Matthew Weil and Timothy J. Ryan, Research Assistants, AEI-Brookings Election Reform Project

January 11, 2008

On January 9th, we had the good fortune to attend the US Supreme Court’s oral arguments in Crawford v. Marion County Election Board, the landmark legal test of rules that require voters to show photo identification at the polls when they vote. The petitioners’ argument is an effort to strike down Indiana’s ID law, which is among the strictest in the nation.

The petitioners fought an uphill battle from the start, as the justices generally seemed to accept Indiana’s rationale for the law, namely the need to prevent voter impersonation at the polls. The petitioners deny that such prevention is warranted, given the absence of any impersonation fraud prosecutions in Indiana. At the same time, the justices wondered if Indiana could address the impersonation problem with a less stringent requirement.

For the most part, the justices displayed a good understanding of the surprisingly complicated logistics that go into elections. Two apparent misconceptions should be noted, however. Understanding that the purpose of a photo ID is for an individual to prove that he or she is the voter whose name appears on registration lists and searching for a way to implement an identification requirement in a less controversial fashion, Justice Ginsburg proposed that a photo ID be issued at the time of registration, thus ensuring that all registered voters have easy access to identification. She seemed to be under the impression that all voters register in person. In fact, a large number register through the mail, and so a photo could not be taken on the spot as she seemed to envision.

Second, Justice Souter seemed to characterize the notion that a voter ID requirement might be particularly burdensome as disingenuous. He suggested that the registration process, which is widely accepted, is equally burdensome. On the surface, such a line of reasoning makes some sense, as the 2002 Help America Vote Act (HAVA) requires all new registrants to show proof of identity when they register. It was not clear whether Souter understood that HAVA is much more flexible in its ID requirements for registration; identifications without photographs, including a simple utility bill, are acceptable under federal law.

The most interesting argument may have come from the petitioners’ counsel. It is commonly asserted that most fraud happens away from the polls, through fraudulent registration or absentee voting, as it is easier to submit a large number of fraudulent votes through this method. Absentee voting in Indiana, which is not secured by a photo ID requirement, is subject only to a digital signature match. That is, the signature one gives upon registration is matched by an expert to the signature on the absentee ballot received by the local election board. The Indiana legislature has decided that this is enough security for absentee votes. Why then, the petitioners’ counsel asked, is it any different at the polls? A photo ID-less voter at the polls, he argued, should be allowed to vote provisionally and have his or her ballot signature matched under the absentee voting security regime. Thus, there would be no need for a mandatory photo ID at the polls.

While the Court is unlikely to dictate to states how to carry out their elections, it was certainly interesting to see the openness of the justices to other ways of preventing fraud.

One final item of note: neither of us were asked to show any ID whatsoever on our way into the courtroom of the Supreme Court of the United States.

Matthew Weil can be reached at mweil@aei.org. Timothy J. Ryan can be reached at tryan@aei.org

Viewpoint is an occasional feature in which members of the AEI-Brookings Election Reform Project staff analyze various election reform issues.