Amicus Curiae Brief — Indiana Democratic Democratic Party v. Rokita (Nos. 07-25, 07-21)
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14 gi oe
a a NOY 18 2007
SOPSP Nos 07-21 & 07- | pol tie
IN THE ries fe thy i
Supreme Court of the Anited eiites
WILLIAM CRAWFORD, ET AL.,
Petitioners,
v.
MARION COUNTY ELECTION BOARD, ET AL.,
Respondents.
INDIANA DEMOCRATIC PARTY, ET'AL.,
Petitioners,
v.
TODD ROKITA, ET AL.,
Respondents.
On Writs of Certiorari to the United States
Court of Appeals for the Seventh Circuit
BRIEF OF AMICI CURIAE THE BRENNAN CENTER
FOR JUSTICE; DEMOS: A NETWORK FOR IDEAS &
ACTION; LORRAINE C. MINNITE; PROJECT VOTE;
AND PEOPLE FOR THE AMERICAN WAY
FOUNDATION IN SUPPORT OF PETITIONERS
[PHOTO ID LAW LACKS JUSTIFICATION]
WENDY R. WEISER SIDNEY S. ROSDEITCHER
JUSTIN LEVITT Counsel of Record
RENEE PARADIS J. ADAM SKAGGS
BRENNAN CENTER FOR JUSTICE PAUL, WEISS, RIFKIND,
AT NYU SCHOOL OF LAW WHARTON & GARRISON LLP
161 Avenue of the Americas 1285 Avenue of the Americas
New York, New York 10013 New York, New York 10019
(212) 998-6730 (212) 373-3000
Counsel for Amici Curiae
November 13, 2007
TABLE OF CONTENTS
Page
pe OF dt iby 8 yy | - Sree ill
SOU RS SOW SOU FUE ccccsccccvecscscscerosoepsscocsveseneoes 1
SUMMARY OF THE ARGUMENT................ccesceeseeees 3
TEE, Keiiicnstiiiniciiapininsisitetepiininamibiitanhiiwiiasinianil 6
INDIANA’S PHOTO ID REQUIREMENT
IS AN UNNECESSARY RESPONSE
TO THE EXTREMELY UNLIKELY
AND UNSUBSTANTIATED THREAT
OF POLLING-PLACE IMPERSONATION
A. Polling-Place Impersonation Fraud Is Highly
Unlikely And Exceedingly Rare...................... 11
1. None of the Examples Cited by the
Court of Appeals Indicates That
Polling-Place Impersonation Fraud
Is a Genuine Problem ........................665 11
2. The Additional Evidence Cited by the
District Court and Other Studies Show
That Polling-Place Impersonation
Fraud Is Not A Genuine Problem ........ 18
B. Alleged Perceptions Or Fears of Voter
Fraud Do Not Justify Indiana’s
PROD FP CII occ ccccccccsssessiccocssessssscoses 28
C. A Photo ID Requirement Is Not Needed To
Prevent Possible Impersonation Fraud.......... 31
1. Indiana’s Policies for Identifying Voters
Prior to the Adoption of the Photo ID
Requirement Provided an Adequate
Alternative to Photo ID ..................... 32
2. Less Onerous Methods of Voter
Identification in Other States Provide
Adequate Alternatives to Photo ID......33
IIE cicnscsviaciisviciiniinichetsierenitideaiiiensiuniianiasanédionenta 39
il
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TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Buckley v. Valeo,
a I Aan I icine nendindaigsinenpeiiliags 29, 30
Burdick v. Takushi,
Se i cscninestetehpiicndeicusieltaigsomiansticniindiiad 6,7
Clingman v. Beaver,
4g I cae nn nee en 10
Common Cause /Georgia v. Billups,
406 F. Supp. 2d 1326 (N.D. Ga. 2005)...........0..... 36
Common Cause/Georgia v. Billups,
504 F. Supp. 2d 1333 (N.D. Ga.), appeal filed
No. 07-14664C (11th Cir. 2007)..............0...... 15, 36
Crawford v. Marion County Ele-tion Bd.,
472 F.3d 949 (7th Cir. 2007)...............cceseeeees passim
Crawford v. Marion County Election Bd.,
484 F.3d 436 (7th Cir. 2007)....................scseeeeseeeees 5
Indiana Democratic Party v. Rokita,
458 F. Supp. 2d 775 (S.D. Ind. 2006) ........... passim
Lucas v. Forty-Fourth Gen. Assembly of Colo.,
ee ee Te ctehtciainchiehitiisinictesisibiciainainihpuiiitcipainis 31
iil
McConnell v. Fed. Election Comm’n,
ER a aN a Ra RR DEC 29
McLaughlin v. N.C. Bd. of Elections,
fF 8 LL | ne Suen 6
Munro v. Socialist Workers Party,
OD | aa: eT 10
New Alliance Party v. Hand,
933 F.3d 1668 (llth Cir. 1901)....................0000000.. 7
Purcell v. Gonzalez,
I 7, 25, 30
Reform Party of Allegheny County v. Allegheny
County Dep’t of Elections,
ee ee Is IE hccviinsisvcccscncsctscnrsosnasescote 6
Timmons v. Twin Cities New Party,
SIL So ne 10
United States v. Carolene Products Co.,
Lg ETE en nee rr 9
United States v. Missouri, No. 05-4391-CV-C-NKL,
2007 WL 1115204 (W.D. Mo. Apr. 13, 2007)....... 16
Vieth v. Jubelirer,
alate 8
Williamson v. Lee Optical of Oklahoma,
I licen caritnsnanandonnnbounete 7
iV
STATE CASES
Borders v. King County,
No. 05-2-00027-3 (Wash. Super. 2005),
reprinted in 4 Election L.J. 418 (2005) ............... 17
In re the Protest of Election Returns & Absentee
Ballots in the Nov. 4, 1997 Election for
the City of Miami, 707 So. 2d 1170
(Fla. Dist. Ct. App. 1998) ................ sisiebieuiinseiiiaae 12
Weinschenk v. State of Missouri,
203 S.W. 3d 201 (Mo. 2006).................00. 16, 17, 30
FEDERAL STATUTES
I Ties © Fa vccccensccsaninttonsantinnniingaiaamneiial 26
Ge WES. ©] Bribe C8 GUN, ccciscscnscrinccrnensnisisnibiiianaianion 32
SP A. F Bi iscecsecicesccestictnnsencisiitaiienaieadman 18
GD BABE. F TERG III sccincccsscesesnssisincsiensicitananmsiedamenianin 33
STATE STATUTES
ES S| ae eerae 36
SP TR, © DI ID coecencicsicasnsssstisessasesensieamuamaine 38
IPO. RGR. & De sccvscncisccccmisniinsnceitsuihdnilenieesiuiais 38
KS Sa 37
ERE ESTE a Pe ET 26
Ind. Code § 3-11-8-25 (2002) ......... cece eee eeeeeeeees 32
Ind. Code § 3-11-8-25 (2004) .................. eee eeeeeeeees 33
Ind. Code § 3-11-8-22 (2002) 0.0.0... eee eeeeeee 32
Ind. Code § 35-50-2-7(a) (2002)... 0. .cccccccccseeseeeeeeees 26
La. Rev. Stat. Ann. § 18:562(A)(2)....0...0....ccc eee 37
Mich. Comp. Laws § 168.523 ................ccccocccesscsccceees 37
Mass. Gen. Laws Chapter 54, § 76.................c0.2c0000 35
Pils CI, GUNN, BH CROP ccccccccccccecescccsccssssecessssssseses 35
Ms Oe III cisinctcccccssceconssousetseonsessessonsouee 35
BE Ue IIIS UF IIE © cpeccccecccesesscvecccccecoceeessonsescoes 35
I TT isi see dnapemnnechentingteonesnemnetennsasoontes 36
LS Ens e D TT EIT 36
S.D. Codified Laws § 12-18-6.2 .0............ cee eeceeeeeeeeee 37
Utah Code Ann. § 20A-3-104 00.0.0... eeeeeeeeeeeeee 35
Vi
LEGISLATIVE MATERIALS
148 Cong. Rec. S10491 (2002)
(Statement of Sen. Bond)...................cccccee eee
BONE. PDs, BEDS GO, © BBG cccescceccensescescscccscoessescsnees
MISCELLANEOUS AUTHORITIES
Matt A. Barreto, et al., Voter ID Requirements
and the Disenfranchisements of Latino,
Black and Asian Voters, 2007 American
Political Science Ass’n Annual Conference,
es is ET ecicsishcenseinihinideidaiinaisninabaiiaindabaipacciieinnenes
Greg Borowski, A New Push To Repair
Elections, Milwaukee Journal-Sentinel,
ee es iicnakadeinleviddidtndaiaipiseiiuiiidesioneinciin
Brennan Center & Michael McDonald,
Analysis of the September 15, 2005 Voter
Fraud Report Submitted to the New Jersey
Attorney General (Dec. 2005)...............ccceeeeeees
Brennan Center & Spencer Overton, Response
to the Report of the 2005 Commission on
Federal Election Reform (Sept. 19, 2005).......
Jimmy Carter and James A. Baker III, Voting
Reform Is in the Cards, N.Y. Times, Sept.
SE SMUD iscincisncniisincenitinntininemnianidtanpeanineinpetaatantitinne
Vil
Kelly Chesney, Special Letter: Claims That the
“Dead” Voted Were Wrong, Detroit News,
eNO oe ete ne 14
Coalition of Homelessness and Housing in
Ohio & League of Woman Voters Coalition,
Let the People Vote (2005)..............:cceseeeeeeeeess 24, 25
Lisa Collins, In Michigan, Even Dead Vote,
Detroit News, Feb. 26, 2006 ..............0..0ce ee. 14
Commission on Federal Election Reform,
Building Confidence in U.S. Elections
RRR Re Fo 22
Secretary of State Cathy Cox, The 2000
Election: A Wake-Up Call for Reform and
I SEI siciisscivtsiniiniociieioniidtietiitcinaiidncansinate 15
DOJ, Election Fraud Prosecutions &
Convictions, Oct. 2002 — Sept. 2005............... 20, 26
Electionline.org, Election Reform: What’s
Changed, What Hasn’t and Why 2000-2006
RSE ewe IR rare ree nT Re ene 32, 34, 35
Electionline.org, Voter ID Laws
es Ses A sceciisiensiinsnseielinescmnicennisessignbeeneie’ 34, 35, 36
Hawaii Office of Elections, Chairperson and
Voter Assistance Official’s Manual (2006).......... 37
Hawaii Office of Elections, How to Vote at the
Polling Place (Nov. 9, 2007) ..................cccceceeeeeees 37
Vill
M.V. Hood & Charles S. Bullock, Worth a
Thousand Words? An Analysis of Georgia’s
Voter Identification Statute (Apr. 2007)................ 8
John Fund, Stealing Elections (2004)............ 15, 21, 22
Justin Levitt, The Truth About Voter Fraud
I a la ah 1, 16
Phuong Cat Le & Michelle Nicolosi, Dead
Voted in Governor’s Race, Seattle Post-
Intelligencer, Jan. 7, 2005....................cceeeeee 17, 18
Eric Lipton & Ian Urbina, Jn 5-Year Effort,
Scant Evidence of Voter Fraud, N.Y. Times,
Sc EET sibiuiihinendianihitcichalinciidiniiommaniinenbiiindlainiiedl 20
Lorraine C. Minnite, An Analysis of Voter
SN i SC ik icicisictnccctscicitacdslinininsiante 2,16
Lorraine C. Minnite and David Caliahan,
Securing the Vote: An Analysis of Election
I acininicesissiniitiattiatnindninsinntdbaiegleilanaplininia passim
Media Matters, John Fund’s Book on Voter
Fraud Is a Fraud (Oct. 31, 2004) .............cc eee. 22
National Conference of State Legislatures,
State Requirements for Voter Identification
I Sea aciiiishicisiashiiteiiiebniibataaninentitantiiiiaiainloaniede 34, 37
Spencer Overton, Establishing Procedures for
Credible Advisory Commissions (2005)............... 23
Greg Palast, The Wrong Way to Fix the Vote,
Pe ns IY I 15
iX
John Pawasarat, The Drivers License Status of
the Voting Age Population in Wisconsin,
University of Wisconsin—Milwaukee (2005).....
Press Release, DOJ, Fact Sheet: Department of
Justice Ballot Access and Voting Integrity
Initiative (July 26, 2006)............. eee eeeeceeeeee eens
Preliminary Findings of Joint Task Force
Investigating Possible Election Fraud
“SD "SSS se
Larry J. Sabato & Glenn R. Simpson,
Dirty Little Secrets (1996)...............ccccseeeseeeeeeeees
Steve Schultze, No Vote Fraud Plot Found,
Milwaukee Journal-Sentinel, Dec. 5, 2005.......
Wendy Simmons, Black Americans Feel
Cheated by Election 2000, Gallup News
Service, Dec. 20, 2000 ...................cccceeeeeeeeeceeceees
Van Smith, Election Nights of the Living Dead,
Baltimore City Paper, June 22, 2005................
Ian Urbina, Panel Said To Alter Finding on
Voter Fraud, N.Y. Times, Apr. 11, 2007 ...........
Tova Wang, A Rigged Report on U.S. Voting?,
Wash. Post, Aug. 30, 2007 200.0... cece ceeeeeeeeeeeees
INTEREST OF THE AMICI’
The Brennan Center for Justice at NYU School
of Law (the “Brennan Center”) is a nonpartisan
institute dedicated to a vision of effective and
inclusive democracy. Through its Voting Rights and
Elections project, the Brennan Center seeks to
protect rights to equal electoral access and full
political participation. The project has extensively
addressed issues relating to alleged voter fraud and
methods for preventing it, tracking the national
experience with legislation relating to election fraud,
co-authoring three major reports on the subject,’ and
Pursuant to Rule 37.6, amici curiae certify that no
counsel for a party authored this brief in whole or
in part and that no person or entity, other than
amici curiae and their counsel, made a monetary
contribution to its preparation or submission. The
parties have filed letters consenting to the filing of
any amicus curiae brief with the Clerk of the
Court.
See Justin Levitt, The Truth About Voter Fraud
(Oct. 2007), http://www.truthaboutfraud.org/pdf/
TruthAboutVoterFraud.pdf (“Truth About Voter
Fraud”); Brennan Center & Michael McDonald,
Analysis of the September 15, 2005 Voter Fraud
Report Submitted to the New Jersey Attorney
General (Dec. 2005), http://www.brennancenter.
org/dynamic/subpages/download_file_35010.pdf;
Brennan Center & Spencer Overton, Response to
the Report of the 2005 Commission on Federal
Election Reform (Sept. 19, 2005), available at
participating as counsel or amicus in a number of
federal and state cases involving voting and election
issues. The Brennan Center has participated as
amicus in constitutional challenges to statutes
requiring photo identification (“photo ID”) as a
condition for in-person voting in Georgia and
Albuquerque, New Mexico, as well as before the court
of appeals in this case.
Demos: A Network for Ideas & Action
(“Demos”) is a non-partisan public policy research
and advocacy center. Its Democracy Program focuses
on removing barriers to political participation,
especially those affecting traditionally disfranchised
populations such as communities of color and low-
income citizens. In 2003 Demos published a report by
Lorraine C. Minnite and David Callahan entitled
Securing the Vote: An Analysis of Election Fraud
(updated most recently in September 2007) that is
widely recognized as the most comprehensive survey
available of the extent of voter fraud in U.S. elections.
Lorraine C. Minnite is an assistant professor
in the Department of Political Science, Barnard
College, Columbia University in New York City. She
has written and provided testimony on the incidence
of fraud in elections, and is currently finishing a book
on the subject. She is co-author of the voter fraud
study published by amicus Demos, referred to above,
and cited by the district court in this case.
http://www.brennancenter.org/dynamic/subpages/
download_file_47903.pdf.
tl
Project Vote is a non-partisan, non-profit
organization dedicated to voter participation in the
election process. It assists low-income, minority
citizens to register to vote. It has a strong interest in
ensuring that the individuals it registers are able to
vote and has actively worked to reduce barriers
eligible voters face when attempting to register and
vote.
People for the American Way Foundation
(“PFAWF”) is a nonpartisan citizens’ organization
established to promote and protect civil and
constitutional rights. It has been actively involved in
efforts nationwide to combat discrimination and
promote equal rights, including efforts to protect the
voting rights of all eligible citizens. PFAWF
regularly participates in civil rights litigation, and
has participated in litigation to protect the right to
vote and prevent the disenfranchisement that occurs
when restrictive voter ID laws are enforced.
SUMMARY OF THE ARGUMENT
The district court and court of appeals, while
acknowledging that Indiana had no record of voter
impersonation fraud at the polls, erroneously relied
upon unfounded assertions about the existence of
such voter impersonation fraud elsewhere in the
nation as a basis to uphold Indiana’s photo ID
requirement. In this brief, amici examine the reports
relied on by the district court and the court of
appeals, as well as nationwide studies of voter fraud.
We show that, in fact, there is no more evidence that
polling-place impersonation fraud is a_ problem
outside Indiana than there is in Indiana.
Prior to its enactment of the photo ID law,
Indiana already had in place less onerous and more
appropriately tailored identification methods, as well
as severe criminal penalties to deter impersonation
fraud. Moreover, forty-eight states, the District of
Columbia and the federal government currently use
identification methods that provide less onerous
alternatives to photo identification. Absent evidence
that polling-place impersonation fraud is a problem
in Indiana or anywhere else, Indiana cannot show
that there was any need to impose the additional
burdens of a photo ID requirement to prevent such
fraud.
As the court of appeals acknowledged, a photo
ID requirement imposes burdens mainly on Indiana’s
most disadvantaged citizens—people “low on the
economic ladder” —who make up most of the citizens
who do not already possess a driver’s license or other
acceptable photo identification, and at least some of
whom, the court of appeals notes, will be deterred
from voting by these burdens. As the court also
acknowledged, voters in this demographic group “are
more likely to vote for Democratic than Republican
candidates.” Hence, careful scrutiny of Indiana’s
asserted interest was needed to ensure that the photo
ID requirement is not simply the latest device in a
* Crawford v. Marion County Election Bd., 472 F.3d
949, 951 (7th Cir. 2007).
‘Id.
° Td.
long history of voting requirements aimed at
suppressing the vote of politically weak or voiceless
minorities and a pretext for obtaining a partisan
electoral benefit.
The district court and court of appeals failed to
provide anything approaching careful scrutiny—
whether denominated “strict” or “heightened”—to
Indiana's claimed need to require photo ID to prevent
impersonation fraud. Instead, they relied on
documents that in fact refute the existence of
impersonation fraud; unconfirmed hearsay reports
that have been discredited by formal investigations;
unsupported speculation; and supposed “perceptions”
and fear of voter fraud that are unsupported by any
evidence and that are easily manipulated. Under our
constitutional system the fundamental right to vote
cannot be taken away by unfounded “perceptions” of
a majority, whether measured by vote or by opinion
poll.
As Judge Wood observed in dissenting from the
court of appeals’ denial of en banc rehearing, “the
‘facts’ asserted by the state in support of its voter
fraud justification were taken as true without
examination to see if they reflected reality.”
This brief shows that in reality, polling-place
impersonation fraud is not a problem and that a
photo ID requirement is not needed to prevent it.
° Crawford v. Marion County Election Bd., 484 F.3d
436, 437 (7th Cir. 2007) (en banc) (Wood, J.,
dissenting from denial of en banc reconsideration).
ARGUMENT
INDIANA’S PHOTO ID REQUIREMENT
IS AN UNNECESSARY RESPONSE
TO THE EXTREMELY UNLIKELY AND
UNSUBSTANTIATED THREAT OF POLLING-
PLACE IMPERSONATION FRAUD
Burdick v. Takushi, 504 U.S. 428 (1992),
requires that, in assessing the constitutionality of
election regulations, courts must balance “the
character and magnitude” of the burdens on
plaintiffs’ voting rights “against the precise interests
put forward by the State” and “the extent to which
those interests make it necessary to burden the
plaintiffs’ rights.” 504 U.S. at 434 (quotation marks
and citation omitted) (emphasis added). Election
laws that impose severe burdens on voters are
subjected to strict scrutiny. See id. But even when a
law’s burdens are jess than severe, Burdick does not
contemplate application of the deferential “rational
basis” test applicable to social and economic
legislation.’ Rather, in such circumstances, Burdick
See, e.g., Reform Party of Allegheny County v.
Allegheny County Dep’t of Elections, 174 F.3d 305,
315 (3d Cir. 1999) (en banc) (election laws
imposing less than severe burdens are analyzed
under an “intermediate level of scrutiny”);
McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215,
1221 n.6 (4th Cir. 1995) (“a regulation which
imposes only moderate burdens could well fail the
|Burdick| balancing test when the interests that it
serves are minor, notwithstanding that the
requires the state to demonstrate an “important
regulatory interest” and that regulations addressing
this interest are “reasonable” and
“nondiscriminatory.” 504 U.S. at 434."
States, of course, have “a compelling interest in
preventing voter fraud.” Purcell v. Gonzalez, 127 S.
Ct. 5, 6-7 (2006). But the broad concept of voter fraud
is not the “precise interest” that Burdick requires be
evaluated here. A photo identification requirement
addresses only one type of alleged voter fraud: the
impersonation of a registered voter at the polls. It is
not a remedy for absentee ballot fraud, ballot
tampering, voting from two addresses, vote buying or
other voter fraud. This critical distinction was
repeatedly ignored by the courts below. Moreover,
because Indiana already had voter identification
methods in place before it enacted the photo ID
requirement in 2005, the issue is whether Indiana’s
interest in preventing polling-place impersonation
regulation is rational”); New Alliance Party v.
Hand, 933 F.2d 1568, 1576 (11th Cir. 1991)
(“Although . . . the burden imposed .. . is not
insurmountable, . . . plaintiffs are due to be
granted the relief requested because the interests
put forth by the defendant do not adequately
justify the restriction imposed.”).
For this reason, the district court’s use of the
deferential test of Williamson v. Lee Optical of
Oklahoma, 348 U.S. 483, 489 (1955), to evaluate
the Indiana voter ID law was error. See Indiana
Democratic Party v. Rokita, 458 F. Supp. 2d 775,
829 (S.D. Ind. 2006).
fraud justified replacing those earlier methods with a
more stringent identification requirement that
increases the burdens especially for eligible voters
who currently lack a photo ID and must obtain one to
vote.
The circumstances here warrant careful
examination of that interest. Absent evidence that
Indiana’s prior identification methods were in-
sufficient to prevent polling-place impersonation
fraud, and that it was therefore “necessary” to place
additional burdens on voters, the interest advanced
by Indiana is suspect. As the court of appeals
recognized, the burdens of the photo ID requirement
fall mainly on low-income citizens who are the most
likely to lack such IDs. See Crawford, 472 F.3d at
951. And as the court of appeals also acknowledged,
the photo ID requirement will discourage at least
some ef those people from voting. Jd. This disparate
impact on the voting rights of low-income citizens—a
group that is disproportionately made up of people of
color —increases the need for caution. See Vieth v.
See, e.g., Matt A. Barreto, et al., Voter ID
Requirements and the Disenfranchisements of
Latino, Black and Asian Voters, 2007 American
Political Science Ass’n Annual Conference 1
(Sept. 1, 2007) (on file with the author)
(“ammigrant and minority voters were consistently
less likely to have each form of identification”
required under voter ID laws); M.V. Hood &
Charles S. Bullock, Worth a Thousand Words? An
Analysis of Georgia’s Voter Identification Statute
19 (April 2007), http://electionlawblog.org/
Jubelirer, 541 U.S. 267, 311 (2004) (Kennedy, J.,
concurring) (when laws threaten to exclude minority
groups from the political process, courts should “err
on the side of caution”); United States v. Carolene
Products Co., 304 U.S. 144, 152 n4 (1938)
(heightened scrutiny is appropriate when laws
distinctly burden “discrete and insular” minority
groups that lack sufficient numbers or power to seek
redress through the political process).
Moreover, as the court of appeals
acknowledged, a significant majority of such low
income citizens vote Democratic. See Crawford, 472
F.3d at 951. In such circumstances, “applying
heightened scrutiny helps to ensure that .
archives/GA%20Voter%201ID%20%28Bullock%20%
26%20H00d%29.pdf (“Registered voters are
significantly less likely to possess a driver's
license if they are from minority groups, especially
blacks and Hispanics, and if they are older.”);
John Pawasarat, The Drivers License Status of the
Voting Age Population in Wisconsin, University of
Wisconsin—Miwaukee (2005), http://www.uwm.
edu/Dept/ETVbarriers/DriversLicense.pdf (noting
that “[lJess than half (47 percent) of Milwaukee
County African American adults and 43 percent of
Hispanic adults have a valid drivers license
compared to 85 percent of white adults”; that
“only 26 percent of African Americans and 34
percent of Hispanics [have] a valid license
compared to 71 percent of young white adults”;
and that “23 percent of persons aged 65 and over
do not have a... drivers license or a photo ID”).
lelectoral] limitations are truly justified and that the
State’s asserted interests are not merely a pretext for
exclusionary or anticompetitive restrictions.”
Clingman v. Beaver, 544 U.S. 581, 603 (2005)
(O’Connor, J., concurring in part and concurring in
the judgment).
Careful scrutiny of Indiana’s asserted interest
shows that polling-place impersonation fraud is not a
Neither Timmons v. Twin Cities New Party, 520
U.S. 351 (1997), nor Munro v. Socialist Workers
Party, 479 U.S. 189 (1986), supports a different
conclusion. Timmons held that “elaborate,
empirical evidence of the weightiness of a state’s
interest” was not needed to justify a ballot-access
restriction that “did not restrict the right of a
[party] or its members to vote for anyone they
like.” 520 U.S. at 363, 364. But here Indiana
provides no empirical justification for a law that
does directly restrict the right to vote of its most
disadvantaged citizens. Munro sustained a ballot-
access restriction, despite no evidence that it
addressed an_ existing problem, because
“(ljegislatures .. . should be permitted to respond
to potential deficiencies in the electoral process
with foresight, rather than reactively, provided
that the response is reasonable and does not
impinge on constitutionally protected rights.” 479
U.S. at 195-96 (emphasis added). Indiana’s law
does “impinge on constitutionally protected rights”
and, as we show, is not reasonable because less
burdensome laws have proven adequate to
prevent polling-place impersonation fraud.
10
problem and that Indiana’s photo ID requirement is
not needed to prevent it.
A. Polling-Place Impersonation Fraud Is
Highly Unlikely And Exceedingly Rare
The record contains no evidence of polling-
place impersonation fraud in Indiana: the State
conceded that it was unaware of any incidents of
attempted or successful impersonation fraud in
Indiana; that no one in Indiana history has been
indicted for impersonation fraud; and that no
evidence of impersonation fraud was presented to the
Indiana legislature during the debate over the photo
ID law. See Rokita, 458 F. Supp. 2d at 792-93.
Without citing a single fact, the court of
appeals nevertheless concluded that the “notorious
examples of Florida and Illinois,” as well as
Michigan, Missouri and Washington State, provide
evidence—“though not much”—that polling-place
voter impersonation is a problem and that it is no less
likely to occur in Indiana. Crawford, 472 F.3d at 954.
But the record, in fact, demonstrates that such fraud
is not a problem in the states listed by the court of
appeals or anywhere else in the United States.
1. None of the Examples Cited by the Court
of Appeals Indicates That Polling-Place
Impersonation Fraud Is a Genuine
Problem
FLORIDA: The court of appeals never
explains why Florida is a “notorious” example.
Perhaps this refers to Florida’s problems in the 2000
Presidential election. But those problems had
nothing to do with impersonation fraud: Florida was
“notorious,” among other things, for poor ballot
design, antiquated election machinery, and the
exclusion of eligible voters from the registration rolls.
There are only two references to Florida in the
record. The first is an article from the Miami Herald
discussing extensive problems with absentee ballot
fraud, vote buying, and voting by ineligible non-
residents in a 1997 Miami election. The only
suggestions of impersonation fraud in the article are
statements by voters confronted with allegations that
they voted in districts where they did not reside, and
who responded by saying someone must have voted in
their names. The article offers no suggestion that
these unconfirmed allegations of impersonation
involved polling-place impersonation, rather than
absentee ballot fraud or clerical errors. See Rokita,
458 F. Supp. 2d at 826 & n.78 (citing, inter alia,
State’s Ex. 10 (R. 83, Att. 2)). Tellingly, this 1997
election was overturned on the basis of absentee
ballot fraud, without any reference to polling-place
impersonation. In re the Protest of Election Returns
& Absentee Ballots in the Nov. 4, 1997 Election for the
City of Miami, 707 So. 2d 1170, 1172 (Fla. Dist. Ct.
App. 1998).
The second reference to Florida is a citation to
a study by Lorraine C. Minnite and David Callahan
entitled Securing the Vote: An Analysis of Election
Fraud (2003) (“2003 Minnite Study”). See Rokita, 458
F. Supp. 2d at 794 (citing State Ex. 6 (R. 82, Att. 3)).
This study contains no reference to polling-place
12
impersonation fraud in Florida; it discusses absentee
ballot fraud in Miami’s 1997 mayoral primary and
refers to Floridas massive disenfranchisement of
eligible, mostly African-American voters in the 2000
Presidential election whose names were erroneously
put on felony lists. See id. at 39-40.
ILLINOIS: The court of appeals never
explains why Illinois is “notorious.” The only item in
the record concerning Illinois is a 1982 newspaper
article describing allegations of fraud in the 1982
gubernatorial election. See Rokita, 458 F. Supp. 2d at
794 (citing State Ex. 13 (R. 83, Att. 5)). The article’s
main focus is absentee ballot fraud and ballot
tampering by election officials. While this article
from a quarter of a century ago refers to allegations
of voting in Chicago in the name of deceased
persons—so-called “ghost voting”—the article gives
no specific examples of any ghost votes and does not
indicate whether the unproven Allegations involved
in-person, rather than absentee voting, or are a
reflection of clerical errors. (See the discussion of
Michigan, immediately below.)
MICHIGAN: There is nothing in the record or
the district court’s opinion about any election fraud in
Michigan. There were reports of voting irregularities
in Michigan in 2004 (not reflected in the record), but
these reports indicate the unreliability of reports of
impersonation fraud. They include allegations of 132
votes allegedly cast by dead people. However, a
follow-up investigation to the initial report indicated
that all of these votes involved absentee ballots, 124
of the 132 incidents were incorrectly reported, and no
ballots were actually cast by a deceased voter after
13
the voter had died. See Kelly Chesney, Special Letter:
Claims That the “Dead” Voted Were Wrong, Detroit
News, Mar. 5, 2006. Moreover, it appears that in
Michigan, as elsewhere, claims of ghost voting are
often the result of clerical errors, as when election
clerks mistakenly record a vote under the wrong
name in post-election record keeping, or have a voter
sign the poll book entry of a voter with a similar
name. See Lisa Collins, In Michigan, Even Dead
Vote, Detroit News, Feb. 26, 2006 (“It’s impossible to
say whether [purported cases of ghost voting] are
names used by someone else to cast fraudulent votes
or whether they simply represent clerical errors... .
Among the most common mistakes occur when
election workers record a vote under a similar name,
or confuse voters with their parents or other
relatives.”); see also Van Smith, Election Nights of the
Living Dead, Baltimore City Paper, June 22, 2005
(discussing likely mistakes involving, e.g., voters with
different middle initials and a son confused with his
deceased father of the same name)."’
" That publicized cases of alleged impersonation
fraud often prove baseless upon investigation is
illustrated by the district court’s reliance on
reports of ghost voting in Georgia. See Rokita, 458
F. Supp. 2d at 493 (citing State Ex. 12 (R. 83, Att.
4)). The newspaper article relied on by the district
court recounted lurid tales of ballots cast from the
grave, including a vote by one Alan Jay Mandel.
Further investigation revealed no fire behind the
smoke, however: the Georgia Secretary of State
determined, in fact, that the votes attributed to
14
MISSOURI: The district court cited stories
concerning voter fraud in Missouri. See, e.g., Rokita,
458 F. Supp. 2d 794 (citing State Ex. 13 (R. 83, Att.
5)). None of the sources cited by the district court,
however, points to any evidence that the alleged
impersonation fraud in Missouri was accomplished
in-person rather than absentee. See John Fund,
Stealing Elections 64 (2004) (State Ex. 2 (R. 79, Att.
1)); 2003 Minnite Study at 43 (State Ex. 6 (R. 82, Att.
3)); Statement of Sen. Kit Bond (State Ex. 7 (R. 82,
Att. 4)). Moreover, these allegations were part of a
litany of claims of widespread voter fraud in the 2000
election in St. Louis that since have been shown to be
almost entirely specious. According to the 2003
Minnite Study, the Missouri Secretary of State’s
investigation and an investigation by the St. Louis
Post Dispatch disclosed such massive errors in official
records and so many wrongful accusations of fraud
that the “alleged voter fraud scandal in St. Louis
Mr. Mandel had actually been cast by one Alan
Jay Mandell, who was alive and well. As the
Secretary stated, “a subsequent check of the
records by Fulton County staff revealed that the
media account was erroneous.” Secretary of State
Cathy Cox, The 2000 Election: A Wake-Up Call
for Reform and Change 11 n.3 (Jan. 2001),
http://www.sos.state.ga.us/acrobat/elections/2000_
election_report.pdf; see also Greg Palast, The
Wrong Way to Fix the Vote, Wash. Post, June 10,
2001; Common Cause/Georgia v. Billups, 406 F.
Supp. 2d 1326, 1366 (N.D. Ga. 2005) (noting
absence of evidence of polling-place impersonation
fraud in Georgia).
15
looks more like a case of managerial ineptitude and
under-funding, and poor implementation of the
[National Voter Registration Act) [by] St. Louis and
Missouri election officials.” 2003 Minnite Study at
42-43. This conclusion was later dramatically
confirmed. After completion of an _ F.B.I.
investigation, the Department of Justice issued no
indictments for voter fraud of any kind. Instead,
“[t]he Justice Department threatened the Board [of
Elections] with a lawsuit for abusing the voting
rights of thousands of eligible St. Louis voters by
illegally purging their registration records in
violation of the National Voter Registration Act. It
was these illegal purges that created ... the
appearance of election irregularities.” Lorraine C.
Minnite, An Analysis of Voter Fraud in the U.S. 16
(2007), http://www.demos.org/pubs/analysis_voter_
fraud.pdf; see also Truth About Voter Fraud at 24-26.
Most recently, the Supreme Court of Missouri,
in striking down a photo ID law under the state
constitution, quoted with approval the findings of the
trial court that:
No evidence was presented that
voter impersonation fraud exists to
any substantial degree in Missouri.
In fact, the evidence that was
presented indicates that voter
impersonation fraud is not a
problem in Missouri.
Weinschenk v. State of Missouri, 203 S.W. 3d 201, 217
(Mo. 2006); see also United States v. Missouri, No. 05-
4391-CV-C-NKL, 2007 WL 1115204, at *10 (W.D. Mo.
16
Apr. 13, 2007) (noting that the United States had not
“shown that any voter fraud has occurred” in
Missouri in action alleging violations of National
Voter Registration Act).
The Missouri Supreme Court concluded that
the “[pJhoto ID requirement could only prevent a
particular type of fraud that does not occur in
Missouri.” Weinschenk, 203 S.W. 3d at 218.
WASHINGTON STATE: A comprehensive
investigation of alleged voter fraud was conducted in
Washington State after the bitterly contested 2004
gubernatorial election. See Rokita, 458 F. Supp. 2d at
793, 826 (citing State Ex. 3 (R. 79, Att. 2)); Borders v.
King County, No. 05-2-00027-3 (Wash. Super. Ct.
2005), reprinted in 4 Election L.J. 418 (2005). But
this investigation refutes—rather than supports—
claims that polling-place impersonation fraud is a
problem. Out of 2,812,675 ballots cast, the
investigation uncovered only 19 incidents that could
conceivably have involved impersonation fraud,
involving alleged voting in the name of the deceased.
Id. at 420, 423. Subsequent investigations indicated
that most of these ghost voting incidents involved
absentee ballots—not polling-place impersonation
fraud—and therefore would not have been prevented
by a photo ID requirement. See Phuong Cat Le &
Michelle Nicolosi, Dead Voted in Governor’s Race,
Seattle Post-Intelligencer, Jan. 7, 2005 (noting that
only one of eight investigated cases of ghost voting
involved a voter actually voting at the polls, while the
other seven cases involved absentee ballots). A
17
county official stated that the cases. being
investigated were “not indications of fraud.” Id.”
Furthermore, even if one or two ghost voting
incidents did involve polling-place impersonation
fraud, such incidents can be prevented by each State
updating its voter rolls on a regular basis as required
by federal law.’ Another article cited by the district
court indicates that election officials in Washington
had not yet regularly updated the voter rolls by 2004.
See Rokita, 458 F. Supp. 2d at 826 n.78 (citing State
Ex. 15 (R. 83, Att. 7)).
2. The Additional Evidence Cited by the
District Court and Other Studies Show
That Polling-Place Impersonation Fraud
Is Not A Genuine Problem
The additional evidence relied on by the
district court and other studies also show that
polling-place impersonation fraud is not a problem
anywhere in the nation.
MINNITE STUDY: The district court’s
reliance on the 2003 Minnite Study is puzzling. See
12
As noted, claims of in-person impersonation fraud
are frequently shown to merely reflect clerical
errors and poor record keeping. See supra at 12.
Under the Help America Vote Act of 2002
(“HAVA”), states are required to implement
centralized registration lists, update them
regularly, and remove ineligible registrants. See
42 U.S.C. § 15483(a)(4).
18
Rokita, 458 F. Supp. 2d at 793-94 (citing State Ex. 6
(R. 82, Att. 3) (2003 Minnite Study)). That study is
one of the most comprehensive studies of voter fraud
allegations to date,’ but it compels a conclusion
exactly opposite to that reached by the district court.
The study found that voter fraud of any kind is “very
rare,” is not more than a “minor problem” and “rarely
affects election outcomes.” 2003 Minnite Study at 4,
17. Notably absent from the study is any evidence of
polling-place impersonation fraud. According to the
study, even where election fraud allegations have
received significant attention in the news media, the
allegations almost invariably proved baseless. Id. at
17, 40-43.
To the limited extent fraud has been detected,
the study concludes, it generally takes the form of
organized fraud such as vote buying, use of
fraudulent absentee or mail-in ballots, ballot box
stuffing, or wrongful purging of registration rolls to
exclude eligible voters. Jd. at 14-15. Instances of
these types of fraud far outweigh incidents of
individual fraud. Jd. Most importantly, the study
concludes that the wrongful disenfranchisement of
voters is a “far bigger problem” than voter fraud. Id.
at 15.
14
In the study, Minnite and Callahan reviewed
news and legal databases and _ interviewed
attorneys general and secretaries of state in 12
states, representing about half of the national
electorate, about incidences of election fraud from
1992 to 2002.
19
DOJ REPORT: £The district court also
mistakenly relied on a Department of Justice (“DOJ”)
report on voting fraud. See Rokita, 458 F. Supp. 2d at
793 (citing State Ex. 2 (R. 79, Att. 1)). The report
does not contain a single reference to impersonation
fraud. An updated version of that report, which
describes DOJ’s investigation of election fraud since
2002, confirms that impersonation fraud is not a
threat to the integrity of elections. See Press Release,
DOJ, Fact Sheet: Department of Justice Ballot Access
and Voting Integrity Initiative (July 26, 2006),
available at http://www.usdoj.gov/opa/pr/2006/July/
06_crt_468.html (“DOJ Report”). The DOJ Report
describes 86 convictions ffor _ election-related
misconduct over a nearly five-year period, but not a
single one of these convictions involved
impersonation fraud. See id.; see also Eric Lipton &
Ian Urbina, In 5-Year Effort, Scant Evidence of Voter
Fraud, N.Y. Times, Apr. 12, 2007. The report
describes incidents of vote buying, improper use of
personal information by local officials, various
campaign finance convictions, and harassment to
keep voters from the polls. None of these crimes
could be prevented by requiring voters to show a
photo ID.
WISCONSIN: The district court cited a year-
long joint federal and state investigation into an
alleged scheme to alter the result of the 2004 election
See also DOJ, Election Fraud Prosecutions &
Convictions, Oct. 2002 — Sept. 2005, available at
http://www.truthaboutfraud.org/pdf/doj%20electio
n%20fraud%20prosecutions. pdf.
20
in Wisconsin, but this investigation also disclosed no
evidence of impersonation fraud. See Rokita, 458 F.
Supp. 2d at 793-94 (citing State Ex. 4 (R. 79, Att. 3)
(Preliminary Findings of Joint Task Force
Investigating Possible Election Fraud (May 10, 2005),
available at http://www.wispolitics.com/1006/election
fraud.pdf)). Indeed, the investigation showed very
little evidence of any other type of voter fraud,
although it did turn up severe administrative and
record keeping problems with the Milwaukee
elections board. See id. at 1; see also Greg Borowski,
A New Push To Repair Elections, Milwaukee Journal-
Sentinel, May 15, 2005 (administrative problems and
“jumbled records made confirmation [of voter fraud
allegations] a near impossibility”). The few incidents
that were substantiated involved registration fraud,
double voting and voting by ineligible persons with
felony convictions, not impersonation fraud at the
polis. See Steve Schultze, No Vote Fraud Plot Found,
Milwaukee Journal-Sentinel, Dec. 5, 2005.
SABATO AND FUND: The district court
cited two books discussing allegations of voter fraud
generally, see Rokita, 458 F. Supp. 2d at 793-94
(citing Sabato & Simpson, Dirty Little Secrets 292
(1996) (“Sabato”); Fund, Stealing Elections 64 (2004)
(“Fund”)), but these books contain few allegations of
voting irregularities that could even conceivably have
been remedied by a photo ID requirement. Sabato,
for example, describes thousands of incidents of
possible absentee ballot fraud and numerous
problems plaguing California’s registration rolls.
Sabato at 291-92. But it cites only a single hearsay
allegation of attempted polling-place impersonation
fraud—and that was foiled without a photo ID
requirement. Id. at 292.
Likewise, Fund retails numerous reports of
voting by ineligible persons with felony convictions
and double voting—problems for which requiring a
photo ID is no solution. Fund at 64. And, as noted,
see supra at 13, though Fund parrots allegations of
alleged voting in the name of deceased persons in
Missouri, he offers no evidence that any of these
involved in-person, rather than absentee, voting or
that they were not the result of clerical errors. Fund
at 64. Moreover, allegations of impersonation fraud
in Missouri have been thoroughly discredited. See
supra at 13.
CARTER-BAKER COMMISSION: The
district court also relied on the report of the Carter-
Baker Commission on Federal Election Reform" for
the proposition that impersonation fraud occurs, and
that photo ID requirements are necessary to prevent
it. See Rokita, 458 F. Supp. 2d at 794 (citing State
Ex. 1 (R. 82, Att. 1) (Commission on Federal Election
16
A review characterizes Fund’s book as filled with
“distortions and half truths” and provides a point-
by-point refutation of many of Fund’s claims. See
Media Matters, John Fund’s Book on Voter Fraud
Is a Fraud (Oct. 31, 2004), http://mediamatters.
org/items/printable/200411010001.
“The Carter-Baker Commission was not a
commission of the federal government; it was an
independent project organized by American
University.
79
Reform, Building Confidence in U.S. Elections (Sept.
2005) (“Carter-Baker Report”))). The Commission
cites no credible evidence of impersonation fraud,
instead simply referring to the since-discredited
reports of such fraud in Milwaukee and Washington
State. Compare Carter-Baker Report at 2-4, 18 with
supra at 14-15, 17-18. Moreover, as one of the
dissenters notes, the Commission “did not call as
witnesses many of the most established experts on
the issue [of voter ID requirements]. A commission’s
reliance on anecdotes and political sound bites—
rather than empirical data, testimony by top experts,
and rigorous analysis—undermines its credibility.”
Spencer Overton, Establishing Procedures for
Credible Advisory Commissions (2005),
http://www.carterbakerdissent.com/procedure.php. "
Finally, reliance on the Carter-Baker Report
for support of Indiana’s photo ID law is misplaced:
the Commission’s co-chairs, President Carter and
Is
Deficiencies are found in every other article and
report cited by the district court. See Rokita, 458
F. Supp. 2d at 793-94 (citing State Exs. 2-18 (R.
79; R. 82, R. 83)); id. at 826 (citing State Exs. 3-
18). Many are newspaper reports of “double
voting” by voters at multiple addresses. See, e.g.,
State’s Exs. 5, 8 (R. #2 Atts. 2,5). Other exhibits
detail voting by persons with felony convictions,
some of whom may have been ineligible. See, e.g.,
State’s Exs. 3, 4, 7 & 9 (R. 79, Att. 3; R. 82 Att. 4;
R. 83, Att. 1). These problems can only be
prevented by an accurate registration list, not by a
photo ID requirement.
23
Secretary Baker, condemned Georgia’s initial photo
ID law as “discriminatory” because “it was costly or
difficult for poor Georgians.” Jimmy Carter and
James A. Baker III, Voting Reform Is in the Cards,
N.Y. Times, Sept. 23, 2005. While they proposed a
nation-wide, uniform photo ID, known as the REAL
ID, as a requirement for in-person voting, they did so
in the hope of remedying the problems created by
allowing individual states—like Georgia—to impose
ID requirements. They hoped that the discriminatory
burdens of a photo ID requirement could be
eliminated if states were obliged “to seek out citizens
to both register voters and provide them with free
ID’s that meet federal standards,” through a host of
aifirmative and energetic activities. Jd. President
Carter’s and Secretary Baker’s vision ignores the
burdens on low-income voters even if the ID itself is
free.” In any event, the Indiana law—which is even
more stringent than Georgia’s—is the antithesis of
their vision.”
COHHIO STUDY: A study of alleged fraud in
Ohio which is not in the record further confirms that
impersonation fraud is not a problem. See Coalition
of Homelessness and Housing in Ohio & League of
19
See Indiana Democratic Party Petitioners’ Br. at
13-16.
For a full critique of the Carter-Baker Report,
including its endorsement of REAL IDs, see
generally Brennan Center & Spencer Overton,
Response to the Report of the 2005 Commission on
Federal Election Reform (Sept. 19, 2005).
20
24
Women Voters Coalition, Let the People Vote 1 (2005),
http://www.cohhio.org/alerts/Election%20Reform%20
Report.pdf. Researchers interviewed the Director or
Deputy Director of each of the state’s 88 county
Boards of Elections and concluded that voter fraud as
a whole was an “exceedingly rare” occurrence, as
evidenced by the fact that, out of a total of 9,078,728
votes cast, there were only four reported instances of
ineligible persons voting or attempting to vote in
2002 and 2004, confined to three of the state’s 88
counties. Jd. at 2. The report does not indicate why
the four persons were ineligible, or whether polling-
place impersonation fraud was involved.
* * *
In sum, the national evidence—including the
very evidence relied on by the courts below—suggests
that the type of voting fraud that may be remedied by
a photo ID requirement is virtually nonexistent: the
“problem” of voter impersonation is not a real
problem at all.
The court of appeals nevertheless speculated
that the absence of evidence of impersonation fraud
might be explained by the “endemic
underenforcement of minor criminal! laws” and the
“difficulty of apprehending a voter impersonator.”
Crawford, 472 F.3d at 953. But guesswork is
misplaced where fundamental rights are at stake:
courts should decide voting-rights cases on the basis
of “facts rather than speculation.” Purcell, 127 S. Ct.
at 8 (2006) (Stevens, J., concurring). Further, the
more reasonable explanation for the absence of
evidence of polling-place impersonation fraud is that,
because such fraud is extremely risky, exposes the
perpetrator to severe penalties,” and has very little
payoff, it rarely occurs.”
21
2
oe
The court of appeals’ statement regarding the
“underenforcement of minor criminal laws” is
contradicted by the fact that, since 2002, the
Department of Justice has given priority to, and
devoted vast resources to, the investigation and
prosecution of voter fraud. See DOJ Report
(noting establishment in 2002 of initiative
requiring “expanded efforts to address election
crimes” and placing “a high priority on the
investigation and prosecution of election crimes”).
In spite of these efforts, DOJ has found not one
instance of polling-place impersonation.
Voter impersonation in a federal election can
result in five years’ maximum imprisonment and
$10,000 maximum fines. See 42 U.S.C. § 1973i(c).
Under Indiana law, impersonation fraud is
punishable as a Class D felony by three years
maximum imprisonment, and $10,000 maximum
fines. See Ind. Code §§ 3-14-2-12, 35-50-2-7(a).
Notably, the court of appeals posited that some
voters are likely to be discouraged from voting
rather than incur the time and trouble to obtain a
photo ID, because a single vote supposedly has a
low “instrumental value”—i.e., voters believe their
individual vote will not determine the election’s
outcome. See Crawford, 472 F.3d at 951. But if
26
The court of appeals also opined that Indiana’s
inflated voter registration rolls created an “acute
danger” of impersonation fray.d. Crawford, 472 F.3d
at 953. But central to Congress’s enactment of HAVA
was the conviction that states’ maintenance of
accurate, updated registration lists is the best
remedy for the dangers created by inflated, outdated
registration lists. Indiana citizens should not be
burdened with photo ID requirements to remedy a
speculative threat created by Indiana’s failure to
comply with federal law. The court of appeals
dismissed Congress’s remedy as ineffectual, without
any basis in fact and contrary to the views of
Congress and election experts. See, e.g., 148 Cong.
Rec. S10491 (2002) (statement of Sen. Bond) (noting
that HAVA “requires states to set up a computerized,
statewide voter registration system to maintain the
names of all registered, eligible voters [and eliminate
the risk that rolls will contain] the names of people
who have left the jurisdiction, who are not eligible to
vote because of their status as a felon, who are
deceased or who are not eligible to vote in that
jurisdiction for any number of reasons”).
that is true, impersonation fraud is likely to be
discouraged by the severe penalties for such
conduct, because there would be little reason to
incur such great risks for a payoff of such low
“instrumental! value.”
27
B. Alleged Perceptions Or Fears of Voter
Fraud Do Not Justify Indiana’s Photo ID
Requirement
The district court advanced an alternative
justification for the photo ID requirement that is
equally unpersuasive: Indiana’s interest in
responding to public perceptions or fears of voter
fraud. In upholding the photo ID requirement, the
district court credited “several polls indicating voter
concern about election fraud and support for photo
identification requirements at the polls.” Rokita, 458
F. Supp. 2d at 794. The court’s reliance on these
public opinion polls was wrong for several reasons.
First, none of the cited polls reflects any public
concern with polling-place impersonation fraud. See
Rokita, 458 F. Supp. 2d at 794 (citing State Exs. 22 —
24 (R. 84, Atts. 2-4)). A Gallup poll relied on by the
district court showed that two-thirds of Americans
had little confidence in the fairness of the 2000
Presidential election—and that 68% cof African
Americans felt “cheated” after that election. See
Rokita, 458 F. Supp. 2d at 794 (citing State Ex. 23 (R.
84, Att. 3) (Wendy W. Simmons, Black Americans
Feel Cheated by Election 2000, Gallup News Service,
Dec. 20, 2000)). Much of this sentiment reflected
concerns that valid votes would not be counted and
was entirely unconnected to any threat of
impersonation fraud. See Simmons at 6. The only
poll relied on by the district court which manifested
public support for photo ID laws does not identify
which of those surveyed were voters who already had
drivers licenses and other acceptable photo IDs and
for whom a photo ID requirement imposes virtually
28
no burden, and which, if any, were disadvantaged
voters who do not have photo IDs and who must incur
the burdens of obtaining one to vote. See Rokita, 458
F. Supp. 2d at 794 (citing State Ex. 22 (R. 84, Att. 2)).
The majority of voters already have acceptable photo
IDs. It is therefore not surprising that many of them
would unthinkingly support such a requirement
without considering the effects it might have on
voting by disadvantaged citizens who lack photo [Ds.
Second, “perceptions” and fears of voter fraud
are subject to manipulation and hence unreliable.*
24
The perception of voter fraud is very different
than the appearance of corruption that is the basis
for upholding campaign finance restrictions. As
this Court recognized, the ability to regulate
activity protected by the First Amendment must
be supported by evidence justifying the precise
fear, which must in turn justify the regulation. In
Buckley v. Valeo, 424 U.S. 1 (1976), and then later
in McConnell v. Federal Election Commission, 540
U.S. 93 (2003), the Court repeatedly cited the
extensive factual record of corruption that
Congress had compiled to justify the regulation of
particular acts of campaign finance, and even then
it sufficed only where it imposed merely a
“marginal restriction” on protected activity. See
Buckley, 424 U.S. at 20-21; McConnell, 540. U.S. at
124-25, 129-31, 145-50. In contrast, there is no
factual record of any impersonation fraud
supporting an appearance of such fraud that
would justify Indiana’s regulation. Moreover,
with respect to campaign finance regulation, the
“appearance of corruption is inherent in a system
29
As the Missouri Supreme Court held in striking down
Missouri's photo [ID law, even where such perceptions
are real, if it upheld the law based on “the mere
perception of a problem in this instance, then the
tactic of shaping public misperception could be used
as a mechanism for further burdening the right to
vote or other fundamental rights.” Weinschenk, 203
S.W. 3d at 218.
This Court has stated that “[clonfidence in the
integrity of our electoral process is essential to the
functioning of our participatory democracy” and that
“voters who fear their legitimate votes will be
outweighed by fraudulent ones’ will feel
disenfranchised.” Purcell, 127 S. Ct. at 6. But
nothing could be more damaging to confidence in the
integrity of our electoral process than if such fears
were generated by baseless claims of voter fraud that
are being exploited to gain support jor unnecessarily
stringent identification requirements that suppress
voting by low income and minority citizens and are
seen as a “not-too-thinly-veiled attempt to discourage
election day turnout by certain folks believed to skew
Democratic.” Crawford, 472 F.3d at 954 (Evans, J.
dissenting).”’
permitting unlimited financial contributions.”
Buckley, 424 U.S. at 27. But there is no inherent
appearance of impersonation fraud in voting by
eligible voters who lack photo IDs but have other
identification acceptable in virtually every state.
For concerns about the manipulation of claims
about voter fraud, see, e.g., Tova Wang, A Rigged
30
Finally, under our Constitution, the
fundamental rights of the most vulnerable members
of our society may not be stripped away by majority
vote or opinion polls. See, e.g., Lucas v. Forty-Fourth
Gen. Assembly of Colo., 377 U.S. 713, 736-37 (1964)
(“[F ]undamental rights may not be submitted to vote;
they depend on the outcome of no elections. A
citizen’s constitutional rights can hardly be infringed
simply because a majority of the people choose that it
be.”) (quotation marks omitted); id. at 737 n.30 (“It is
too clear for argument that constitutional law is not a
matter of majority vote.”) (quotation marks and
citation omitted).
C. APhoto ID Requirement Is Not Needed
To Prevent Possible Impersonation Fraud
Forty-eight states and Congress have adopted
laws for identifying voters that provide less onerous
alternatives to a photo ID, as did Indiana’s laws until
2005. The absence of evidence of impersonation
fraud shows that these laws, together with criminal
laws severely penalizing such fraud, are adequate to
prevent impersonation fraud. Hence, Indiana has
neither a compelling nor an important interest
justifying the added burden that acquiring the
requisite photo ID imposes on the vulnerable voters
most likely to lack one.
Report on U.S. Voting?, Wash. Post, Aug. 30, 2007;
see also lan Urbina, Panel Said To Alter Finding
on Voter Fraud, N.Y. Times, Apr. 11, 2007.
31
1. Indiana’s Policies for Identifying Voters
Prior to the Adoption of the Photo ID
Requirement Provided an Adequate
Alternative to Photo ID
Prior to 2002, most states, including Indiana,
did not require any documentary proof of identity.
See, e.g., Electionline.org, Election Reform: What's
Changed, What Hasn’t and Why 2000-2006 13 (2006),
available at http://www.electionline.org/Portals/1/Pub
lications/2006.annual.report.Final.pdf (“Electionline
Study”). Under Indiana’s voting procedures, any
questions about identity were addressed by
comparing the voter’s signature at the polls to a
photocopy of her signature in the registration records.
See Ind. Code § 3-11-8-25 (2002). If her signature
were challenged, the voter could affirm by affidavit
that she was qualified to vote in that precinct and
then cast a regular ballot. Jd. § 3-11-8-22.
Indiana revised its election code in 2003
(effective in 2004), see Ind. P. L. 209-2003, § 134, in
response to the federal Help America Vote Act of
2002 (“HAVA”), see generally 42 U.S.C. § 15301, et
seq. Congress passed HAVA in response to the deeply
flawed 2000 election and the widespread problems
that occurred when administrative errors resulted in
eligible voters being left off the registration rolls—
and denied the right to vote. Among other provisions,
HAVA requires that first-time voters who register by
mail, and whose registration information cannot
otherwise be verified against other government
databases, must confirm their identities through a
variety of widely available documents: a current and
valid photo ID, a current utility bill, bank statement,
government check or paycheck, or another
government document that shows the name and
address of the voter. See id. § 15483(b)(2), b(3)(B).
In 2003, Indiana adopted HAVA’s
requirements for first-time voters who register by
mail, who were then required to provide some form of
documentary identification—including a range of
non-photo ID showing the name and address of the
voter. See Ind. Code § 3-11-8-25 (2004). Despite the
lack of any evidence of actual or threatened
impersonation fraud rendering these ID provisions
inadequate to prevent such fraud, just two years
later, in 2005, the Indiana legislature mandated that
all in-person voters (except nursing home residents
voting in their nursing homes) display a photo ID
issued by the state or federal government and
bearing an expiration date. The absence of polling-
place impersonation fraud shows that the imposition
of a new, stringent photo ID requirement is not
needed to prevent polling-place impersonation fraud.
It is also pertinent that Indiana’s law is at
odds with less burdensome alternatives adopted by
the federal government in HAVA, and by forty-eight
of Indiana’s sister states and that these states, like
Indiana, have not had an impersonation fraud
problem.
2. Less Onerous Methods of Voter
Identification in Other States Provide
Adequate Alternatives to Photo ID
In 48 states and the District of Columbia, a
photo ID is not the exclusive requirement for casting
33
a ballot that will count. These states provide
alternative means for confirming voters’ identities,
and as the absence of any meaningful evidence of
impersonation fraud indicates, these alternatives are
sufficient to protect the integrity of elections.
As noted, prior to 2002, most states did not
require voters to show any documentary
identification before voting in person. See supra at
27. And although all states have now implemented
HAVA’s identification requirements and _ request
some form of documentary identification—including
non-photo [D—from first-time voters who registered
by mail and have not been “matched” against
government databases, see Electionline Study at 17;
supra at 27-28, besides Indiana, only one other
state—Georgia—currently requires all voters to
produce photo identification before their ballots will
be counted. See generally National Conference of
State Legislatures, State Requirements for Voter
Identification (Feb. 1, 2007), http://www.ncsl.org/pro
grams/legismgt/elect/taskfe/voteridreg.htm (“NCSL
Study”).
Twenty-three states and the District of
Columbia require the documentation enumerated in
HAVA only from first-time voters registering by mail,
see NCSL Study; see also Electionline Study at 17,°
26
These states utilize a variety of mechanisms to
verify the identities of other voters. See generally
Electionline.org, Voter ID Laws (Oct. 17, 2006),
available at http://www.electionline.org/Default.
aspx?tabid=364 (“Voter ID Laws”); NCSL Study.
34
while Kansas and Pennsylvania require the ID
specified in HAVA from all first-time voters.
The remaining twenty-five states require all
voters—whether first-time or “repeat” voters—to
produce some documentary ID. Eighteen of these
states’ request that all voters produce some form of
documentary identification, but accept both photo
and non-photo ID. See generally Electionline Study
at 17; Voter ID Laws.” Only seven states—Florida,
27
28
Some states permit these voters to verify identity
by signing a registration card or book for
comparison with a signature on a master list. See,
e.g., Nev. Rev. Stat. § 293.277; N.J. Stat. Ann.
§ 19:3la-8. Other states confirm voters’ identities
by having the voter orally recite or affirm
identifying information. See, e.g., Mass. Gen.
Laws ch. 54, § 76; Neb. Rev. Stat. § 32-914; Utah
Code Ann. § 20A-3-104.
Alabama, Alaska, Arizona, Arkansas, Colorado,
Connecticut, Delaware, Kentucky, Missouri,
Montana, New Mexico, North Dakota, Ohio, South
Carolina, Tennessee, Texas, Virginia, and
Washington.
The list of acceptable forms of ID varies, but
almost every state’s list includes options for voters
that are either contained in the text of HAVA, or
closely related to its model. See generally Voter
ID Laws. Various states have augmented HAVA’s
list of acceptable IDs with additional, widely
available alternative forms of documentary proof.
See id. Moreover, in many states, voters lacking
documentary identification can prove identity
35
Georgia, Hawaii, Indiana, Louisiana, Michigan, and
South Dakota—require voters to display a photo ID
when they vote in person, but five of these seven
states provide meaningful alternatives that allow
voters lacking photo IDs to cast votes that are
counted. Only Indiana and Georgia fail to provide a
non-photo ID alternative to voters lacking a photo
ID.”
The five remaining states with laws that
request photo IDs of all voters provide voters who
29
through non-documentary means, such as reciting
unique identifying information or signing an
affidavit. See generally Voter ID Laws; NCSL
Study; see also, e.g., N.M. Stat. §§ 1-12-7.1, 1-1-24;
Conn. Gen. Stat. § 9-261(a).
After initially enjoining Georgia’s original photo
ID law, see Common Cause/Georgia v. Billups,
406 F. Supp. 2d 1326 (N.D. Ga. 2005), a federal
district court subsequently rejected the litigants’
standing to challenge an amended version of the
law, see Common Cause/Georgia v. Billups, 504
F. Supp. 2d 1333 (N.D. Ga.), appeal filed No. 07-
14664C (11th Cir. 2007). The court nevertheless
opined in dicta that the amended law was
onstitutional, noting, inter alia, that Georgia had
amended the law in an attempt to minimize the
burdens on voters; did not require voters to
provide birth certificates to obtain free IDs; and
conducted an extensive outreach and education
campaign targeting voters likely to lack photo
IDs—measures absent in Indiana. See Common
Cause /Georgia, 504 F. Supp. 2d at 1378-80.
lack photo ID with various less burdensome
alternatives. A Michigan voter lacking a photo ID
may sign “an affidavit to that effect before an election
inspector and [will] be allowed to vote” a regular
ballot. Mich. Comp. Laws § 168.523. South Dakota
voters without a photo ID may also vote after
completing an affidavit. See S.D. Codified Laws § 12-
18-6.2. And in Louisiana, a voter lacking photo ID
may vote after signing an affidavit so long as she
provides either a current voter registration certificate
or other information requested by the election
commissioners of her precinct. See La. Rev. Stat.
Ann. § 18:562(A)(2).
Hawaii's voter identification statute provides
that “[e]very person shall provide identification if so
requested,” Haw. Rev. Stat. § 11-136, and the website
of Hawaii’s Office of Elections makes clear that all
voters “will be asked to. . . verify . . . identity with a
picture ID.” Hawaii Office of Elections, How to Vote
at the Polling Place (Nov. 9, 2007), http://www. hawaii
.gov/elections/voters/howtovote.htm. Hawaii's official
manual for polling-place procedures, however, directs
poll workers to accept various forms of non-photo ID,
and makes clear that if a voter is unable to produce
documentary ID, she is simply asked to recite her
date of birth and home address, and if the voter's
responses match the information contained in the poll
book, she may vote a regular ballot. See Hawaii
Office of Elections, Chairperson and Voter Assistance
Official’s Manual 58-59 (2006); NCSL Study.
Finally, in Florida, voters lacking photo ID
may sign an affidavit, and Florida will count the
ballot if the signature on the affidavit matches that
37
on the registration form: the voter is not required to
make an additional trip to an election office or to
return to the polls with ID, as in Indiana. See Fla.
Stat. §§ 101.043(2), 101.048(2)(b).
* * *
There is no evidence that polling-place
impersonation fraud represents a genuine problem
anywhere in the United States, and less onerous
alternatives have proven more than adequate to
prevent it. The additional hurdle to voter
participation erected by Indiana’s photo ID
requirement cannot be justified as a reasonable,
nondiscriminatory remedy to prevent impersonation
fraud. Indiana’s imposition of this additional obstacle
to electoral participation that primarily burdens
disadvantaged voters is an unnecessary and
unreasonable means of preventing impersonation
fraud. It, therefore, violates the First and Fourteenth
Amendments.
38
CONCLUSION
For the foregoing reasons, the judgment of the
court of appeals should be reversed.
November 13, 2007
Respectfully Submitted,
WENDY R. WEISER SIDNEY S. ROSDEITCHER
JUSTIN LEVITT COUNSEL OF RECORD
RENEE PARADIS J. ADAM SKAGGS
BRENNAN CENTER FOR PAUL, WEISS, RIFKIND,
JUSTICE AT NYU WHARTON & GARRISON LLP
SCHOOL OF LAW 1285 AVENUE OF THE AMERICAS
161 AVENUE OF THE AMERICAS NEW YORK, NY 10019
NEW YORK, NY 10013 (212) 373-3000
(212) 998-6730
Counsel for Amici Curiae
39
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