The Most Important Election Case Since Bush v. Gore?
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New voter ID card-related barriers stopped legitimate voters earlier this month in Indiana, where the Supreme Court is reviewing the constitutionality of its voter ID law.
Ray Wardell, a 78-year-old Korean War veteran, could not get a new state voter ID card after his wallet was stolen because Indiana's Bureau of Motor Vehicles (BMV) would not accept his Medicare card -- even though it had accepted that photo ID instead of his birth certificate a year before. Wardell ended up voting with a provisional ballot, but it will not be counted unless the disabled veteran appears before county election officials with further identification.
Mike Westervelt, a Purdue University student and city editor of the campus newspaper, was told by BMV employees they would not accept his New Jersey driver's license as one of three necessary documents to get an Indiana voter ID card -- even though the secretary of state's website listed out-of-state licenses as acceptable. Westervelt said -- and voting rights lawyers affirmed -- that the section of Indiana law cited by BMV to deny a voter ID card contained no prohibitions on out-of-state licenses. He, too, voted provisionally and is trying to resolve issues with his county election board before his vote is counted.
And Kim Tilman, a stay-at-home mother of seven whose husband is a janitor, who does not have her Michigan birth certificate and has run into delays trying to get a copy, said she cannot afford all the involved costs -- which range between $26 and $50 -- to obtain an Indiana voter ID card, despite her hope to vote in the presidential contests.
"These folks are not used to dealing with this," said Karen Celestino Horseman, attorney for the League of Women Voters of Indiana. "People will say this is not the same as a poll tax, or a literacy test. But to go and vote, you need to have resources to find your way through the system."
Since 2000, numerous states have passed or tightened voter ID laws to prevent what Republicans say is widespread voter fraud, or people voting more than once. Critics say there has been little actual voter fraud, few federal prosecutions and convictions, and that the laws' purpose is an attempt by Republicans to shape the electorate by targeting likely Democratic voters.
Indiana's law, which went into effect in 2006, is one of the toughest in the nation. It is being reviewed by the Supreme Court to determine if it poses unconstitutional barriers to voting. According to numerous amicus briefs filed with the Supreme Court, the barriers experienced by Wardell, Westervelt, Tillman and others during the state's recent 2007 local elections are modern descendants of now-illegal Jim Crow election laws.
"The burden for a poor person, an old person, or an old person who is poor, could be quite substantial," the Campaign Legal Center, a Washington public-interest law firm, and Harvard University Law School's Charles Hamilton Houston Institute for Race and Justice wrote. "Indiana's photo ID law falls within this unfortunate American tradition of disenfranchising laws passed under the guise of electoral reform."
The brief notes that poll taxes in Texas before World War I "affected not only the poor in general but also the disproportionately poor black and Latino populations. In 1913, nine years after the $1.75 tax went into effect ($1.50 was imposed by the state, and counties had the option of imposing an additional 25 cents), it had the buying power of $36.36 in today's dollars."
Today, the total cost cited by Tillman of obtaining her birth certificate and the other documentation needed to get a "free" Indiana state voter ID card is on par with Texas' 1913 poll tax. The Constitution's 24th Amendment says the right of citizens to vote "shall not be denied or abridged" for "failure to pay any poll tax or other tax."
The voting barriers experienced by Westervelt and Wardell are modern versions of the literacy tests used by Democrats in pre-Civil Rights Era Southern states to prevent blacks from voting, the Indiana League of Women Voter's Horseman said.
"Voting should be the simplest of the fundamental rights that we exercise," she said, saying the hurdles faced by Wardell, Westervelt -- and others cited in the League's brief, including examples from Indiana's 2006 elections -- were a bureaucratic literacy test. "You are talking about burdening someone's constitutional rights."
Other obstacles faced by Indiana voters included elderly people who did not have birth certificates, women whose married names did not match names on their birth certificates, and "hundreds of Amish and Mennonites ... faced with a choice between exercising their religious freedom and their right to vote" because they believe photographs are "graven images," the League's legal brief said.
An estimated 43,000 eligible Indiana voters neither have an Indiana driver's license nor a state photo ID, the Campaign Legal Center and the Charles Hamilton Houston Institute said in its brief.
Horseman said many middle-class people "do not understand" that the poor, the elderly, college students and some religious people do not have the photo documentation to vote. "They say you can't get around in this world without a photo ID," she said. "Take Mary Elbe. She's lived and worked on a farm for 92 years. Everyone in her county knows her, but now she can't vote. It's ridiculous."
Indiana officials responsible for overseeing its elections are in several state government departments.
The secretary of state's office said the Bureau of Motor Vehicles is responsible for creating its own "administrative rules" for implementing the voter ID law passed by the state legislature. The secretary of state's office did not comment on the contradiction between the list of acceptable documents posted on its website that can be used to get a "free" state voter ID card, which included out-of-state driver's licenses and the BMV policy apparently rejecting out-of-state licenses. Indiana BMV Communications Director Dennis Rosebrough declined to comment, saying, "in so far as it is part of a lawsuit, I am constrained in what I can comment on."
However, in legal briefs filed with the Supreme Court, Indiana Secretary of State Todd Rokita, a Republican, said claims by litigants like the state's League of Women Voters, Indiana Democratic Party, Campaign Legal Center and others that state residents were losing their voting rights under the new voter ID law were baseless.
"No plaintiff could identify a single, actual voter who could not or would not vote because of the Voter ID law," Rokita's Aug. 6, 2007, brief said, arguing that state governments -- not the Supreme Court -- were best-suited to regulate their elections. In a followup brief on Sept. 17, Rokita cited voter ID court rulings from other states where "plaintiffs simply have failed to prove that the character and magnitude of the asserted injury to the right to vote caused by the Voter ID law is significant."
However, other Supreme Court litigants opposing the voter ID law -- notably the Brennan Center for Justice at New York University Law School and the University of Washington Institute for the Study of Ethnicity, Race and Sexuality -- have since conducted extensive polling among low-income and minority Indiana residents and found these populations often lack access to the forms of ID required by Indiana to vote.
Their research, based on telephone interviews with 1,000 registered voters and 500 nonregistered adults conducted in October 2007, found:
- 21.8 percent of black Indiana voters do not have access to a valid photo ID, compared to 15.8 percent of white Indiana voters.
- When nonregistered eligible voter responses are included, the gap widens. 28.3 percent of eligible black voters in Indiana have no valid photo ID, compared to 16.8 percent of eligible voting age white residents.
- Among registered voters with proper ID, 41.6 percent are registered Republicans and 32.5 percent are Democrats.
"For years, this has been a debate long on sensational [voter fraud] allegations and short on facts," said Wendy Weiser, Brennan Center's Democracy Project deputy director, in a prepared statement. "Well, there are finally facts, and they suggest that the Indiana law has nothing to do with preventing voter fraud and everything to do with suppressing the votes of minority and low-income voters, students and seniors, with a substantial partisan skew."
Ironically, Indiana's voter ID law was not the only barrier faced by voters in the state's local elections earlier this month. In West Lafayette in Tippecanoe County, where some Purdue University students live, a new computerized voter registration system did not identify as many as 90 people as registered voters, when some were legal voters, the Purdue student newspaper, the Exponent, reported on Nov. 8, 2007.
Tippecanoe County Clerk Linda Phillips said several residents who did not cast provisional ballots returned later in the day to vote -- after the computer glitch was solved, the student newspaper reported. But one person who tried to vote, was rebuffed and did not return later in the day was the Exponent's managing editor.
"She couldn't return to vote later in the day due to her busy schedule," the paper reported. "That's at least two of us whose votes are in question. Anyone else?"
The Supreme Court will hear oral arguments in the case on Jan. 9, 2008.
Steven Rosenfeld is a senior fellow at Alternet.org and co-author of " What Happened in Ohio: A Documentary Record of Theft and Fraud in the 2004 Election ," with Bob Fitrakis and Harvey Wasserman (The New Press, 2006).