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Supreme Court Upholds Indiana Voter ID Law, But Majority Question Burden on Religious Objectors

By Howard Friedman

Today in Crawford v. Marion County Election Board, (S.Ct., April 28, 2008), the U.S. Supreme Court by a vote of 6-3 upheld Indiana's voter identification law against a facial constitutional attack. Much of the challenge to the law focused on the burdens the law imposes on eligible voters who do not have a valid voter ID, including those with religious objections to being photographed. (See prior related posting.) Justice Stevens' opinion announcing the judgment of the court, which was joined by the Chief Justice and Justice Kennedy, held that for most voters the burden of obtaining the free state voter ID card is not substantial, and while there may be a few voters for whom the burden is not justified, that does not entitle plaintiffs to have the law struck down on its face. Two dissenting opinion disagreed and found the burdens less justified. However, a close reading of the opinions indicate that a majority of the justices believe that the voter identification law imposes an impermissible burden on voters who have religious objections to being photographed.

Under Indiana's law, even though religious objectors may obtain state drivers licenses without a photo on them, these do not suffice for voting purposes. Those voters must cast a provisional ballot in every election, and then each time travel to the circuit court clerk's office within ten days and execute an affidavit. Justice Stevens, writing for three justices, said (at fn. 19):

Presumably most voters casting provisional ballots will be able to obtain photo identifications before the next election. It is, however, difficult to understand why the State should require voters with a faith-based objection to being photographed to cast provisional ballots subject to later verification in every election when the BMV is able to issue these citizens special licenses that enable them to drive without any photo identification.

Justice Souter, writing in dissent for himself and Justice Ginsberg, said:

regardless of the interest the State may have in adopting a photo identification requirement as a general matter, that interest in no way necessitates the particular burdens the Voter ID Law imposes on poor people and religious objectors. Individuals unable to get photo identification are forced to travel to the county seat every time they wish to exercise the franchise, and they have to get there within 10 days of the election.... Nothing about the State's interest in fighting voter fraud justifies this requirement of a post-election trip to the county seat instead of some verification process at the polling places.

Justice Breyer's dissent also found the burden on those lacking the required ID to be disproportionate, though his opinion focuses primarily on the burden imposed on indigents. On the other hand, Justice Scalia writing for himself, Justice Thomas and Justice Alito saw no problem in treating the ID requirement as merely a neutral law of general applicability for which the state is not required to create a religious exemption. The New York Times reports further on the decision. [Thanks to Blog from the Capital for the lead.]

Full post as published by Religion Clause on April 28, 2008 (boomark / email).