared that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.”[13] The freedom the Thirteenth Amendment afforded to blacks reopened the door for them to gain access to the franchise through the Fourteenth and Fifteenth Amendments.

The Fourteenth Amendment, ratified in 1869, declared that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.  No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”[14] The language of this Amendment is significant because, for the first time, blacks could not be denied citizenship if they were born in the United States. More importantly, citizenship carries with it a multitude of rights at the state level, one of which is usually the right to vote.[15] It was the Fifteenth Amendment, however, that directly enfranchised African Americans.

The Fifteenth Amendment, ratified in 1870, had the tandem purpose of both reaffirming the black franchise in Union states as well as confirming the black franchise in the former confederate states.[16] The Amendment reads “[t]he right of citizens to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”[17] Despite enshrining the vote into the nation’s governing document, the Amendment ultimately did little to make the vote more available to blacks.

B. Protecting the Black Vote Post-Reconstruction: A Façade

The passage of the Fourteenth and Fifteen Amendments strongly implied that the right of blacks to vote both existed under, and would be protected by, the text of the Constitution.[18] But for the next eighty years, white America forced black voters to overcome substantial obstacles just to get into the voting booth.  The first hints of disenfranchisement occurred a mere seven years after the passage of the Fifteenth Amendment, when Georgia adopted a poll tax requiring voters to pay a fee to vote.[19] By 1904, all the former confederate states had adopted similar poll taxes.[20] Such taxes were constitutionally legal, so long as they did not explicitly distinguish between white and black voters.[21]

Poll taxes set up an economic status requirement that, while facially neutral, ultimately disenfranchised countless African Americans who could not afford to pay the stiff fee to vote.[22] In the late 1800s, poll taxes cost up to $2.00 annually, an exorbitant amount of money at the time that few blacks could muster.[23] Additionally, state governments established convoluted procedures that made voting almost impossible for many blacks.[24] For example, tax assessors would not notify taxpayers that they could pay their poll taxes at the same time as they paid their state taxes.[25] As a result, delinquent poll taxes accrued, and these taxes had to be paid in full before a voter could vote.[26]

Such voting schemes created an environment in which black participation in the political process fell sharply.  In Alabama, the eligible black voting population plummeted to less than two percent.[27] Virginia implemented a poll tax in 1903, and seven years later black registration had fallen to fifteen percent, while white registration remained steady at eighty percent.[28] But for all the hardship that the poll tax caused black voters, it also disenfranchised many poor white voters in the rural South, leading even racist legislators to conclude that poll taxes were not the best method to restrict voting rights.[29] This conclusion paved the way for the Twenty-Fourth Amendment, which declared poll taxes unconstitutional.[30]

C. The Civil Rights Era and Beyond

By the 1960s, many political leaders embraced further black equality, and the Twenty-Fourth Amendment of 1964 created the foundation upon which the Civil Rights Act and Voting Rights Act could stand strong.  The text of the Amendment says that “[t]he right of citizens of the United States to vote in any primary or other [federal] election… shall not be denied or abridged by the United  States or any State by reason of failure to pay any poll tax or other tax.”[31] The Supreme Court further declared in 1966 that poll taxes violated equal protection,[32] holding that one’s economic status had no relation to the right to vote.[33] This holding, coupled with the Twenty-Fourth Amendment and the Civil Rights Act of 1964, further ushered voting inequality into the racist dustbins of history and increased the black vote from the paltry numbers earlier in the century. Of note, black registration actually climbed to thirty-eight percent in the old confederacy.[34]

The Voting Rights Act presented an additional landmark victory in the fight for voting rights.  President Lyndon Johnson signed the Act in 1965 after Martin Luther King led voting rights advocates in a march from Selma to Montgomery, Alabama.[35] The Act reaffirmed the Fifteenth Amendment, and its passage saw immediate results.  Notably, black registration in Mississippi swelled from 6.7% to 59.8%.[36] Due to sunset provisions, the Voting Rights Act repeatedly expires, but every time it has done so, Congress has renewed and strengthened its provisions.[37]

From the historic successes of the 1960s through the year 2000, blacks flexed their political muscle, voting disproportionately for Democrats.  In 1992, Bill Clinton won over seventy-five percent of the black vote.[38] Eight years later, in 2000, Al Gore won the votes of ninety percent of African Americans.[39] That election, however, was fraught with allegations of black disenfranchisement,[40] leading to a decade of acrimony and partisanship where the political became especially personal.  The 2000s were a far cry from the 1980s, when Ronald Reagan, a Republican, and House Speaker Tip O’Neill, a Democrat, routinely drank and told jokes after a day of partisan fighting.[41] Since 2000, ad hominem attacks have become the new normal in politics.  In such a hyper-partisan environment, each side of the political aisle tries in various ways to game the political system to benefit their ideology.

Unfortunately, the most egregious vestiges of yesteryear are now cropping up across the nation.  The following evidence makes clear that passing voter photo identification laws is a deliberate attempt by Republican state legislators to disenfranchise black voters. As suggested in the introduction, these laws should be subject to the high standard of strict scrutiny and declared unconstitutional.

III. Playing Politics with the Black Vote: The Discriminatory Purpose of Photo ID Laws

A. The False Argument of Fraud

The state legislators who have proposed and passed laws requiring photo identification argue that such laws are necessary to prevent voter fraud, which, they claim – often with extreme hyperbole – is so prevalent that it threatens western democratic civilization. But those who allege such impropriety often fail to cite any evidence to support their assertions.

One such prominent figure is Dick Armey, a former Republican Congressman from Texas.[42] Armey served as the House Majority Leader during the Republican revolution of the 1990s and was instrumental in ushering then-Speaker Newt Gingrich’s Contract with America through the House of Representatives.[43] Since retiring from the House in 2002,[44] Mr. Armey has served as the CEO of Freedomworks, one of the country’s most preeminent “Tea Party” organizations.[45] In early 2010, Mr. Armey told top Republican donors that voter fraud was occurring in “major urban areas” and “the inner cities.”[46] Richard Hasen, the author of The Fraudulent Fraud Squad, which examines Republican attempts to alter voting processes in the country, declared Armey’s comments were “an unmistakable reference to African American voters…”[47] Not only did Mr. Armey never offer any evidence of fraud, but the Democratic Party suffered a massive defeat at the polls in the 2010 midterm elections, essentially disproving Mr. Armey’s theory that voting fraud was prevalent and benefitting Democrats.[48]

Kris Kobach, the current Secretary of State of Kansas, also stepped into the fray, alleging widespread voter fraud.[49] Mr. Kobach’s campaign website argues that “illegal registration of alien voters is pervasive[,]”[50] though, just like Mr. Armey, Mr. Kobach fails to provide any credible evidence to support his conclusion.[51] Mr. Kobach does actually single out a man named Alfred K. Brewer as a deceased voter who cast a ballot.[52] However, when the local newspaper investigated Mr. Brewer, they discovered that this alleged “zombie voter”[53] was in fact alive.[54]

The most blatant attempt at marrying voter fraud with minority voting occurred in St. Louis, Missouri.  Just prior to the 2000 presidential election, the St. Louis Board of Election Commissioners purged the voter rolls without following the guidelines set forth in the national Motor Voter Law.[55] Upon doing so, the board made no effort to notify up to 50,000 voters in St. Louis county that they had been purged.[56] Blacks make up twenty-three percent of the electorate in St. Louis county;[57] within the city of St. Louis, the number jumps to forty-nine percent.[58] On election day, bedlam descended on St. Louis precincts, forcing a Missouri appeals court to keep the polls open longer for the thousands of black voters who found their names removed from the rolls.[59] Statewide, Al Gore lost Missouri by only 80,000 votes, suggesting that if voter purges had taken a similarly significant toll in other parts of the state, the final result might have been different.[60] The Missouri fiasco became national news when United States Sen. Kit Bond, the patriarch of Missouri Republicans, descended upon the Senate floor to condemn the chaos.  But instead of criticizing the purge of St. Louis voters, a significant portion of whom were African American, Sen. Bond histrionically lashed out at the appeals court, alleging that keeping the polls open “represents the biggest fraud on the voters in this state and nation that we have ever seen.”[61] Later investigations by then-State Auditor Claire McCaskill, a Democrat, found there were, at most, twenty-eight cases where voters may have voted more than once, and every single one remained unconfirmed.[62]

It seems likely that Republican partisans such as Mr. Armey, Mr. Kobach, and Mr. Bond trumpet unsubstantiated anecdotes for purely partisan reasons, and that these anecdotes are used to justify voter photo identification laws. The facts make clear, though, that there is no reason to fear such fraud.

B. No Reason to Fear Fraud

For every unsubstantiated instance of alleged voter fraud bandied about by Republican partisans, there is a substantiated instance that proves this fear is unfounded.  Across the country, studies and investigations have turned up little more than isolated instances of voting problems, and most occurrences lacked any requisite intent that could classify them as fraudulent.[63]

One such study occurred in 2005 and investigated allegations of voter fraud in Ohio.  This study found exactly four instances of ineligible persons voting or attempting to vote in the 2002 and 2004 elections, out of nine million votes cast.[64] From 2002 to 2005, the Justice Department convicted only five people for voting multiple times,[65] and most of the others who were charged had no intent to engage in voter fraud, but had “mistakenly filled out voter registration forms” or “misunderstood eligibility rules.”[66] From 2002 to 2007, federal prosecutors only prosecuted eighty-six people for voter fraud, and most turned out to be immigrants who made mistakes,[67] especially in bilingual locals such as Miami.[68] Most proven cases of voter fraud involve absentee ballots or registration drives, neither of which requires providing photo identification at a polling precinct.[69] Indeed, of the seventy federal convictions for “election crimes”[70] from 2002 to 2005, forty-four of those prosecuted were campaign workers, election workers, and government officials, not voters.[71]

C. Photo Identification: An Exclusively Republican Notion

In the 2002 midterm election, the first major election after the 2000 presidential debacle, fourteen states required some form of identification to vote; four years later, twenty-six states did.[72] Between 2005 and 2007, ten states considered voter identification laws, and of the 1,222 legislative Republicans nationwide to vote on such bills, 95.3% of those Republicans voted in favor of them.[73] In contrast, of the 796 legislative Democrats who voted on the bills, 98.9% voted against photo identification.[74] In fact, every state that has passed stricter identification laws has done so under the purview of Republican legislatures; not a single Democratic-controlled legislature has voluntarily introduced such legislation.[75] In only the past few years, Democratic governors in Minnesota, Missouri, Montana, New Hampshire, and North Carolina have all vetoed photo identification laws rammed through state legislatures by Republicans.[76] The most aggressive attempts by such Republicans to pass these laws have occurred only since 2010, after Republicans swept to victory in the 2010 midterm elections and gained substantial majorities in many state legislatures.[77]

A cursory look at some of the state legislatures that voted on photo identification further clarifies the partisan split.  In Georgia, a 2005 photo identification bill received the support of eighty-nine state House Republicans, plus two Democrats.[78] The state Senate vote polarized along similar lines, with thirty-one votes in favor of the bill, all of which were cast by Republicans, and twenty votes opposed, eighteen of which were cast by Democrats.[79] When Republicans reintroduced another identification law one year later, thirty-two senators cast votes for the bill; each senator was a Republican.[80] Across the border in South Carolina, the vote was not only partisan, but racialized as well.  Not a single black member of South Carolina’s legislative black caucus voted in favor of the state’s identification law.[81]

Republican attempts to shepherd photo identification laws through state legislatures have also been championed by pseudo-independent groups with deep ties to the national Republican establishment.  One such group is the American Legislative Exchange Council, or ALEC, a nonprofit headquartered in Washington, D.C. that “brings together state legislators and corporations to promote conservative policies.”[82] Funded by the Koch brothers,[83] who are known for donating to Republican causes,[84] ALEC proposed its own model legislation for photo identification laws, and many states then structured their own laws upon ALEC’s model.[85] Kansas, South Carolina, Tennessee, Texas, and Wisconsin all passed photo identification legislation with the assistance of legislators who were or had been ALEC members.[86] In fact, a co-sponsor of the Wisconsin photo identification law was the former Wisconsin state chairman of ALEC and current Senate Majority Leader, Scott Fitzgerald. Fitzgerald, a favorite of national conservatives, is currently running for the United States Senate.[87]

The American Center for Voting Rights, or the ACVR, also shook Republicans into a frenzy over trumped up charges of voter fraud.[88] An obscure group helmed by Mark Hearne, a deeply-connected Republican activist from St. Louis, Missouri, the ACVR did not even exist until a few days before Mr. Hearne was called by Republican Congressman Bob Ney to testify in 2005 about voting irregularities in Ohio during the 2004 presidential election between George W. Bush and Sen. John Kerry.[89] Testifying before Congressman Ney, Mr. Hearne identified urban Democratic cities as “hot spots” for voter fraud, and he specifically singled out states targeted by both Republicans and Democrats as presidential battleground states.[90] After stirring the pot and raising false hysteria, the group dissolved as if it had never existed.[91]

D. Republican-Sponsored Photo Identification Laws Deliberately Target Black Voters

As we have seen, not only is the fear of widespread voter fraud unfounded, but Republicans manufactured this fear, and for political reasons.  Because such fear is both unfounded and motivated by politics, it is important to explore exactly which voters will be disenfranchised by photo identification laws.

Research shows that voter identification laws are substantially more likely to affect Democratic voters, particularly minorities and urban voters.[92] These voters are less likely to drive, less likely to maintain current valid identification, and less likely to have the money required to go through the process of obtaining a photo identification.[93] In South Carolina alone, 178,000 eligible voters lack photo identification, and must pay for a passport or birth certificate to justify their identity.[94] Some have called South Carolina’s onerous requirements the “stepsister to the poll tax,”[95] though a more apt name might be the poll tax’s first cousin once removed, since the law requires that instead of paying to vote, one must pay for identification to vote.  In South Carolina, elderly African Americans, who often have no record of their birth, will be forced to go to court to prove their identity, and for those blacks who do acquire a valid birth certificate, going to the DMV to then get a photo identification can be “hellishly time-consuming.”[96]

Assuming many voters will be burdened such that they cannot vote, who exactly will end up being disenfranchised?  According to the Brennan Center, which bills itself as a “non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice[,]”[97] nearly eleven percent of Americans do not have a government-issued photo identification.[98] This equates to twenty-one million persons.[99] Another advocacy group, Color of Change, which “exists to strengthen Black America’s political voice[,]”[100] asserts that up to five million persons could be disenfranchised by photo identification laws.[101] George Washington University law professor Spencer Overton provides perhaps the most startling statistic – that mandating photo identification would prevent over 1,000 legitimate votes for every single improper vote prevented.[102]

However, these numbers alone do not make clear the threat that voter identification laws distinctly pose to African American voters.  At least twenty-five percent of voting-age blacks nationwide do not possess the type of photo identification required by the most stringent identification laws.[103] During the 2006 midterm elections, only five states strictly mandated photo identification, yet forty-nine percent of voters nationwide were asked for such identification, and blacks were more likely to be asked than whites.[104] Wisconsin’s photo identification law may have an especially detrimental effect on black voters.  Around half of all black voters in Wisconsin don’t have driver’s licenses, and Republican Governor Scott Walker recently shut down sixteen DMV’s in urban, Democratic-leaning areas, while reopening them in rural, conservative strongholds.[105]

Perhaps the most transparent assault on black voting rights, though, emerged not even from a photo identification law, but from the wreckage of the Association of Community Organizations for Reform Now, or ACORN.  The “largest neighborhood-based antipoverty group in the country[,]” ACORN mobilized and registered low-income voters who were disproportionately African American.[106] The group’s downfall can be traced to March 2006, when George W. Bush nominated Bradley Schlozman, a lawyer with no prosecutorial experience, to serve as U.S. Attorney for the Western District of Missouri.[107] Mr. Schlozman, who Mr. Bush ironically plucked from the Civil Rights Division of the United States Justice Department, replaced Todd Graves, the previous U.S. Attorney who, despite the behest of the White House and the aforementioned Mr. Hearne from Missouri, refused to prosecute ACORN for voter fraud.[108] Upon taking office, Mr. Schlozman immediately trained his legal arsenal on ACORN, alleging widespread fraud simply because several ACORN registration collectors in Kansas City had submitted fraudulent forms.[109] By 2010, ACORN collapsed under the weight of its own scandals and closed its operations.[110]

While a few bad volunteers clearly threw ACORN on the political defensive, the Republican response whitewashed the civic good that ACORN accomplished by turning the now-defunct organization into a conglomerate of black radicals hellbent on destroying democracy.  Matthew Vadum of the American Spectator, a strongly conservative publication, said that “[the job of] community organizer can also lead to a very rewarding career in crack cocaine trafficking… Oh yes. It is a straight line from community organizing to crack cocaine trafficking. Community organizers use crack cocaine in exchange for votes.”[111] Mr. Vadum is also on record claiming that registering the poor to vote is “un-American” and is akin to “giving burglary tools to criminals.”  Mr. Vadum concludes that “[i]t is profoundly antisocial and un-American to empower the nonproductive segments of the population to destroy the country, which is why Barack Obama zealously supports registering welfare recipients to vote.”[112] A cursory examination of poverty statistics makes clear exactly who Mr. Vadum has in mind – blacks. In 2010, twenty-seven percent of blacks lived in poverty, compared to only nine percent of non-Hispanic whites.[113] The Republican assault on organizations such as ACORN that registered black voters, while the Republican Party, at the same time, pushes photo identification laws, makes clear that the intention of photo identification laws is to disenfranchise black voters – making such laws clear violations of the Equal Protection Clause of the Fourteenth Amendment.

IV. Discriminatory Laws Must Be Held to the Standard of Strict Scrutiny

A. The Origin of Strict Scrutiny

1. From Rational Basis to Strict Scrutiny

The Supreme Court evaluates the constitutionality of laws along a continuum of standards.  The least rigorous standard, rational basis review, often upholds state laws that are “a policy choice in an experimental program made by [a] branch of Government vested with the power to make such choices.”[114] In other words, as long as “the line government has drawn is related in a discernible way to the achievement of a permissible government purpose[,]”[115] a law will be held to be constitutional.[116]

At the other end of the spectrum falls the most rigorous standard of review, strict scrutiny, a standard that germinated from cases challenging laws that drew legal lines based on race.[117]

2. Strict Scrutiny for Race-Based Classifications

According to the Court, “the Equal Protection Clause demands that racial classifications… be subject to the ‘most rigid scrutiny,’[118] and, if they are ever to be upheld, they must be shown to be necessary to the achievement of some permissible state objective.”[119] Additionally, the state objective must be compelling.  When determining whether a law that disadvantages a racial minority is a racial classification, the Court looks at whether the law “explicitly draws racial lines or… is motivated by a racial purpose.”[120] If the law does, “the court will use strict scrutiny and probably invalidate it.”[121] The Court has further defined an intentional discriminatory purpose as one where “the decisionmaker [selected] or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of’ its adverse effects upon an identifiable group.”[122] As the above evidence makes clear, photo identification laws are “motivated by a racial purpose,”[123] and as such, any law that is deliberately motivated by race, such as photo identification laws, should be subjected to strict scrutiny.

3. From Bush v. Gore to Crawford

Even before the disputed 2000 presidential election, the federal government became involved in regulating elections.  In 1993, Congress passed the National Voter Registration Act, which mandated that states offer a method to register to vote while applying for or renewing driver’s licenses.[124] But because of the 2000 election fiasco, which left millions of voters, black and otherwise, skeptical of the voting process’s legitimacy, Congress once again intervened.  In an attempt to make voting easier, Congress passed the Help America Vote Act, or HAVA.[125] According to the Department of Justice, the legislation “improves the administration of elections in the United States through three means[:] creating a new federal agency to serve as a clearinghouse for election administration information[,] providing funds to states to improve election administration and replace outdated voting systems; and creating minimum standards for states to follow in several key areas of voter administration.”[126] Such federal intervention was an important step.

Yet, despite such attempts at the federal level to make voting more accessible, states are passing identification laws with, as is evidenced above, racially-motivated purposes.  The only law to have thus far been decided under Supreme Court jurisprudence is the photo identification law passed in the state of Indiana.

B. A Federal Challenge to Indiana’s Photo Identification Law

In 2008, the Supreme Court decided Crawford v. Marion County Election Board and, in doing so, essentially rejected its own precedent that race-based classifications should be subject to strict scrutiny.  The holding set forth a new precedent that has encouraged state legislatures across the country to pass draconian photo identification laws that disenfranchise black voters.

The genesis of Crawford occurred in the Indiana state legislature, where, in 2005, the state House of Representatives voted 52-45 for a new photo identification law.[127] The vote was entirely partisan, with every Republican voting for it and every Democrat voting against it.[128] After passing in the state Senate, Governor Mitch Daniels, a Republican who had served as Budget Director during George W. Bush’s first term as president,[129] promptly signed the bill into law.[130] The new statute required voters to present a photo identification, issued by either the state or federal government, when voting.[131] The law did provide free photo identification to indigent voters.[132] Under the law, voters without photo identification can cast provisional ballots, but the statute requires them to bring proper identification to the county clerk’s office within ten days.[133] Indigent voters or those with religious objections may also cast provisional ballots, but they must fill out an affidavit within ten days.[134]

The Indiana State Democratic Party and State Representative William Crawford of Marion County – a county with a significant African American population of twenty-seven percent[135] – challenged the law as violating both the Fifteenth Amendment and the Voting Rights Act.[136] The district court upheld the law, and the Seventh Circuit further trampled the Supreme Court’s precedent that racially-motivated laws must be subject to strict scrutiny.[137] Judge Richard Posner voted to uphold the Indiana law under the extremely low standard of rational basis review, alleging that the cost to voters is negligible compared to the benefits of preventing fraud.[138]

But Judge Posner alleged fraud without ever identifying fraud; Posner provides zero evidence to support his conclusion.  While Posner did concede that people who lack photo identification suffer more economically and thus are more likely to vote Democratic,[139] he argues that there is not a voter who “intends” to not vote because of the law.[140] It is important to distinguish, though, that “intending” not to vote because of a law is quite different from not being able to vote because of a law.  Posner’s refusal to distinguish between “intent” to vote and “ability” to vote suggests that he does not accept the Supreme Court’s interpretation that racially-motivated laws must be subject to strict scrutiny.  If Posner were to accept such a premise, his evaluation of Indiana’s law would have instead focused on the results of the law, which Posner admits could lead to less Democrats voting, not voters’ intent despite the law.

What made Judge Posner’s holding especially remarkable, though, was his trivialization of the vote.  According to Posner, persons who have not bothered to obtain photo identification will not do so in the future, if obtaining identification is only to be able vote.[141] Posner alleges that, for any individual voter, the vote is not worth much.[142] Thus, even if the Indiana law is indeed a Republican attempt to suppress Democratic voters, it does not matter in the broader context of voting rights because people simply do not care about the vote.[143] Such a cynical holding bastardizes a political process that has already been bastardized enough by negative television advertisements and personal attacks without Judge Posner breathing down the necks of voters in the voting booth.  The Seventh Circuit dissent by Judge Terrence Evans, in contrast, recognized that voting is a fundamental right. Judge Evans details how the Indiana law should be subject to strict scrutiny, and he goes so far as to assert that the law all but openly attempts to discourage Democratic base voters.[144]

The Seventh Circuit’s decision, just like the law’s passage, divided along party lines. Judges appointed by Republican presidents voted to uphold Indiana’s identification law, while judges appointed by Democrats voted to nullify it.[145] When the case reached the Supreme Court, the Court had to consider whether to hold the law unconstitutional because, as the plaintiffs alleged, the law was a race-based attempt to deny blacks the franchise, placed a virtual poll-tax on low-income voters who skewed African American and thus Democratic, and was not justified due to a lack of evidence of voter fraud.[146]

C. Crawford v. Marion County: A Fundamental Right Denied Under Rational Basis Review

Ultimately, the Court affirmed the Seventh Circuit’s decision,[147] holding that Indiana’s restrictions on the right to vote were valid.[148] The court also identified Indiana’s interest in preventing fraud as a justification for upholding the law.[149] This is especially surprising, considering the court admits that there is “no evidence of any such fraud occurring in Indiana at any time in its history.”[150] As such, the Court clearly upheld the law based entirely on conjecture of what might occur, not based on evidence of what has already occurred.

Justice Stevens noted that for the voters who need photo identification, the possible “inconvenience of obtaining a free card does not qualify as a substantial burden on the right to vote.”[151] He justifies his argument by noting that voters who encounter difficulties while trying to vote may cast provisional ballots.[152] But this justification is based on voters overcoming the additional burdens of filling out affidavits and acquiring the necessary identification within a limited time frame[153] – burdens that often befall African Americans.[154] This alone is sufficient to trigger strict scrutiny under the Supreme Court’s precedent.[155]

Justice Scalia, in his concurrence, applied a balancing test it had previously applied in another voting-rights case.[156] This test arose from a challenge to Hawaii's law prohibiting write-in voting, which, the plaintiff in Burdick alleged, violated the First and Fourteenth Amendments.[157] The Court in Burdick held that the interest of the state in maintaining a voter identification law outweighs any impact it could have on disenfranchising voters, and that even with “‘reasonable, nondiscriminatory restrictions’ upon those rights, the State's important regulatory interests are generally sufficient to justify the restrictions” on voting.[158] This holding outsourced broad powers to state legislators, enabling them to regulate election law with little oversight, which, according to Scalia, empowered Indiana to enact such a draconian law.[159]

Justice Breyer’s dissent in Crawford returned to one of the themes espoused by the plaintiffs – that the law revives a sort of crypto-poll tax.  Breyer explains that some Indiana voters would find it difficult and expensive to trek to the DMV, especially if they resided in cities without public transportation.[160] Additionally, getting documentation, such as birth certificates, which are necessary to apply for government-issued identification, is even more expensive than the poll tax, adjusted for inflation.[161]

The Court’s decision was consequential because it upheld an obviously race-based law under the low standard of rational basis review, when it should have instead subjected the law to strict scrutiny.  Had it been subject to strict scrutiny, the justices would not have been able to deny that Indiana’s law was not a legitimate response to a compelling state interest, nor was the law necessary or narrowly drawn to accomplish such a state interest.  It is deplorable that the court applied minimal scrutiny to Indiana’s law, despite the overwhelming evidence that the purpose of virtually all Republican-sponsored photo identification laws is to disenfranchise African Americans.  Instead, the Court ignored its own precedent and upheld a blatantly unconstitutional law.  Because of this new precedent, state legislators now only need to justify photo identification laws’ constitutionality by citing the Supreme Court’s decision in Crawford.

V. Conclusion

As of this writing, multiple state legislatures are still debating, and passing, highly prejudicial photo identification laws.[162] These laws, no doubt, will be challenged as creating race-based classifications.  Should the Supreme Court hear any further cases on photo identification laws, it should keep in mind the explicit, racially-charged agenda of those who passed such laws.

Indeed, Mr. Vadum’s screed, noted earlier,[163] is simply the blueprint for Republican political operatives.  He openly declares that people who are more likely to live in poverty – African Americans, who predominantly vote Democratic – should simply not be allowed to vote in the United States.  Photo identification laws are merely the tonally-neutral method for Republicans to disenfranchise black voters.  The purpose of this commentary is not to suggest a solution to improve voting integrity – a worthy goal that can be legitimately debated.  The purpose is to note that the upsurge of photo identification laws is the result of a select group of partisan individuals who have political interests in suppressing the vote of racial minorities, and that the Supreme Court has failed to uphold its own precedent by not subjecting photo identification to strict scrutiny.  Politics is a game of hardball, but when the tactics turn on polarizing racial distinctions through the law, the Supreme Court needs to be called out when this supposed umpire makes the wrong call.



[1] U.S. Const. art. I, § II.

[2] U.S. Const. amends. XV, XIX, XXIV, XXVI.

[3] U.S. Const.

[4] See infra note 91.

[5] Election Center 2008: President, National Exit Poll, CNN (Nov. 4, 2008),

[6] Loving v. Virginia, 388 U.S. 1, 9 (1967).

[7] Atiba R. Ellis, The Cost of the Vote: Poll Taxes, Voter Identification Laws, and the Price of Democracy, 86:3 Denv. U. L. Rev. 1307, (2009).

[8] Id.

[9] Daniel Hays Lowenstein Et Al., Election Law 32 (Gary J. Sismon et al. eds., 3rd ed. 2004)

[10] Id.

[11] American Civil War, History.Com (Mar. 8, 2012),

[12] American Civil War, History.Com (Mar. 8, 2012),

[13] U.S. Const. amend. XIII.

[14] U.S. Const. amend. XIV.

[15] CA Const. art. II, § II.

[16] Id.

[17] U.S. Const. amend. XV.

[18] Ellis, supra note 5, at 1039.

[19] Lowenstein, supra note 7, at 33.

[20] Id.

[21] Ellis, supra note 5, at 1040.

[22] Id.

[23] Id. at 1041.

[24] Id. at 1042.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Lowenstein, supra note 7, at 38.

[30] U.S. Const. amend. XXIV.

[31] U.S. Const. amend. XXIV.

[32] Lowenstein supra note 7 at 35.

[33] Ellis supra note 5 at 1035.

[34] Lowenstein supra note 7, at 38.

[35] Id. at 39.

[36] Id.

[37] Lowenstein supra note 7, at 39.

[39] How Groups Voted in 2000, Roper Center Public Opinion Archives (Nov. 7, 2000),

[40] Mireya Navarro, Contesting the Vote: Black Voters; Arriving at Florida Voting Places, Some Blacks Found Frustration, N.Y. Times (Nov. 30, 2000),

[41] Gloria Borger, Ronald Reagan, Tip O’Neill and the Clash of the Titans, US News and World Report (June 21, 2004),


[42] Dick Armey, N.Y. Times: Times Topics (Nov. 15, 2010),

[43] Id.

[44] Id.

[45] Id.

[46] Richard Hasen, The Fraudulent Fraud Squad: A Sneak Preview from the Voting Wars From Florida 2000 to the Next Election Meltdown (forthcoming 2012).

[47] Id.

[48] Id.

[49] Ari Berman, The GOP War on Voting, Rolling Stone (Aug. 30, 2011, 7:40 PM),

[50] Kris Kobach on the Issues, Kris Kobach for Secretary of State (Apr. 5, 2012),

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Hasen, supra note 44, at 8.

[56] Id.

[57] St. Louis County, Missouri, U.S. Census Bureau (Mar. 19, 2012),

[58] St. Louis (City), Missouri, U.S. Census Bureau (Mar. 19, 2012),

[59] Hasen, supra note 44, at 10.

[60] 2000 Presidential General Election Results – Missouri, Dave Leip’s Atlas of U.S. Presidential Elections (Apr. 6, 2012),

[61] Id.

[62] Hasen, supra note 44, at 12.

[63] Eric Lipton, In 5-Year Effort, Scant Evidence of Voter Fraud, N.Y. Times (Apr. 12, 2007),

[64] Judith Brown Dianis, Five Myths About Voter Fraud, Wash. Post (Oct. 7, 2011),

[65] Id.

[66] Lipton, supra note 59.

[67] Berman supra note 47.

[68] Id.

[69] Shelley de Alth, I.D. at the Polls: Assessing the Impact of Recent State Voter I.D. Laws on Voter Turnout, 3 Harv. L. & Pol’y Rev. 189, (2009).

[70] de Alth, supra note 44, at 20.

[71] Id.

[72] See supra note 65 at 187.

[73] Hasen supra note 44, at 4.

[74] Id.

[75] de Alth, supra note 44, at 20.

[76] Berman supra note 47.

[77] First, Show Your Face, The Economist (Sept. 17, 2011),

[78] Michael J. Kasper, Where are your Papers? Photo Identification as a Prerequisite to Voting, 3 Fla. A & M L. Rev. 14 (2008).

[79] Id.

[80] Id.

[81] Supra note 69.

[82] Tobin Van Ostern, New Evidence of ALEC Connections in All Successful Voter ID Legislation, Campus Progress (Sept. 8, 2011).

[83] ALEC, Color of Change (Feb. 9, 2012),

[84] David Koch, N.Y. Times: Times Topics (Mar. 6, 2012),

[85] Adam Serwer, GOP, ALEC Could Make it Harder for 5 Million to Cast Ballots, Mother Jones (Oct. 3, 2011, 1:36 PM),

[87] US Senate Candidate and Assembly Speaker Jeff Fitzgerald, Fitzgerald for Wisconsin (Mar. 19, 2012),

[88] Hasen supra note 44, at 13.

[89] Id. at 14.

[90] Hasen supra note 44, at 16.

[91] Id. at 17.

[92] de Alth, supra note 65, at 189.

[93] Id.

[94] Berman, supra note 47.

[95] Id.

[96] Id.

[97] About Us, Brennan Center for Justice (Apr. 5, 2012).

[98] Serwer, supra note 76.

[99] Id.

[100] Color of Change, supra note 74.

[101] Id.

[102] Judith Brown Dianis, Five Myths About Voter Fraud, Wash. Post (Oct. 7, 2011),

[103] de Alth, supra note 65, at 189.

[104] Id. at 193.

[105] Berman, supra note 47.

[107] Hasen, supra note 44, at 29.

[108] Id.

[109] Id. at 30.

[110] Acorn, supra note 96.

[111] Hasen, supra note 44, at 41.

[112] Id. at 45.

[113] Poverty in the United States, National Poverty Center, (Mar. 16, 2012),

[114] Marshall v. United States, 414 U.S. 417, 428 (1974).

[115] Geoffrey R. Stone Et Al., Constitutional Law 489 (Vicki Been et al. eds., 6th ed. 2009)

[116] Id.

[117] Strauder v. State of West Virginia, 100 U.S. 303 (1879).

[118] Loving v. Virginia, 388 U.S. 1, 9 (1967).

[119] Id.

[120] Stone, supra note 15, at 533.

[121] Id.

[122] Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 258 (1979).

[123] Stone, supra note 15, at 533.

[124] National Voter Registration Act, 42 U.S.C.A. § 1973gg-2 (1993).

[125] The Help America Vote Act of 2002, Dep’t of Justice (Mar. 19, 2012),

[126] Id.

[127] Voter ID Bill Passes House, Indiana House Republicans Website (Mar. 21, 2005),

[128] Voter ID Bill Passes House, Indiana House Republicans Website (Mar. 21, 2005),

[129] About the Governor, Homepage of Indiana Gov. Mitch Daniels (Mar. 19, 2012),

[130] Daniels Signs Voter ID Bill; ICLU Plans Lawsuit, Associated Press (Copyright 2005),

[131] Id.

[132] Id.

[133] Crawford v. Marion County Election Board, 533 U.S. 181 (2008).

[134] Id. at 1613.

[135] Marion County, Indiana, U.S. Census Bureau (Mar. 19, 2012),

[136] Crawford 533 U.S at 181

[137] Strauder 100 U.S. at 303.

[138] Ellis, supra note 5, at 1056.

[139] Kasper, supra note 70, at 13.

[140] Id. at 4.

[141] Hasen, supra note 44, at 63.

[142] Id.

[143] Hasen, supra note 44, at 63.

[144] Id. at 62.

[145] Id. at 59.

[146] Ellis, supra note 5, at 55.

[147] Crawford 533 U.S. at 189.

[148] Id. at 189.

[149] Id. at 181.

[150] Crawford 533 U.S. at 195.

[151] Id. at 182.

[152] Id.

[153] Id. at 194.

[154] Berman, supra note 47.

[155] Loving 388 U.S. 1, at 9.

[156] Burdick v. Takushi, 504 U.S. 428 (1992).

[157] Id. at 428.

[158] Id. at 429.

[159] Crawford 533 U.S at 204.

[160] Crawford 533 U.S at 239-40

[161] Id.

[162] James Rosen, S.C. Rep. Clyburn compares voter ID laws to Jim Crow era, Sun Helard. (Apr. 5, 2012).

[163] Hasen, supra note 44, at 45.

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