Crawford v. Marion County Election Board

(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CRAWFORD ET AL. v. MARION COUNTY ELECTION
BOARD ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 07–21. Argued January 9, 2008—Decided April 28, 2008*
After Indiana enacted an election law (SEA 483) requiring citizens vot-
ing in person to present government-issued photo identification, peti-
tioners filed separate suits challenging the law’s constitutionality.
Following discovery, the District Court granted respondents sum-
mary judgment, finding the evidence in the record insufficient to
support a facial attack on the statute’s validity. In affirming, the
Seventh Circuit declined to judge the law by the strict standard set
for poll taxes in Harper v. Virginia Bd. of Elections, 383 U.S. 663,
finding the burden on voters offset by the benefit of reducing the risk
of fraud.
Held: The judgment is affirmed.
472 F.3d 949, affirmed.
JUSTICE STEVENS, joined by THE CHIEF JUSTICE and JUSTICE KEN-
NEDY, concluded that the evidence in the record does not support a fa-
cial attack on SEA 483’s validity. Pp. 5–20.
(a) Under Harper, even rational restrictions on the right to vote are
invidious if they are unrelated to voter qualifications. However,
“even handed restrictions” protecting the “integrity and reliability of
the electoral process itself” satisfy Harper’s standard. Anderson v.
Celebrezze, 460 U.S. 780, 788, n. 9. A state law’s burden on a politi-
cal party, an individual voter, or a discrete class of voters must be
justified by relevant and legitimate state interests “sufficiently
weighty to justify the limitation.” Norman v. Reed, 502 U.S. 279,
——————
* Together with No. 07–25, Indiana Democratic Party et al. v. Rokita,
Secretary of State of Indiana, et al., also on certiorari to the same court.
2 CRAWFORD v. MARION COUNTY ELECTION BD.
Syllabus
288–289. Pp. 5–7.
(b) Each of Indiana’s asserted interests is unquestionably relevant
to its interest in protecting the integrity and reliability of the elec-
toral process. The first is the interest in deterring and detecting
voter fraud. Indiana has a valid interest in participating in a na-
tionwide effort to improve and modernize election procedures criti-
cized as antiquated and inefficient. Indiana also claims a particular
interest in preventing voter fraud in response to the problem of voter
registration rolls with a large number of names of persons who are
either deceased or no longer live in Indiana. While the record con-
tains no evidence that the fraud SEA 483 addresses—in-person voter
impersonation at polling places—has actually occurred in Indiana,
such fraud has occurred in other parts of the country, and Indiana’s
own experience with voter fraud in a 2003 mayoral primary demon-
strates a real risk that voter fraud could affect a close election’s out-
come. There is no question about the legitimacy or importance of a
State’s interest in counting only eligible voters’ votes. Finally, Indi-
ana’s interest in protecting public confidence in elections, while
closely related to its interest in preventing voter fraud, has inde-
pendent significance, because such confidence encourages citizen par-
ticipation in the democratic process. Pp. 7–13.
(c) The relevant burdens here are those imposed on eligible voters
who lack photo identification cards that comply with SEA 483. Be-
cause Indiana’s cards are free, the inconvenience of going to the Bu-
reau of Motor Vehicles, gathering required documents, and posing for
a photograph does not qualify as a substantial burden on most voters’
right to vote, or represent a significant increase over the usual bur-
dens of voting. The severity of the somewhat heavier burden that
may be placed on a limited number of persons—e.g., elderly persons
born out-of-state, who may have difficulty obtaining a birth certifi-
cate—is mitigated by the fact that eligible voters without photo iden-
tification may cast provisional ballots that will be counted if they
execute the required affidavit at the circuit court clerk’s office. Even
assuming that the burden may not be justified as to a few voters, that
conclusion is by no means sufficient to establish petitioners’ right to
the relief they seek. Pp. 13–16.
(d) Petitioners bear a heavy burden of persuasion in seeking to in-
validate SEA 483 in all its applications. This Court’s reasoning in
Washington State Grange v. Washington State Republican Party, 552
U.S. ___, applies with added force here. Petitioners argue that Indi-
ana’s interests do not justify the burden imposed on voters who can-
not afford or obtain a birth certificate and who must make a second
trip to the circuit court clerk’s office, but it is not possible to quantify,
based on the evidence in the record, either that burden’s magnitude
Cite as: 553 U. S. ____ (2008) 3
Syllabus
or the portion of the burden that is fully justified. A facial challenge
must fail where the statute has a “ ‘plainly legitimate sweep.’ ” Id., at
___. When considering SEA 483’s broad application to all Indiana
voters, it “imposes only a limited burden on voters’ rights.” Burdick
v. Takushi, 504 U.S. 428, 439. The “precise interests” advanced by
Indiana are therefore sufficient to defeat petitioners’ facial challenge.
Id., at 434. Pp. 16–20.
(e) Valid neutral justifications for a nondiscriminatory law, such as
SEA 483, should not be disregarded simply because partisan inter-
ests may have provided one motivation for the votes of individual leg-
islators. P. 20.
JUSTICE SCALIA, joined by JUSTICE THOMAS and JUSTICE ALITO, was
of the view that petitioners’ premise that the voter-identification law
might have imposed a special burden on some voters is irrelevant.
The law should be upheld because its overall burden is minimal and
justified. A law respecting the right to vote should be evaluated un-
der the approach in Burdick v. Takushi, 504 U.S. 428, which calls for
application of a deferential, “important regulatory interests” stan-
dard for nonsevere, nondiscriminatory restrictions, reserving strict
scrutiny for laws that severely restrict the right to vote, id., at 433–
434. The different ways in which Indiana’s law affects different vot-
ers are no more than different impacts of the single burden that the
law uniformly imposes on all voters: To vote in person, everyone must
have and present a photo identification that can be obtained for free.
This is a generally applicable, nondiscriminatory voting regulation.
The law’s universally applicable requirements are eminently reason-
able because the burden of acquiring, possessing, and showing a free
photo identification is not a significant increase over the usual voting
burdens, and the State’s stated interests are sufficient to sustain that
minimal burden. Pp. 1–6.
STEVENS, J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. SCALIA, J.,
filed an opinion concurring in the judgment, in which THOMAS and
ALITO, JJ., joined. SOUTER, J., filed a dissenting opinion, in which
GINSBURG, J., joined. BREYER, J., filed a dissenting opinion.
Cite as: 553 U. S. ____ (2008) 1
Opinion of STEVENS, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 07–21 and 07–25
_________________
WILLIAM CRAWFORD, ET AL., PETITIONERS
07–21 v.
MARION COUNTY ELECTION BOARD ET AL.
INDIANA DEMOCRATIC PARTY, ET AL., PETITIONERS
07–25 v.
TODD ROKITA, INDIANA SECRETARY OF STATE,
ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[April 28, 2008]
JUSTICE STEVENS announced the judgment of the Court
and delivered an opinion in which THE CHIEF JUSTICE and
JUSTICE KENNEDY join.
At issue in these cases is the constitutionality of an
Indiana statute requiring citizens voting in person on
election day, or casting a ballot in person at the office of
the circuit court clerk prior to election day, to present
photo identification issued by the government.
Referred to as either the “Voter ID Law” or “SEA 483,”1
the statute applies to in-person voting at both primary and
general elections. The requirement does not apply to
absentee ballots submitted by mail, and the statute con-
tains an exception for persons living and voting in a state-
——————
1 Senate Enrolled Act No. 483, 2005 Ind. Acts p. 2005.
2 CRAWFORD v. MARION COUNTY ELECTION BD.
Opinion of STEVENS, J.
licensed facility such as a nursing home. Ind. Code Ann.
§3–11–8–25.1(e) (West Supp. 2007). A voter who is indi-
gent or has a religious objection to being photographed
may cast a provisional ballot that will be counted only if
she executes an appropriate affidavit before the circuit
court clerk within 10 days following the election. §§3–
11.7–5–1, 3–11.7–5–2.5(c) (West 2006).2 A voter who has
photo identification but is unable to present that identifi-
cation on election day may file a provisional ballot that
will be counted if she brings her photo identification to the
circuit county clerk’s office within 10 days. §3–11.7–5–
2.5(b). No photo identification is required in order to
register to vote,3 and the State offers free photo identifica-
tion to qualified voters able to establish their residence
and identity. §9–24–16–10(b) (West Supp. 2007).4
Promptly after the enactment of SEA 483 in 2005, the
Indiana Democratic Party and the Marion County Democ-
ratic Central Committee (Democrats) filed suit in the
Federal District Court for the Southern District of Indiana
against the state officials responsible for its enforcement,
seeking a judgment declaring the Voter ID Law invalid
——————
2 The affidavit must state that (1) the person executing the affidavit is
the same individual who cast the provisional ballot on election day; and
(2) the affiant is indigent and unable to obtain proof of identification
without paying a fee or has a religious objection to being photographed.
Ind. Code Ann. §3–11–7.5–2.5(c) (West 2006). If the election board
determines that the challenge to the affiant was based solely on a
failure to present photo identification, the “county election board shall
. . . find that the voter’s provisional ballot is valid.” §3–11–7.5–2.5(d).
3 Voters registering to vote for the first time in Indiana must abide by
the requirements of the Help America Vote Act of 2002 (HAVA), 116
Stat. 1666, described infra, at 8–9.
4 Indiana previously imposed a fee on all residents seeking a state-
issued photo identification. At the same time that the Indiana Legisla-
ture enacted SEA 483, it also directed the Bureau of Motor Vehicles
(BMV) to remove all fees for state-issued photo identification for indi-
viduals without a driver’s license who are at least 18 years old. See
2005 Ind. Acts p. 2017, §18.
Cite as: 553 U. S. ____ (2008) 3
Opinion of STEVENS, J.
and enjoining its enforcement. A second suit seeking the
same relief was brought on behalf of two elected officials
and several nonprofit organizations representing groups of
elderly, disabled, poor, and minority voters.5 The cases
were consolidated, and the State of Indiana intervened to
defend the validity of the statute.
The complaints in the consolidated cases allege that the
new law substantially burdens the right to vote in viola-
tion of the Fourteenth Amendment; that it is neither a
necessary nor appropriate method of avoiding election
fraud; and that it will arbitrarily disfranchise qualified
voters who do not possess the required identification and
will place an unjustified burden on those who cannot
readily obtain such identification. Second Amended Com-
plaint in No. 1: 05–CV–0634–SEB–VSS (SD Ind.), pp. 6–9
(hereinafter Second Amended Complaint).
After discovery, District Judge Barker prepared a com-
prehensive 70-page opinion explaining her decision to
grant defendants’ motion for summary judgment. 458
F. Supp. 2d 775 (SD Ind. 2006). She found that petition-
ers had “not introduced evidence of a single, individual
Indiana resident who will be unable to vote as a result of
SEA 483 or who will have his or her right to vote unduly
burdened by its requirements.” Id., at 783. She rejected
“as utterly incredible and unreliable” an expert’s report
that up to 989,000 registered voters in Indiana did not
possess either a driver’s license or other acceptable photo
identification. Id., at 803. She estimated that as of 2005,
when the statute was enacted, around 43,000 Indiana
——————
5 Specifically, the plaintiffs were William Crawford, Joseph Simpson,
Concerned Clergy of Indianapolis, Indianapolis Resource Center for
Independent Living, Indiana Coalition on Housing and Homeless
Issues, Indianapolis Branch of the National Association for the Ad-
vancement of Colored People, and United Senior Action of Indiana.
Complaint in No. 49012050 4PL01 6207 (Super. Ct. Marion Cty., Ind.,
Apr. 28, 2005), p. 2.
4 CRAWFORD v. MARION COUNTY ELECTION BD.
Opinion of STEVENS, J.
residents lacked a state-issued driver’s license or identifi-
cation card. Id., at 807.6
A divided panel of the Court of Appeals affirmed. 472
F.3d 949 (CA7 2007). The majority first held that the
Democrats had standing to bring a facial challenge to the
constitutionality of SEA 483. Next, noting the absence of
any plaintiffs who claimed that the law would deter them
from voting, the Court of Appeals inferred that “the moti-
vation for the suit is simply that the law may require the
Democratic Party and the other organizational plaintiffs
to work harder to get every last one of their supporters to
the polls.” Id., at 952. It rejected the argument that the
law should be judged by the same strict standard applica-
ble to a poll tax because the burden on voters was offset by
the benefit of reducing the risk of fraud. The dissenting
judge, viewing the justification for the law as “hollow”—
more precisely as “a not-too-thinly-veiled attempt to dis-
courage election-day turnout by certain folks believed to
skew Democratic”—would have applied a stricter stan-
dard, something he described as “close to ‘strict scrutiny
light.’ ” Id., at 954, 956 (opinion of Evans, J.). In his view,
the “law imposes an undue burden on a recognizable
segment of potential eligible voters” and therefore violates
their rights under the First and Fourteenth Amendments
to the Constitution. Id., at 956–957.
Four judges voted to grant a petition for rehearing en
banc. 484 F.3d 437 (CA7 2007) (Wood, J., dissenting from
denial of rehearing en banc). Because we agreed with
their assessment of the importance of these cases, we
——————
6 She added: “In other words, an estimated 99% of Indiana’s voting
age population already possesses the necessary photo identification to
vote under the requirements of SEA 483.” 458 F. Supp. 2d, at 807.
Given the availability of free photo identification and greater public
awareness of the new statutory requirement, presumably that percent-
age has increased since SEA 483 was enacted and will continue to
increase in the future.
Cite as: 553 U. S. ____ (2008) 5
Opinion of STEVENS, J.
granted certiorari. 551 U. S. ___ (2007). We are, however,
persuaded that the District Court and the Court of Ap-
peals correctly concluded that the evidence in the record is
not sufficient to support a facial attack on the validity of
the entire statute, and thus affirm.7
I
In Harper v. Virginia Bd. of Elections, 383 U.S. 663(1966), the Court held that Virginia could not condition
the right to vote in a state election on the payment of a
poll tax of $1.50. We rejected the dissenters’ argument
that the interest in promoting civic responsibility by weed-
ing out those voters who did not care enough about public
affairs to pay a small sum for the privilege of voting pro-
vided a rational basis for the tax. See id., at 685 (opinion
of Harlan, J.). Applying a stricter standard, we concluded
that a State “violates the Equal Protection Clause of the
Fourteenth Amendment whenever it makes the affluence
of the voter or payment of any fee an electoral standard.”
Id., at 666 (opinion of the Court). We used the term “in-
vidiously discriminate” to describe conduct prohibited
under that standard, noting that we had previously held
that while a State may obviously impose “reasonable
residence restrictions on the availability of the ballot,” it
“may not deny the opportunity to vote to a bona fide resi-
dent merely because he is a member of the armed ser-
vices.” Id., at 666–667 (citing Carrington v. Rash, 380
U.S. 89, 96 (1965)). Although the State’s justification for
the tax was rational, it was invidious because it was ir-
relevant to the voter’s qualifications.
Thus, under the standard applied in Harper, even ra-
tional restrictions on the right to vote are invidious if they
——————
7 We also agree with the unanimous view of those judges that the
Democrats have standing to challenge the validity of SEA 483 and that
there is no need to decide whether the other petitioners also have
standing.
6 CRAWFORD v. MARION COUNTY ELECTION BD.
Opinion of STEVENS, J.
are unrelated to voter qualifications. In Anderson v.
Celebrezze, 460 U.S. 780 (1983), however, we confirmed
the general rule that “evenhanded restrictions that protect
the integrity and reliability of the electoral process itself”
are not invidious and satisfy the standard set forth in
Harper. 460 U. S., at 788, n. 9. Rather than applying any
“litmus test” that would neatly separate valid from invalid
restrictions, we concluded that a court must identify and
evaluate the interests put forward by the State as justifi-
cations for the burden imposed by its rule, and then make
the “hard judgment” that our adversary system demands.
In later election cases we have followed Anderson’s
balancing approach. Thus, in Norman v. Reed, 502 U.S.
279, 288–289 (1992), after identifying the burden Illinois
imposed on a political party’s access to the ballot, we
“called for the demonstration of a corresponding interest
sufficiently weighty to justify the limitation,” and con-
cluded that the “severe restriction” was not justified by a
narrowly drawn state interest of compelling importance.
Later, in Burdick v. Takushi, 504 U.S. 428 (1992), we
applied Anderson’s standard for “ ‘reasonable, nondis-
criminatory restrictions,’ ” 504 U. S., at 434, and upheld
Hawaii’s prohibition on write-in voting despite the fact
that it prevented a significant number of “voters from
participating in Hawaii elections in a meaningful man-
ner.” Id., at 443 (KENNEDY, J., dissenting). We reaffirmed
Anderson’s requirement that a court evaluating a constitu-
tional challenge to an election regulation weigh the as-
serted injury to the right to vote against the “ ‘precise
interests put forward by the State as justifications for the
burden imposed by its rule.’ ” 504 U. S., at 434 (quoting
Anderson, 460 U. S., at 789).8
——————
8 Contrary to JUSTICE SCALIA’s suggestion, see post, at 2 (opinion
concurring in judgment), our approach remains faithful to Anderson
and Burdick. The Burdick opinion was explicit in its endorsement and
Cite as: 553 U. S. ____ (2008) 7
Opinion of STEVENS, J.
In neither Norman nor Burdick did we identify any
litmus test for measuring the severity of a burden that a
state law imposes on a political party, an individual voter,
or a discrete class of voters. However slight that burden
may appear, as Harper demonstrates, it must be justified
by relevant and legitimate state interests “sufficiently
weighty to justify the limitation.” Norman, 502 U. S.,
at 288–289. We therefore begin our analysis of the con-
stitutionality of Indiana’s statute by focusing on those
interests.
II
The State has identified several state interests that
arguably justify the burdens that SEA 483 imposes on
voters and potential voters. While petitioners argue that
the statute was actually motivated by partisan concerns
and dispute both the significance of the State’s interests
and the magnitude of any real threat to those interests,
they do not question the legitimacy of the interests the
State has identified. Each is unquestionably relevant to
the State’s interest in protecting the integrity and reliabil-
ity of the electoral process.
The first is the interest in deterring and detecting voter
fraud. The State has a valid interest in participating in a
nationwide effort to improve and modernize election pro-
cedures that have been criticized as antiquated and ineffi-
cient.9 The State also argues that it has a particular
——————
adherence to Anderson, see 504 U. S., at 434, and repeatedly cited
Anderson, see 504 U. S., at 436, n. 5, 440, n. 9, 441. To be sure, Burdick
rejected the argument that strict scrutiny applies to all laws imposing a
burden on the right to vote; but in its place, the Court applied the
“ ‘flexible standard’ ” set forth in Anderson. Burdick surely did not
create a novel “deferential ‘important regulatory interests’ standard.”
See post, at 1–2.
9 See National Commission on Federal Election Reform, To Assure
Pride and Confidence in the Electoral Process 18 (2002) (with Honorary
Co-chairs former Presidents Gerald Ford and Jimmy Carter).
8 CRAWFORD v. MARION COUNTY ELECTION BD.
Opinion of STEVENS, J.
interest in preventing voter fraud in response to a problem
that is in part the product of its own maladministration—
namely, that Indiana’s voter registration rolls include a
large number of names of persons who are either deceased
or no longer live in Indiana. Finally, the State relies on its
interest in safeguarding voter confidence. Each of these
interests merits separate comment.
Election Modernization
Two recently enacted federal statutes have made it
necessary for States to reexamine their election proce-
dures. Both contain provisions consistent with a State’s
choice to use government-issued photo identification as a
relevant source of information concerning a citizen’s eligi-
bility to vote.
In the National Voter Registration Act of 1993 (NVRA),
107 Stat. 77, 42 U.S. C. §1973gg et seq., Congress estab-
lished procedures that would both increase the number of
registered voters and protect the integrity of the electoral
process. §1973gg. The statute requires state motor vehi-
cle driver’s license applications to serve as voter registra-
tion applications. §1973gg–3. While that requirement has
increased the number of registered voters, the statute also
contains a provision restricting States’ ability to remove
names from the lists of registered voters. §1973gg–6(a)(3).
These protections have been partly responsible for inflated
lists of registered voters. For example, evidence credited
by Judge Barker estimated that as of 2004 Indiana’s voter
rolls were inflated by as much as 41.4%, see 458 F. Supp.
2d, at 793, and data collected by the Election Assistance
Committee in 2004 indicated that 19 of 92 Indiana coun-
ties had registration totals exceeding 100% of the 2004
voting-age population, Dept. of Justice Complaint in
United States v. Indiana, No. 1:06–cv–1000–RLY–TAB
(SD Ind., June 27, 2006), p. 4, App. 313.
In HAVA, Congress required every State to create and
Cite as: 553 U. S. ____ (2008) 9
Opinion of STEVENS, J.
maintain a computerized statewide list of all registered
voters. 42 U.S. C. §15483(a) (2000 ed., Supp. V). HAVA
also requires the States to verify voter information con-
tained in a voter registration application and specifies
either an “applicant’s driver’s license number” or “the last
4 digits of the applicant’s social security number” as
acceptable verifications. §15483(a)(5)(A)(i). If an indi-
vidual has neither number, the State is required to
assign the applicant a voter identification number.
§15483(a)(5)(A)(ii).
HAVA also imposes new identification requirements for
individuals registering to vote for the first time who sub-
mit their applications by mail. If the voter is casting his
ballot in person, he must present local election officials
with written identification, which may be either “a current
and valid photo identification” or another form of docu-
mentation such as a bank statement or paycheck.
§15483(b)(2)(A). If the voter is voting by mail, he must
include a copy of the identification with his ballot. A voter
may also include a copy of the documentation with his
application or provide his driver’s license number or Social
Security number for verification. §15483(b)(3). Finally, in
a provision entitled “Fail-safe voting,” HAVA authorizes
the casting of provisional ballots by challenged voters.
§15483(b)(2)(B).
Of course, neither HAVA nor NVRA required Indiana to
enact SEA 483, but they do indicate that Congress be-
lieves that photo identification is one effective method of
establishing a voter’s qualification to vote and that the
integrity of elections is enhanced through improved tech-
nology. That conclusion is also supported by a report
issued shortly after the enactment of SEA 483 by the
Commission on Federal Election Reform chaired by former
President Jimmy Carter and former Secretary of State
James A. Baker III, which is a part of the record in these
cases. In the introduction to their discussion of voter
10 CRAWFORD v. MARION COUNTY ELECTION BD.
Opinion of STEVENS, J.
identification, they made these pertinent comments:
“A good registration list will ensure that citizens are
only registered in one place, but election officials still
need to make sure that the person arriving at a poll-
ing site is the same one that is named on the registra-
tion list. In the old days and in small towns where
everyone knows each other, voters did not need to
identify themselves. But in the United States, where
40 million people move each year, and in urban areas
where some people do not even know the people living
in their own apartment building let alone their pre-
cinct, some form of identification is needed.
“There is no evidence of extensive fraud in U. S.
elections or of multiple voting, but both occur, and it
could affect the outcome of a close election. The elec-
toral system cannot inspire public confidence if no
safeguards exist to deter or detect fraud or to confirm
the identity of voters. Photo identification cards cur-
rently are needed to board a plane, enter federal
buildings, and cash a check. Voting is equally impor-
tant.” Commission on Federal Election Reform, Re-
port, Building Confidence in U. S. Elections §2.5
(Sept. 2005), App. 136–137 (Carter-Baker Report)
(footnote omitted).10
——————
10 The historical perceptions of the Carter-Baker Report can largely
be confirmed. The average precinct size in the United States has
increased in the last century, suggesting that it is less likely that poll
workers will be personally acquainted with voters. For example, at
the time Joseph Harris wrote his groundbreaking 1934 report
on election administration, Indiana restricted the number of voters
in each precinct to 250. J. Harris, Election Administration in
the United States 208 (Brookings Institution 1934). An Elec-
tion Commission report indicates that Indiana’s average number
of registered voters per polling place is currently 1,014. Election
Assistance Commission, Final Report of the 2004 Election Day
Survey, ch. 13 (Sept. 2005) (Table 13) (hereinafter Final Report)
Cite as: 553 U. S. ____ (2008) 11
Opinion of STEVENS, J.
Voter Fraud
The only kind of voter fraud that SEA 483 addresses is
in-person voter impersonation at polling places. The
record contains no evidence of any such fraud actually
occurring in Indiana at any time in its history. Moreover,
petitioners argue that provisions of the Indiana Criminal
Code punishing such conduct as a felony provide adequate
protection against the risk that such conduct will occur in
the future. It remains true, however, that flagrant exam-
ples of such fraud in other parts of the country have been
documented throughout this Nation’s history by respected
historians and journalists,11 that occasional examples have
surfaced in recent years,12 and that Indiana’s own experi-
——————
(prepared by Election Data Services, Inc.), online at http://
www.eac.gov/clearinghouse/clearinghouse/2004-election-day-survey (all
Internet materials as visited Apr. 16, 2008, and available in Clerk of
Court’s case file). In 1930, the major cities that Harris surveyed had an
average number of voters per precinct that ranged from 247 to 617.
Election Administration in the United States, at 214. While States
vary today, most have averages exceeding 1,000, with at least eight
States exceeding 2,000 registered voters per polling place. Final
Report, ch. 13 (Table 13).
11 Infamous examples abound in the New York City elections of the
late nineteenth century, conducted under the influence of the Tammany
Hall political machine. “Big Tim” Sullivan, a New York state senator,
and—briefly—a United States Congressman, insisted that his “repeat-
ers” (individuals paid to vote multiple times) have whiskers:
“ ‘When you’ve voted ’em with their whiskers on you take ’em to a
barber and scrape off the chin-fringe. Then you vote ’em again with
side lilacs and a moustache. Then to a barber again, off comes the sides
and you vote ’em a third time with the moustache. If that ain’t enough
and the box can stand a few more ballots clean off the moustache and
vote ’em plain face. That makes every one of ’em good for four votes.’ ”
M. Werner, Tammany Hall 439 (1928).
12 Judge Barker cited record evidence containing examples from Cali-
fornia, Washington, Maryland, Wisconsin, Georgia, Illinois, Pennsyl-
vania, Missouri, Miami, and St. Louis. The Brief of Amici Curiae
Brennan Center for Justice et al. in Support of Petitioners addresses
12 CRAWFORD v. MARION COUNTY ELECTION BD.
Opinion of STEVENS, J.
ence with fraudulent voting in the 2003 Democratic pri-
mary for East Chicago Mayor13—though perpetrated using
absentee ballots and not in-person fraud—demonstrate
that not only is the risk of voter fraud real but that it
could affect the outcome of a close election.
There is no question about the legitimacy or importance
of the State’s interest in counting only the votes of eligible
voters. Moreover, the interest in orderly administration
and accurate recordkeeping provides a sufficient justifica-
tion for carefully identifying all voters participating in the
election process. While the most effective method of pre-
venting election fraud may well be debatable, the propri-
ety of doing so is perfectly clear.
In its brief, the State argues that the inflation of its
voter rolls provides further support for its enactment of
SEA 483. The record contains a November 5, 2000, news-
paper article asserting that as a result of NVRA and
——————
each of these examples of fraud. While the brief indicates that the
record evidence of in-person fraud was overstated because much of the
fraud was actually absentee ballot fraud or voter registration fraud,
there remain scattered instances of in-person voter fraud. For example,
after a hotly contested gubernatorial election in 2004, Washington
conducted an investigation of voter fraud and uncovered 19 “ghost
voters.” Borders v. King Cty., No. 05–2–00027–3 (Super. Ct. Chelan
Cty., Wash., June 6, 2005) (verbatim report of unpublished oral deci-
sion), 4 Election L. J. 418, 423 (2005). After a partial investigation of
the ghost voting, one voter was confirmed to have committed in-person
voting fraud. Le & Nicolosi, Dead Voted in Governor’s Race, Seattle
Post-Intelligencer, Jan. 7, 2005, p. A1.
13 See Pabey v. Pastrick, 816 N.E.2d 1138, 1151 (Ind. 2006) (holding
that a special election was required because one candidate engaged in
“a deliberate series of actions . . . making it impossible to determine the
candidate who received the highest number of legal votes cast in the
election”). According to the uncontested factual findings of the trial
court, one of the candidates paid supporters to stand near polling places
and encourage voters—especially those who were poor, infirm, or spoke
little English—to vote absentee. The supporters asked the voters to
contact them when they received their ballots; the supporters then
“assisted” the voter in filling out the ballot.
Cite as: 553 U. S. ____ (2008) 13
Opinion of STEVENS, J.
“sloppy record keeping,” Indiana’s lists of registered voters
included the names of thousands of persons who had
either moved, died, or were not eligible to vote because
they had been convicted of felonies.14 The conclusion that
Indiana has an unusually inflated list of registered voters
is supported by the entry of a consent decree in litigation
brought by the Federal Government alleging violations of
NVRA. Consent Decree and Order in United States v.
Indiana, No. 1:06–cv–1000–RLY–TAB (SD Ind., June 27,
2006), App. 299–307. Even though Indiana’s own negli-
gence may have contributed to the serious inflation of its
registration lists when SEA 483 was enacted, the fact of
inflated voter rolls does provide a neutral and nondis-
criminatory reason supporting the State’s decision to
require photo identification.
Safeguarding Voter Confidence
Finally, the State contends that it has an interest in
protecting public confidence “in the integrity and legiti-
macy of representative government.” Brief for State Re-
spondents, No. 07-25, p. 53. While that interest is closely
related to the State’s interest in preventing voter fraud,
public confidence in the integrity of the electoral process
has independent significance, because it encourages citi-
zen participation in the democratic process. As the
Carter-Baker Report observed, the “electoral system can-
not inspire public confidence if no safeguards exist to deter
or detect fraud or to confirm the identity of voters.” Su-
pra, at 10.
III
States employ different methods of identifying eligible
voters at the polls. Some merely check off the names of
registered voters who identify themselves; others require
——————
14 Theobald, Bogus Names Jam Indiana’s Voter List, Indianapolis
Star, Nov. 5, 2000, App. 145.
14 CRAWFORD v. MARION COUNTY ELECTION BD.
Opinion of STEVENS, J.
voters to present registration cards or other documenta-
tion before they can vote; some require voters to sign their
names so their signatures can be compared with those on
file; and in recent years an increasing number of States
have relied primarily on photo identification.15 A photo
identification requirement imposes some burdens on
voters that other methods of identification do not share.
For example, a voter may lose his photo identification,
may have his wallet stolen on the way to the polls, or may
not resemble the photo in the identification because he
recently grew a beard. Burdens of that sort arising from
life’s vagaries, however, are neither so serious nor so
frequent as to raise any question about the constitutional-
ity of SEA 483; the availability of the right to cast a provi-
sional ballot provides an adequate remedy for problems of
that character.
The burdens that are relevant to the issue before us are
those imposed on persons who are eligible to vote but do
not possess a current photo identification that complies
with the requirements of SEA 483.16 The fact that most
voters already possess a valid driver’s license, or some
other form of acceptable identification, would not save the
statute under our reasoning in Harper, if the State re-
——————
15 For a survey of state practice, see Brief for Texas et al. as Amici
Curiae 10–14, and nn. 1–23.
16 Ind. Code Ann. §3–5–2–40.5 (West 2006) requires that the docu-
ment satisfy the following:
“(1) The document shows the name of the individual to whom the
document was issued, and the name conforms to the name in the
individual’s voter registration record.
“(2) The document shows a photograph of the individual to whom the
document was issued.
“(3) The document includes an expiration date, and the document:
“(A) is not expired; or
“(B) expired after the date of the most recent general election.
“(4) The document was issued by the United States or the state of
Indiana.”
Cite as: 553 U. S. ____ (2008) 15
Opinion of STEVENS, J.
quired voters to pay a tax or a fee to obtain a new photo
identification. But just as other States provide free voter
registration cards, the photo identification cards issued by
Indiana’s BMV are also free. For most voters who need
them, the inconvenience of making a trip to the BMV,
gathering the required documents, and posing for a photo-
graph surely does not qualify as a substantial burden on
the right to vote, or even represent a significant increase
over the usual burdens of voting.17
Both evidence in the record and facts of which we may
take judicial notice, however, indicate that a somewhat
heavier burden may be placed on a limited number of
persons. They include elderly persons born out-of-state,
who may have difficulty obtaining a birth certificate;18
persons who because of economic or other personal limita-
tions may find it difficult either to secure a copy of their
birth certificate or to assemble the other required docu-
mentation to obtain a state-issued identification; homeless
persons; and persons with a religious objection to being
photographed. If we assume, as the evidence suggests,
——————
17 To obtain a photo identification card a person must present at least
one “primary” document, which can be a birth certificate, certificate of
naturalization, U. S. veterans photo identification, U. S. military photo
identification, or a U. S. passport. Ind. Admin. Code, tit. 140, §7–4–3
(2008). Indiana, like most States, charges a fee for obtaining a copy of
one’s birth certificate. This fee varies by county and is currently
between $3 and $12. See Indiana State Department of Health Web
page, http://www.in.gov/isdh/bdcertifs/lhdfees/toc.htm. Some States
charge substantially more. Affidavit of Robert Andrew Ford, App. 12.
18 As petitioners note, Brief for Petitioners in No. 07–21, p. 17, n. 7,
and the State’s “Frequently Asked Questions” Web page states, it
appears that elderly persons who can attest that they were never
issued a birth certificate may present other forms of identification as
their primary document to the Indiana BMV, including Medi-
caid/Medicare cards and Social Security benefits statements.
http://www.in.gov/faqs.htm; see also Ind. Admin. Code, tit. 140, §7–4–3
(“The commissioner or the commissioner’s designee may accept reason-
able alternate documents to satisfy the requirements of this rule”).
16 CRAWFORD v. MARION COUNTY ELECTION BD.
Opinion of STEVENS, J.
that some members of these classes were registered voters
when SEA 483 was enacted, the new identification re-
quirement may have imposed a special burden on their
right to vote.
The severity of that burden is, of course, mitigated by
the fact that, if eligible, voters without photo identification
may cast provisional ballots that will ultimately be
counted. To do so, however, they must travel to the circuit
court clerk’s office within 10 days to execute the required
affidavit. It is unlikely that such a requirement would
pose a constitutional problem unless it is wholly unjusti-
fied. And even assuming that the burden may not be
justified as to a few voters,19 that conclusion is by no
means sufficient to establish petitioners’ right to the relief
they seek in this litigation.
IV
Given the fact that petitioners have advanced a broad
attack on the constitutionality of SEA 483, seeking relief
that would invalidate the statute in all its applications,
they bear a heavy burden of persuasion. Only a few weeks
ago we held that the Court of Appeals for the Ninth Cir-
cuit had failed to give appropriate weight to the magni-
tude of that burden when it sustained a preelection, facial
attack on a Washington statute regulating that State’s
primary election procedures. Washington State Grange v.
Washington State Republican Party, 552 U.S. ___ (2008).
Our reasoning in that case applies with added force to the
arguments advanced by petitioners in these cases.
——————
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. See Ind. Code Ann. 9–24–11–5(c) (West Supp.
2007).
Cite as: 553 U. S. ____ (2008) 17
Opinion of STEVENS, J.
Petitioners ask this Court, in effect, to perform a unique
balancing analysis that looks specifically at a small num-
ber of voters who may experience a special burden under
the statute and weighs their burdens against the State’s
broad interests in protecting election integrity. Petition-
ers urge us to ask whether the State’s interests justify the
burden imposed on voters who cannot afford or obtain a
birth certificate and who must make a second trip to the
circuit court clerk’s office after voting. But on the basis of
the evidence in the record it is not possible to quantify
either the magnitude of the burden on this narrow class of
voters or the portion of the burden imposed on them that
is fully justified.
First, the evidence in the record does not provide us
with the number of registered voters without photo identi-
fication; Judge Barker found petitioners’ expert’s report to
be “utterly incredible and unreliable.” 458 F. Supp. 2d, at
803. Much of the argument about the numbers of such
voters comes from extrarecord, postjudgment studies, the
accuracy of which has not been tested in the trial court.
Further, the deposition evidence presented in the Dis-
trict Court does not provide any concrete evidence of the
burden imposed on voters who currently lack photo identi-
fication. The record includes depositions of two case man-
agers at a day shelter for homeless persons and the depo-
sitions of members of the plaintiff organizations, none of
whom expressed a personal inability to vote under SEA
483. A deposition from a named plaintiff describes the
difficulty the elderly woman had in obtaining an identifi-
cation card, although her testimony indicated that she
intended to return to the BMV since she had recently
obtained her birth certificate and that she was able to pay
the birth certificate fee. App. 94.
Judge Barker’s opinion makes reference to six other
elderly named plaintiffs who do not have photo identifica-
tions, but several of these individuals have birth certifi-
18 CRAWFORD v. MARION COUNTY ELECTION BD.
Opinion of STEVENS, J.
cates or were born in Indiana and have not indicated how
difficult it would be for them to obtain a birth certificate.
458 F. Supp. 2d, at 797–799. One elderly named plaintiff
stated that she had attempted to obtain a birth certificate
from Tennessee, but had not been successful, and another
testified that he did not know how to obtain a birth certifi-
cate from North Carolina. The elderly in Indiana, how-
ever, may have an easier time obtaining a photo identifi-
cation card than the nonelderly, see n. 17, supra, and
although it may not be a completely acceptable alterna-
tive, the elderly in Indiana are able to vote absentee with-
out presenting photo identification.
The record says virtually nothing about the difficulties
faced by either indigent voters or voters with religious
objections to being photographed. While one elderly man
stated that he did not have the money to pay for a birth
certificate, when asked if he did not have the money or did
not wish to spend it, he replied, “both.” App. 211–212.
From this limited evidence we do not know the magnitude
of the impact SEA 483 will have on indigent voters in
Indiana. The record does contain the affidavit of one
homeless woman who has a copy of her birth certificate,
but was denied a photo identification card because she did
not have an address. Id., at 67. But that single affidavit
gives no indication of how common the problem is.
In sum, on the basis of the record that has been made in
this litigation, we cannot conclude that the statute im-
poses “excessively burdensome requirements” on any class
of voters. See Storer v. Brown, 415 U.S. 724, 738 (1974).20
——————
20 Three comments on JUSTICE SOUTER’s speculation about the non-
trivial burdens that SEA 483 may impose on “tens of thousands” of
Indiana citizens, post, at 1 (dissenting opinion), are appropriate. First,
the fact that the District Judge estimated that when the statute was
passed in 2005, 43,000 citizens did not have photo identification, see
458 F. Supp. 2d 775, 807 (SD Ind. 2006), tells us nothing about the
number of free photo identification cards issued since then. Second, the
Cite as: 553 U. S. ____ (2008) 19
Opinion of STEVENS, J.
A facial challenge must fail where the statute has a
“ ‘plainly legitimate sweep.’ ” Washington State Grange,
552 U. S., at ___ (quoting Washington v. Glucksberg, 521
U.S. 702, 739–740, and n. 7 (1997) (STEVENS, J., concur-
ring in judgments)). When we consider only the statute’s
broad application to all Indiana voters we conclude that it
“imposes only a limited burden on voters’ rights.” Bur-
dick, 504 U. S., at 439. The “ ‘precise interests’ ” advanced
by the State are therefore sufficient to defeat petitioners’
facial challenge to SEA 483. Id., at 434.
Finally we note that petitioners have not demonstrated
that the proper remedy—even assuming an unjustified
burden on some voters—would be to invalidate the entire
statute. When evaluating a neutral, nondiscriminatory
regulation of voting procedure, “[w]e must keep in mind
that “ ‘[a] ruling of unconstitutionality frustrates the in-
tent of the elected representatives of the people.’ ” Ayotte
v. Planned Parenthood of Northern New Eng., 546 U. S.
——————
fact that public transportation is not available in some Indiana counties
tells us nothing about how often elderly and indigent citizens have an
opportunity to obtain a photo identification at the BMV, either during a
routine outing with family or friends or during a special visit to the
BMV arranged by a civic or political group such as the League of
Women Voters or a political party. Further, nothing in the record
establishes the distribution of voters who lack photo identification. To
the extent that the evidence sheds any light on that issue, it suggests
that such voters reside primarily in metropolitan areas, which are
served by public transportation in Indiana (the majority of the plain-
tiffs reside in Indianapolis and several of the organizational plaintiffs
are Indianapolis organizations). Third, the indigent, elderly, or dis-
abled need not “journey all the way to their county seat each time they
wish to exercise the franchise,” post, at 29, if they obtain a free photo
identification card from the BMV. While it is true that obtaining a
birth certificate carries with it a financial cost, the record does not
provide even a rough estimate of how many indigent voters lack copies
of their birth certificates. Supposition based on extensive Internet
research is not an adequate substitute for admissible evidence subject
to cross-examination in constitutional adjudication.
20 CRAWFORD v. MARION COUNTY ELECTION BD.
Opinion of STEVENS, J.
320, 329 (2006) (quoting Regan v. Time, Inc., 468 U.S.
641, 652 (1984) (plurality opinion))” Washington State
Grange, 552 U. S., at ___ (slip op., at 8).
V
In their briefs, petitioners stress the fact that all of the
Republicans in the General Assembly voted in favor of
SEA 483 and the Democrats were unanimous in opposing
it.21 In her opinion rejecting petitioners’ facial challenge,
Judge Barker noted that the litigation was the result of a
partisan dispute that had “spilled out of the state house
into the courts.” 458 F. Supp. 2d, at 783. It is fair to infer
that partisan considerations may have played a significant
role in the decision to enact SEA 483. If such considera-
tions had provided the only justification for a photo identi-
fication requirement, we may also assume that SEA 483
would suffer the same fate as the poll tax at issue in
Harper.
But if a nondiscriminatory law is supported by valid
neutral justifications, those justifications should not be
disregarded simply because partisan interests may have
provided one motivation for the votes of individual legisla-
tors. The state interests identified as justifications for
SEA 483 are both neutral and sufficiently strong to re-
quire us to reject petitioners’ facial attack on the statute.
The application of the statute to the vast majority of Indi-
ana voters is amply justified by the valid interest in pro-
tecting “the integrity and reliability of the electoral proc-
ess.” Anderson, 460 U. S., at 788, n. 9.
——————
21 Brief for Petitioners in No. 07–25, pp. 6–9. Fifty-two Republican
House members voted for the bill, 45 Democrats voted against, and 3
Democrats were excused from voting. 3 Journal of the House of Repre-
sentatives of Indiana, Roll Call 259 (Mar. 21, 2005). In the Senate, 33
Republican Senators voted in favor and 17 Democratic Senators voted
against. 3 Journal of the Senate of Indiana, Roll Call 417 (Apr. 12,
2005).
Cite as: 553 U. S. ____ (2008)
21
Opinion of STEVENS, J.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Cite as: 553 U. S. ____ (2008) 1
SCALIA, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 07–21 and 07–25
_________________
WILLIAM CRAWFORD, ET AL., PETITIONERS
07–21 v.
MARION COUNTY ELECTION BOARD ET AL.
INDIANA DEMOCRATIC PARTY, ET AL., PETITIONERS
07–25 v.
TODD ROKITA, INDIANA SECRETARY OF STATE,
ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[April 28, 2008]
JUSTICE SCALIA, with whom JUSTICE THOMAS and JUS-
TICE ALITO join, concurring in the judgment.
The lead opinion assumes petitioners’ premise that the
voter-identification law “may have imposed a special
burden on” some voters, ante, at 16, but holds that peti-
tioners have not assembled evidence to show that the
special burden is severe enough to warrant strict scrutiny,
ante, at 18–19. That is true enough, but for the sake of
clarity and finality (as well as adherence to precedent), I
prefer to decide these cases on the grounds that petition-
ers’ premise is irrelevant and that the burden at issue is
minimal and justified.
To evaluate a law respecting the right to vote—whether
it governs voter qualifications, candidate selection, or the
voting process—we use the approach set out in Burdick v.
Takushi, 504 U.S. 428 (1992). This calls for application of
a deferential “important regulatory interests” standard for
nonsevere, nondiscriminatory restrictions, reserving strict
2 CRAWFORD v. MARION COUNTY ELECTION BD.
SCALIA, J., concurring in judgment
scrutiny for laws that severely restrict the right to vote.
Id., at 433–434 (internal quotation marks omitted). The
lead opinion resists the import of Burdick by characteriz-
ing it as simply adopting “the balancing approach” of
Anderson v. Celebrezze, 460 U.S. 780 (1983) (majority
opinion of STEVENS, J.). See ante, at 6; see also ante, at 6–
7, n. 8. Although Burdick liberally quoted Anderson,
Burdick forged Anderson’s amorphous “flexible standard”
into something resembling an administrable rule. See
Burdick, supra, at 434. Since Burdick, we have repeatedly
reaffirmed the primacy of its two-track approach. See
Timmons v. Twin Cities Area New Party, 520 U.S. 351,
358 (1997); Clingman v. Beaver, 544 U.S. 581, 586–587
(2005). “[S]trict scrutiny is appropriate only if the burden
is severe.” Id., at 592. Thus, the first step is to decide
whether a challenged law severely burdens the right to
vote. Ordinary and widespread burdens, such as those
requiring “nominal effort” of everyone, are not severe. See
id., at 591, 593–597. Burdens are severe if they go beyond
the merely inconvenient. See Storer v. Brown, 415 U.S.
724, 728–729 (1974) (characterizing the law in Williams v.
Rhodes, 393 U.S. 23 (1968), as “severe” because it was “so
burdensome” as to be “ ‘virtually impossible’ ” to satisfy).
Of course, we have to identify a burden before we can
weigh it. The Indiana law affects different voters differ-
ently, ante, at 14–16, but what petitioners view as the
law’s several light and heavy burdens are no more than
the different impacts of the single burden that the law
uniformly imposes on all voters. To vote in person in
Indiana, everyone must have and present a photo identifi-
cation that can be obtained for free. The State draws no
classifications, let alone discriminatory ones, except to
establish optional absentee and provisional balloting for
certain poor, elderly, and institutionalized voters and for
religious objectors. Nor are voters who already have photo
identifications exempted from the burden, since those
Cite as: 553 U. S. ____ (2008) 3
SCALIA, J., concurring in judgment
voters must maintain the accuracy of the information
displayed on the identifications, renew them before they
expire, and replace them if they are lost.
The Indiana photo-identification law is a generally
applicable, nondiscriminatory voting regulation, and our
precedents refute the view that individual impacts are
relevant to determining the severity of the burden it im-
poses. In the course of concluding that the Hawaii laws at
issue in Burdick “impose[d] only a limited burden on
voters’ rights to make free choices and to associate politi-
cally through the vote,” 504 U. S., at 439, we considered
the laws and their reasonably foreseeable effect on voters
generally. See id., at 436–437. We did not discuss
whether the laws had a severe effect on Mr. Burdick’s own
right to vote, given his particular circumstances. That
was essentially the approach of the Burdick dissenters,
who would have applied strict scrutiny to the laws because
of their effect on “some voters.” See id., at 446 (KENNEDY,
J., dissenting); see also id., at 448 (“The majority’s analy-
sis ignores the inevitable and significant burden a write-in
ban imposes upon some individual voters . . . .” (emphasis
added)). Subsequent cases have followed Burdick’s gener-
alized review of nondiscriminatory election laws. See, e.g.,
Timmons, supra, at 361–362; Clingman, supra, at 590–
591, 592–593. Indeed, Clingman’s holding that burdens
are not severe if they are ordinary and widespread would
be rendered meaningless if a single plaintiff could claim a
severe burden.
Not all of our decisions predating Burdick addressed
whether a challenged voting regulation severely burdened
the right to vote, but when we began to grapple with the
magnitude of burdens, we did so categorically and did not
consider the peculiar circumstances of individual voters or
candidates. See, e.g., Jenness v. Fortson, 403 U.S. 431,
438–441 (1971). Thus, in Rosario v. Rockefeller, 410 U.S.
752 (1973), we did not link the State’s interest in inhibit-
4 CRAWFORD v. MARION COUNTY ELECTION BD.
SCALIA, J., concurring in judgment
ing party raiding with the petitioners’ own circumstances.
See id., at 760–762. And in Storer v. Brown, supra, we
observed that the severity of the burden of a regulation
should be measured according to its “nature, extent, and
likely impact.” Id., at 738 (emphasis added). We therefore
instructed the District Court to decide on remand whether
“a reasonably diligent independent candidate [could] be
expected to satisfy the signature requirements, or will it
be only rarely that the unaffiliated candidate will succeed
in getting on the ballot?” Id., at 742 (emphasis added).
Notably, we did not suggest that the District Court should
consider whether one of the petitioners would actually find
it more difficult than a reasonably diligent candidate to
obtain the required signatures. What mattered was the
general assessment of the burden.
Insofar as our election-regulation cases rest upon the
requirements of the Fourteenth Amendment, see Ander-
son, supra, at 786, n. 7, weighing the burden of a nondis-
criminatory voting law upon each voter and concomitantly
requiring exceptions for vulnerable voters would effec-
tively turn back decades of equal-protection jurisprudence.
A voter complaining about such a law’s effect on him has
no valid equal-protection claim because, without proof of
discriminatory intent, a generally applicable law with
disparate impact is not unconstitutional. See, e.g., Wash-
ington v. Davis, 426 U.S. 229, 248 (1976). The Fourteenth
Amendment does not regard neutral laws as invidious
ones, even when their burdens purportedly fall dispropor-
tionately on a protected class. A fortiori it does not do so
when, as here, the classes complaining of disparate impact
are not even protected.* See Harris v. McRae, 448 U. S.
——————
* A number of our early right-to-vote decisions, purporting to rely
upon the Equal Protection Clause, strictly scrutinized nondiscrimina-
tory voting laws requiring the payment of fees. See, e.g., Harper v.
Virginia Bd. of Elections, 383 U.S. 663, 670 (1966) (poll tax); Bullock v.
Carter, 405 U.S. 134, 145 (1972) (ballot-access fee); Lubin v. Panish,
Cite as: 553 U. S. ____ (2008) 5
SCALIA, J., concurring in judgment
297, 323, and n. 26 (1980) (poverty); Cleburne v. Cleburne
Living Center, Inc., 473 U.S. 432, 442 (1985) (disability);
Gregory v. Ashcroft, 501 U.S. 452, 473 (1991) (age); cf.
Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U.S. 872, 878–879 (1990) (First Amendment
does not require exceptions for religious objectors to neu-
tral rules of general applicability).
Even if I thought that stare decisis did not foreclose
adopting an individual-focused approach, I would reject it
as an original matter. This is an area where the dos and
don’ts need to be known in advance of the election, and
voter-by-voter examination of the burdens of voting regu-
lations would prove especially disruptive. A case-by-case
approach naturally encourages constant litigation. Very
few new election regulations improve everyone’s lot, so the
potential allegations of severe burden are endless. A State
reducing the number of polling places would be open to the
complaint it has violated the rights of disabled voters who
live near the closed stations. Indeed, it may even be the
case that some laws already on the books are especially
burdensome for some voters, and one can predict lawsuits
demanding that a State adopt voting over the Internet or
expand absentee balloting.
That sort of detailed judicial supervision of the election
process would flout the Constitution’s express commit-
ment of the task to the States. See Art. I, §4. It is for
state legislatures to weigh the costs and benefits of possi-
ble changes to their election codes, and their judgment
must prevail unless it imposes a severe and unjustified
overall burden upon the right to vote, or is intended to
——————
415 U.S. 709, 716–719 (1974) (ballot-access fee). To the extent those
decisions continue to stand for a principle that Burdick v. Takushi, 504
U.S. 428 (1992), does not already encompass, it suffices to note that we
have never held that legislatures must calibrate all election laws, even
those totally unrelated to money, for their impacts on poor voters or
must otherwise accommodate wealth disparities.
6 CRAWFORD v. MARION COUNTY ELECTION BD.
SCALIA, J., concurring in judgment
disadvantage a particular class. Judicial review of their
handiwork must apply an objective, uniform standard that
will enable them to determine, ex ante, whether the bur-
den they impose is too severe.
The lead opinion’s record-based resolution of these
cases, which neither rejects nor embraces the rule of our
precedents, provides no certainty, and will embolden
litigants who surmise that our precedents have been
abandoned. There is no good reason to prefer that course.
* * *
The universally applicable requirements of Indiana’s
voter-identification law are eminently reasonable. The
burden of acquiring, possessing, and showing a free photo
identification is simply not severe, because it does not
“even represent a significant increase over the usual bur-
dens of voting.” Ante, at 15. And the State’s interests,
ante, at 7–13, are sufficient to sustain that minimal bur-
den. That should end the matter. That the State accom-
modates some voters by permitting (not requiring) the
casting of absentee or provisional ballots, is an indul-
gence—not a constitutional imperative that falls short of
what is required.
Cite as: 553 U. S. ____ (2008) 1
SOUTER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 07–21 and 07–25
_________________
WILLIAM CRAWFORD, ET AL., PETITIONERS
07–21 v.
MARION COUNTY ELECTION BOARD ET AL.
INDIANA DEMOCRATIC PARTY, ET AL., PETITIONERS
07–25 v.
TODD ROKITA, INDIANA SECRETARY OF STATE,
ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[April 28, 2008]
JUSTICE SOUTER, with whom JUSTICE GINSBURG joins,
dissenting.
Indiana’s “Voter ID Law”1 threatens to impose nontriv-
ial burdens on the voting right of tens of thousands of the
State’s citizens, see ante, at 14–15 (lead opinion), and a
significant percentage of those individuals are likely to be
deterred from voting, see ante, at 15–16. The statute is
unconstitutional under the balancing standard of Burdick
v. Takushi, 504 U.S. 428 (1992): a State may not burden
the right to vote merely by invoking abstract interests, be
they legitimate, see ante, at 7–13, or even compelling, but
must make a particular, factual showing that threats to
its interests outweigh the particular impediments it has
imposed. The State has made no such justification here,
and as to some aspects of its law, it has hardly even tried.
I therefore respectfully dissent from the Court’s judgment
——————
1 Senate Enrolled Act No. 483, 2005 Ind. Acts p. 2005.
2 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
sustaining the statute.2
I
Voting-rights cases raise two competing interests, the
one side being the fundamental right to vote. See Burdick,
supra, at 433 (“It is beyond cavil that ‘voting is of the most
fundamental significance under our constitutional struc-
ture’ ” (quoting Illinois Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173, 184 (1979)); see also Purcell v. Gon-
zalez, 549 U.S. 1, 3–4 (2006) (per curiam); Dunn v. Blum-
stein, 405 U.S. 330, 336 (1972); Reynolds v. Sims, 377
U.S. 533, 561–562 (1964); Yick Wo v. Hopkins, 118 U.S.
356, 370 (1886). The Judiciary is obliged to train a skepti-
cal eye on any qualification of that right. See Reynolds,
supra, at 562 (“Especially since the right to exercise the
franchise in a free and unimpaired manner is preservative
of other basic civil and political rights, any alleged in-
fringement of the right of citizens to vote must be carefully
and meticulously scrutinized”).
As against the unfettered right, however, lies the
“[c]ommon sense, as well as constitutional law . . . that
government must play an active role in structuring elec-
tions; ‘as a practical matter, there must be a substantial
regulation of elections if they are to be fair and honest and
if some sort of order, rather than chaos, is to accompany
the democratic processes.’ ” Burdick, supra, at 433 (quot-
ing Storer v. Brown, 415 U.S. 724, 730 (1974)); see also
Burdick, supra, at 433 (“Election laws will invariably
impose some burden upon individual voters”).
Given the legitimacy of interests on both sides, we have
avoided pre-set levels of scrutiny in favor of a sliding-scale
balancing analysis: the scrutiny varies with the effect of
the regulation at issue. And whatever the claim, the
——————
2 I agree with the lead opinion that the petitioners in No. 07–25 have
standing and that we therefore need not determine whether the re-
maining petitioners also have standing. See ante, at 5, n. 7.
Cite as: 553 U. S. ____ (2008) 3
SOUTER, J., dissenting
Court has long made a careful, ground-level appraisal both
of the practical burdens on the right to vote and of the
State’s reasons for imposing those precise burdens. Thus,
in Burdick:
“A court considering [such] a challenge . . . must
weigh ‘the character and magnitude of the asserted
injury to the rights protected by the First and Four-
teenth Amendments that the plaintiff seeks to vindi-
cate’ against ‘the precise interests put forward by the
State as justifications for the burden imposed by its
rule,’ taking into consideration ‘the extent to which
those interests make it necessary to burden the plain-
tiff’s rights.’ ” 504 U. S., at 434 (quoting Anderson v.
Celebrezze, 460 U.S. 780, 789 (1983)).
The lead opinion does not disavow these basic principles.
See ante, at 6–7 (discussing Burdick); see also ante, at 7
(“However slight [the] burden may appear, . . . it must be
justified by relevant and legitimate state interests suffi-
ciently weighty to justify the limitation” (internal quota-
tion marks omitted)). But I think it does not insist enough
on the hard facts that our standard of review demands.
II
Under Burdick, “the rigorousness of our inquiry into the
propriety of a state election law depends upon the extent
to which a challenged regulation burdens First and Four-
teenth Amendment rights,” 504 U. S., at 434, upon an
assessment of the “character and magnitude of the as-
serted [threatened] injury,” ibid. (quoting Anderson, su-
pra, at 789), and an estimate of the number of voters
likely to be affected.
A
The first set of burdens shown in these cases is the
travel costs and fees necessary to get one of the limited
variety of federal or state photo identifications needed to
4 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
cast a regular ballot under the Voter ID Law.3 The travel
is required for the personal visit to a license branch of the
Indiana Bureau of Motor Vehicles (BMV), which is de-
manded of anyone applying for a driver’s license or non-
driver photo identification. See Indiana Democratic Party
v. Rokita, 458 F. Supp. 2d 775, 791 (SD Ind. 2006). The
need to travel to a BMV branch will affect voters according
to their circumstances, with the average person probably
viewing it as nothing more than an inconvenience. Poor,
old, and disabled voters who do not drive a car, however,
may find the trip prohibitive,4 witness the fact that the
——————
3 Under Indiana’s law, an ID does not qualify as proof of identification
unless it “satisfies all [of] the following”:
“(1) The document shows the name of the individual to whom the
document was issued, and the name conforms to the name in the
individual’s voter registration record.
“(2) The document shows a photograph of the individual to whom the
document was issued.
“(3) The document includes an expiration date, and the document:
“(A) is not expired; or
“(B) expired after the date of the most recent general election.
“(4) The document was issued by the United States or the state of
Indiana.” Ind. Code Ann. §3–5–2–40.5 (West 2006).
4 The State asserts that the elderly and disabled are adequately ac-
commodated through their option to cast absentee ballots, and so any
burdens on them are irrelevant. See Brief for Respondents in No. 07–
25, p. 41. But as petitioners’ amici AARP and the National Senior
Citizens Law Center point out, there are crucial differences between
the absentee and regular ballot. Brief for AARP et al. as Amici Curiae
12–16. Voting by absentee ballot leaves an individual without the
possibility of receiving assistance from poll workers, and thus increases
the likelihood of confusion and error. More seriously, as the Supreme
Court of Indiana has recognized, Indiana law “treats absentee voters
differently from the way it treats Election Day voters,” in the important
sense that “an absentee ballot may not be recounted in situations
where clerical error by an election officer rendered it invalid.” Horse-
man v. Keller, 841 N.E.2d 164, 171 (2006). The State itself notes that
“election officials routinely reject absentee ballots on suspicion of
forgery.” Brief for Respondents in No. 07–25, p. 62. The record indi-
cates that voters in Indiana are not unaware of these risks. One
Cite as: 553 U. S. ____ (2008) 5
SOUTER, J., dissenting
BMV has far fewer license branches in each county than
there are voting precincts.5 Marion County, for example,
has over 900 active voting precincts, see Brief for Respon-
dents in No. 07–21, p. 4,6 yet only 12 BMV license
branches;7 in Lake County, there are 565 active voting
precincts, see n. 6, supra, to match up with only 8 BMV
locations;8 and Allen County, with 309 active voting pre-
cincts, see ibid., has only 3 BMV license branches.9 The
same pattern holds in counties with smaller populations.
Brown County has 12 active voter precincts, see ibid., and
only one BMV office;10 while there were 18 polling places
available in Fayette County’s 2007 municipal primary,11
——————
elderly affiant in the District Court testified: “I don’t trust [the absen-
tee] system. . . . Because a lot of soldiers vote like that and their votes
wasn’t counted in the last election according to what I read, absentee.”
App. 209 (deposition of David Harrison).
It is one thing (and a commendable thing) for the State to make
absentee voting available to the elderly and disabled; but it is quite
another to suggest that, because the more convenient but less reliable
absentee ballot is available, the State may freely deprive the elderly
and disabled of the option of voting in person.
5 Under Indiana law, county executives must locate a polling place
within five miles of the closest boundary of each voting precinct, and,
with limited exceptions, no precinct may cover more than 1,200 active
voters at the time it is established. See Brief for Respondents in No.
07–21, p. 3 (citing Ind. Code Ann. §§3–11–8–3(b), 3–11–1.5–3). The
result is that the number of polling places tends to track the number of
voting precincts in a county. In Henry County, for example, there are
42 active precincts, see n. 6, infra, and 42 polling places have been
approved for the 2008 elections, see n. 13, infra.
6 See also Count of Active Precincts by County, online at
http://www.in.gov/sos/pdfs/Precincts_by_County_and_State_022706.pdf
(all Internet materials as visited Apr. 21, 2008, and available in Clerk
of Court’s case file).
7 See Marion County License Branches, http://www.in.gov/bmv/
3134.htm.
8 See Lake County, http://www.in.gov/bmv/3150.htm.
9 See Allen County, http://www.in.gov/bmv/2954.htm.
10 See Brown County, http://www.in.gov/bmv/3302.htm.
11 See http://www.co.fayette.in.us/2007%20polling_locations_munic.
6 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
there was only 1 BMV license branch;12 and Henry
County, with 42 polling places approved for 2008 elec-
tions,13 has only 1 BMV office.
The burden of traveling to a more distant BMV office
rather than a conveniently located polling place is proba-
bly serious for many of the individuals who lack photo
identification.14 They almost certainly will not own cars,
see Brief for Current and Former State Secretaries of
State as Amici Curiae 11, and public transportation in
Indiana is fairly limited. According to a report published
by Indiana’s Department of Transportation in August
2007, 21 of Indiana’s 92 counties have no public transpor-
tation system at all,15 and as of 2000, nearly 1 in every 10
——————
htm.
12 See Fayette County, http://www.in.gov/bmv/3246.htm.
13 See News Release, Henry County, Indiana, Polling Places Approved
for the 2008 Elections, http://www.henryco.net/cm/node/52.
14 The travel burdens might, in the future, be reduced to some extent
by Indiana’s commendable “BMV2You” mobile license branch, which
will travel across the State for an average of three days a week, and
provide BMV services (including ID services). See http://
www.in.gov/bmv/3554.htm. The program does not count in my analy-
sis, however, because the program was only recently opened in August
2007, see Indiana BMV Opens License Branch at State Fair,
http://www.in.gov/newsroom.htm?detailContent=93_10400.htm, and its
long-term service schedule has yet to be determined.
15 Indiana Public Transit: Annual Report 2006, p. 29, http://
www.in.gov/indot/files/INDOT_2006.pdf (hereinafter Annual Report).
The 21 counties with no public transportation, according to the study,
are: Adams, Blackford, Brown, Carroll, Clay, De Kalb, Gibson,
Jennings, Lagrange, Parke, Perry, Posey, Putnam, Rush, Spencer,
Steuben, Tipton, Vermillion, Warren, Warrick, and Whitley Counties.
See ibid.
A Website of the American Public Transportation Association, which
compiles public transit information across the States, confirms that
each of those 21 counties lacks any public transportation offerings, and
in fact adds another 13 counties to this category: Boone, Decatur,
Fayette, Fulton, Hancock, Hendricks, Huntington, Miami, Morgan,
Noble, Pike, Shelby, and Wells. See Transit Systems in Indiana,
http://www.publictransportation.org/systems/state.asp?state=IN#A44.
Cite as: 553 U. S. ____ (2008) 7
SOUTER, J., dissenting
voters lived within 1 of these 21 counties.16 Among the
counties with some public system, 21 provide service only
within certain cities, and 32 others restrict public trans-
portation to regional county service, leaving only 18 that
offer countywide public transportation, see n. 15, supra.
State officials recognize the effect that travel costs can
have on voter turnout, as in Marion County, for example,
where efforts have been made to “establis[h] most polling
places in locations even more convenient than the statu-
tory minimum,” in order to “provid[e] for neighborhood
voting.” Brief for Respondents in No. 07–21, pp. 3–4.
Although making voters travel farther than what is
convenient for most and possible for some does not amount
to a “severe” burden under Burdick, that is no reason to
ignore the burden altogether. It translates into an obvious
economic cost (whether in work time lost, or getting and
paying for transportation) that an Indiana voter must bear
to obtain an ID.
For those voters who can afford the roundtrip, a second
financial hurdle appears: in order to get photo identifica-
tion for the first time, they need to present “ ‘a birth cer-
tificate, a certificate of naturalization, U. S. veterans
photo identification, U. S. military photo identification, or
a U. S. passport.’ ” Ante, at 14, n. 16 (lead opinion) (quot-
ing Ind. Admin. Code, tit. 140, §7–4–3 (2008)). As the lead
opinion says, the two most common of these documents
come at a price: Indiana counties charge anywhere from
$3 to $12 for a birth certificate (and in some other States
the fee is significantly higher), see ante, at 14, n. 16, and
——————
The discrepancy appears to arise, in part, from the fact that the Ameri-
can Public Transportation Association has not counted demand re-
sponse systems that have been established in at least 6 of these 13
counties. See Annual Report 36, 50, 56, 96, 110, 144.
16 In 2000, approximately 9% of Indiana’s population lived within 1 of
these 21 counties. See County and City Extra: Special Decennial
Census Edition 169, 176 (D. Gaquin & K. DeBrandt eds. 2002).
8 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
that same price must usually be paid for a first-time pass-
port, since a birth certificate is required to prove U. S.
citizenship by birth. The total fees for a passport, more-
over, are up to about $100.17 So most voters must pay at
least one fee to get the ID necessary to cast a regular
ballot.18 As with the travel costs, these fees are far from
shocking on their face, but in the Burdick analysis it
matters that both the travel costs and the fees are dispro-
portionately heavy for, and thus disproportionately likely
to deter, the poor, the old, and the immobile.
B
To be sure, Indiana has a provisional-ballot exception to
the ID requirement for individuals the State considers
“indigent”19 as well as those with religious objections to
being photographed, see ante, at 15 (lead opinion), and
this sort of exception could in theory provide a way around
the costs of procuring an ID. But Indiana’s chosen excep-
tion does not amount to much relief.
——————
17 See Department of State, How to Apply in Person for a Passport,
http://travel.state.gov/passport/get/first/first_830.html; Department of
State, Passport Fees (Feb. 1, 2008), http://travel.state.gov/passport/
get/fees/fees_837.html (total fees of $100 for a passport book and $45 for
a passport card for individuals 16 and older).
18 The lead opinion notes that “the record does not provide even a
rough estimate of how many indigent voters lack copies of their birth
certificates.” Ante, at 19, n. 20. But the record discloses no reason to
think that any appreciable number of poor voters would need birth
certificates absent the Voter ID Law, and no reason to believe that poor
people would spend money to get them if they did not need them.
19 To vote by provisional ballot, an individual must (at the circuit
court clerk’s office) sign an affidavit affirming that she is “indigent” and
“unable to obtain proof of identification without payment of a fee.” Ind.
Code Ann. §3–11.7–5–2.5(c)(2)(A). Indiana law does not define the key
terms “indigent” or “unable,” but I will assume for present purposes
that the Indiana Supreme Court will eventually construe these terms
broadly, so that the income threshold for indigency is at least at the
federal poverty level, and so that the exception covers even individuals
who are facing only short-term financial difficulties.
Cite as: 553 U. S. ____ (2008) 9
SOUTER, J., dissenting
The law allows these voters who lack the necessary ID
to sign the poll book and cast a provisional ballot. See 458
F. Supp. 2d, at 786 (citing Ind. Code Ann. §3–11–8–25.1
(West Supp. 2007)). As the lead opinion recognizes,
though, ante, at 15, that is only the first step; to have the
provisional ballot counted, a voter must then appear in
person before the circuit court clerk or county election
board within 10 days of the election, to sign an affidavit
attesting to indigency or religious objection to being pho-
tographed (or to present an ID at that point),20 see 458
F. Supp. 2d, at 786. Unlike the trip to the BMV (which,
assuming things go smoothly, needs to be made only once
every four years for renewal of nondriver photo identifica-
tion, see id.), this one must be taken every time a poor
person or religious objector wishes to vote, because the
State does not allow an affidavit to count in successive
elections. And unlike the trip to the BMV (which at least
has a handful of license branches in the more populous
counties), a county has only one county seat. Forcing
these people to travel to the county seat every time they
try to vote is particularly onerous for the reason noted
already, that most counties in Indiana either lack public
transportation or offer only limited coverage. See supra,
at 6–7.
That the need to travel to the county seat each election
amounts to a high hurdle is shown in the results of the
2007 municipal elections in Marion County, to which
Indiana’s Voter ID Law applied. Thirty-four provisional
ballots were cast, but only two provisional voters made it
——————
20 Indiana law allows voters to cast a provisional ballot at the county
clerk’s office starting 29 days prior to election day until noon of the day
prior to election day, see Ind. Code Ann. §3–11.7–5–2.5, and this might
enable some voters to make only one burdensome trip to the county
seat. But for the voters who show up at the polls to vote and are there
told that they lack the photo identification needed to cast a regular
ballot, the Voter ID Law effectively forces them to make two trips.
10 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
to the County Clerk’s Office within the 10 days. See Brief
for Respondents in No. 07–21, pp. 8–9. All 34 of these
aspiring voters appeared at the appropriate precinct; 33 of
them provided a signature, and every signature matched
the one on file; and 26 of the 32 voters whose ballots were
not counted had a history of voting in Marion County
elections. See id., at 9.
All of this suggests that provisional ballots do not obvi-
ate the burdens of getting photo identification. And even
if that were not so, the provisional-ballot option would be
inadequate for a further reason: the indigency exception
by definition offers no relief to those voters who do not
consider themselves (or would not be considered) indigent
but as a practical matter would find it hard, for nonfinan-
cial reasons, to get the required ID (most obviously the
disabled).
C
Indiana’s Voter ID Law thus threatens to impose serious
burdens on the voting right, even if not “severe” ones, and
the next question under Burdick is whether the number of
individuals likely to be affected is significant as well.
Record evidence and facts open to judicial notice answer
yes.
Although the District Court found that petitioners failed
to offer any reliable empirical study of numbers of voters
affected, see ante, at 17 (lead opinion),21 we may accept
that court’s rough calculation that 43,000 voting-age
residents lack the kind of identification card required by
Indiana’s law. See 458 F. Supp. 2d, at 807. The District
——————
21 Much like petitioners’ statistician, the BMV “has not been able to
determine the approximate number of Indiana residents of voting age
who are without an Indiana driver’s license or identification card,” 458
F. Supp. 2d 775, 791 (SD Ind. 2006), but the BMV does acknowledge
“that there are persons who do not currently have [the required ID] and
who are, or who will be, eligible to vote at the next election,” ibid.
Cite as: 553 U. S. ____ (2008) 11
SOUTER, J., dissenting
Court made that estimate by comparing BMV records
reproduced in petitioners’ statistician’s report with U. S.
Census Bureau figures for Indiana’s voting-age population
in 2004, see ibid., and the State does not argue that these
raw data are unreliable.
The State, in fact, shows no discomfort with the District
Court’s finding that an “estimated 43,000 individuals”
(about 1% of the State’s voting-age population) lack a
qualifying ID. Brief for Respondents in No. 07–25, p. 25.
If the State’s willingness to take that number is surpris-
ing, it may be less so in light of the District Court’s obser-
vation that “several factors . . . suggest the percentage of
Indiana’s voting age population with photo identification
is actually lower than 99%,” 458 F. Supp. 2d, at 807, n.
43,22 a suggestion in line with national surveys showing
——————
22 The District Court explained:
“[O]ur simple comparison of raw numbers does not take into account:
individuals who have died but whose Indiana driver’s license or identi-
fication cards have not expired; individuals who have moved outside
the state and no longer consider themselves Indiana residents but who
still retain a valid Indiana license or identification card; individuals
who have moved into Indiana and now consider themselves Indiana
residents but have not yet obtained an Indiana license or identification;
and individuals, such as students, who are residing in Indiana tempo-
rarily, are registered to vote in another state, but have obtained an
Indiana license or identification.” Id., at 807, n. 43.
The District Court also identified three factors that, in its view,
might require deductions of the 43,000 figure. First, the District Court
noted that BMV records do not cover all forms of identification that
may be used to vote under the Voter ID Law (e.g., federal photo identi-
fication, such as a passport). This is a valid consideration, but is
unlikely to overcome the additions that must be made for the various
factors listed above. Second, the court noted that the BMV records do
not account for the exceptions to the photo identification requirement
(such as the indigency and absentee-ballot exceptions). This factor does
not warrant a deduction of the 43,000 number because, as I have
argued, the indigency exception imposes serious burdens of its own, see
supra, at 8–10, and the absentee-ballot exception is not a wholly
adequate substitute for voting in person, see n. 4, supra. Finally, the
12 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
roughly 6–10% of voting-age Americans without a state-
issued photo-identification card. See Brief for Petitioners
in No. 07–21, pp. 39–40, n. 17 (citing National Commis-
sion on Election Reform, To Assure Pride and Confidence:
Task Force Reports, ch. VI: Verification of Identity, p. 4
(Aug. 2001), http://webstorage3.mcpa.virginia.edu/com-
misions/comm_2001_taskforce.pdf). We have been offered
no reason to think that Indiana does a substantially better
job of distributing IDs than other States.23
So a fair reading of the data supports the District
Court’s finding that around 43,000 Indiana residents lack
the needed identification, and will bear the burdens the
law imposes. To be sure, the 43,000 figure has to be dis-
counted to some extent, residents of certain nursing homes
being exempted from the photo identification requirement.
458 F. Supp. 2d, at 786. But the State does not suggest
that this narrow exception could possibly reduce 43,000 to
an insubstantial number.24
——————
District Court noted that many individuals are not registered to vote.
For reasons I lay out in note 24, infra, I am not convinced that this fact
is relevant at all.
23 Although the lead opinion expresses confidence that the percentage
of voters without the necessary photo ID will steadily decrease, see
ante, at 4, n. 6, and suggests that the number may already have
dropped, see ante, at 18, n. 20, there is reason to be less sanguine. See
ACLU Sues To Halt License Revocation, Fort Wayne J. Gazette, Feb. 9,
2008, p. 3C (“The American Civil Liberties Union is suing the state to
prevent the possible revocation of up to 56,000 driver’s licenses that
don’t match information in a Social Security database. Many of the
mismatches were created by typographical errors or by people getting
married and changing their last names, the [BMV] said last week when
it announced it had sent warning letters to about 206,000 people in
Indiana”); see also Dits, Court Date Set for Bid To Stop BMV, South
Bend Tribune, Feb. 21, 2008; Who To Blame in Name Game? Many
Caught in Name Game; Merging BMV, Social Security Databases
Forcing Many To Hire Lawyers, The Post-Tribune, Jan. 8, 2008, p. A5;
Snelling, Name Issue Blocks License, Merrillville Post-Tribune, Jan. 7,
2008, p. A6.
24 The State does imply that we should further discount the 43,000
Cite as: 553 U. S. ____ (2008) 13
SOUTER, J., dissenting
The upshot is this. Tens of thousands of voting-age
residents lack the necessary photo identification. A large
proportion of them are likely to be in bad shape economi-
cally, see 472 F.3d 949, 951 (CA7 2007) (“No doubt most
people who don’t have photo ID are low on the economic
ladder”); cf. Bullock v. Carter, 405 U.S. 134, 144 (1972)
(“[W]e would ignore reality were we not to recognize that
this system falls with unequal weight on voters . . . accord-
ing to their economic status”).25 The Voter ID Law places
hurdles in the way of either getting an ID or of voting
provisionally, and they translate into nontrivial economic
costs. There is accordingly no reason to doubt that a sig-
nificant number of state residents will be discouraged or
——————
estimate to exclude citizens who are not registered to vote, or who are
registered but not planning to vote. See Brief for Respondents in No.
07–25, p. 25; see also ante, at 17 (lead opinion) (“[T]he evidence in the
record does not provide us with the number of registered voters without
photo identification”). But that argument is flatly contradicted by this
Court’s settled precedent. As our cases have recognized, disfranchise-
ment is disfranchisement, whether or not the disfranchised voter would
have voted if given the choice. That is why in Dunn v. Blumstein, 405
U.S. 330 (1972), the Court did not ask whether any significant number
of individuals deprived of the right to vote by durational residence
requirements would actually have chosen to vote. And in Harper v.
Virginia Bd. of Elections, 383 U.S. 663 (1966), the Court did not pause
to consider whether any of the qualified voters deterred by the $1.50
poll tax would have opted to vote if there had been no fee. Our cases
make clear that the Constitution protects an individual’s ability to vote,
not merely his decision to do so.
25 Studies in other States suggest that the burdens of an ID require-
ment may also fall disproportionately upon racial minorities. See
Overton, Voter Identification, 105 Mich. L. Rev. 631, 659 (2007) (“In
1994, the U. S. Department of Justice found that African-Americans in
Louisiana were four to five times less likely than white residents to
have government-sanctioned photo identification”); id., at 659–660
(describing June 2005 study by the Employment and Training Institute
at the University of Wisconsin-Milwaukee, which found that while 17%
of voting-age whites lacked a valid driver’s license, 55% of black males
and 49% of black females were unlicensed, and 46% of Latino males
and 59% of Latino females were similarly unlicensed).
14 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
disabled from voting. Cf. 458 F. Supp. 2d, at 823 (“We do
not doubt that such individuals exist somewhere, even
though Plaintiffs were unable to locate them”); 472 F. 3d,
at 952 (“No doubt there are at least a few [whom the law
will deter from voting] in Indiana . . .”); see also ante, at 15
(lead opinion).
Petitioners, to be sure, failed to nail down precisely how
great the cohort of discouraged and totally deterred voters
will be, but empirical precision beyond the foregoing num-
bers has never been demanded for raising a voting-rights
claim. Cf. Washington State Grange v. Washington State
Republican Party, 552 U.S. ___, ___ (2008) (ROBERTS,
C. J., concurring) (slip op., at 4) (“Nothing in my analysis
requires the parties to produce studies regarding voter
perceptions on this score”); Dunn v. Blumstein, 405 U.S.
330, 335, n. 5 (1972) (“[I]t would be difficult to determine
precisely how many would-be voters throughout the coun-
try cannot vote because of durational residence require-
ments”); Bullock, supra, at 144 (taking account of “the
obvious likelihood” that candidate filing fees would “fall
more heavily on the less affluent segment of the commu-
nity, whose favorites may be unable to pay the large
costs”). While of course it would greatly aid a plaintiff to
establish his claims beyond mathematical doubt, he does
enough to show that serious burdens are likely.
Thus, petitioners’ case is clearly strong enough to
prompt more than a cursory examination of the State’s
asserted interests. And the fact that Indiana’s photo
identification requirement is one of the most restrictive in
the country, see Brief for Current and Former State Secre-
taries of State as Amici Curiae 27–30 (compiling state
voter-identification statutes); see also Brief for Texas et al.
as Amici Curiae 10–13 (same),26 makes a critical examina-
——————
26 Unlike the Help America Vote Act of 2002, 116 Stat. 1666, 42
U.S. C. §5301 et seq. (2000 ed., Supp. V), which generally requires
Cite as: 553 U. S. ____ (2008) 15
SOUTER, J., dissenting
tion of the State’s claims all the more in order. Cf. Ran-
——————
proof of identification but allows for a variety of documents to qualify,
see ante, at 8–9 (lead opinion), Indiana accepts only limited forms of
federally issued or state-issued photo identification, see n. 3, supra, and
does not allow individuals lacking the required identification to cast a
regular ballot at the polls. Only one other State, Georgia, currently
restricts voters to the narrow forms of government-issued photo identi-
fication. See Ga. Code Ann. §21–2–417 (Supp. 2007). But a birth
certificate is not needed to get a Georgia voter identification card. See
Ga. Code Ann. §21–2–417.1 (Supp. 2007); Ga. Comp. Rules & Regs.,
Rule 183–1–20.01 (2006).
Missouri’s Legislature passed a restrictive photo identification law
comparable to Indiana’s, but the Missouri Supreme Court struck it
down as violative of the state constitution. Weinschenk v. State, 203
S.W.3d 201 (2006) (per curiam). Florida requires photo identification,
but permits the use of several forms, including a debit or credit card;
military identification; student identification; retirement center identi-
fication; neighborhood center identification; and public assistance
identification. See Fla. Stat. Ann. §101.043(1) (West Supp. 2008).
Moreover, a Florida voter who lacks photo identification may cast a
provisional ballot, and that ballot will be counted so long as the signa-
ture on the ballot matches the one on the voter’s registration.
§§101.043(2), 101.048.
All other States that require identification at the polls either allow
voters to identify themselves using a variety of documents, see Ala.
Code §17–9–30 (2007); Alaska Stat. §15.15.225 (2006); Ariz. Rev. Stat.
Ann. §16–579 (West 2006); Ark. Code Ann. §7–5–305(a)(8) (2007); Colo.
Rev. Stat. §§1–1–104(19.5), 1–7–110 (2007); Ky. Rev. Stat. Ann.
§117.227 (Lexis 2004); Mont. Code Ann. §13–13–114 (2007); N. M. Stat.
Ann. §§1–1–24, 1–12–7.1, as amended by 2008 N. M. Laws ch. 59; §1–
12–8 (Cum. Supp. 2007); Ohio Rev. Code Ann. §§3503.16(B)(1), 3505.18
(Lexis Supp. 2007); S. C. Code Ann. §§7–5–125, 7–13–710 (Cum. Supp.
2007); Tenn. Code Ann. §2–7–112 (2003); Texas Elec. Code Ann.
§§63.001–63.009 (West 2003 and Supp. 2007); §63.0101 (West Supp.
2007); Wash. Rev. Code §29A.44.205 (2006), or allow voters lacking
identification to cast a regular ballot upon signing an affidavit (or
providing additional identifying information), see Conn. Gen. Stat. §9–
261 (2007); Del. Code Ann., Tit. 15, §4937 (2007); Haw. Rev. Stat. §11–
136 (2006 Cum. Supp.); La. Rev. Stat. Ann. §18:562 (West Supp. 2008);
Mich. Comp. Laws Ann. §168.523(1) (West Supp. 2007); N. D. Cent.
Code Ann. §16.1–05–07 (Lexis Supp. 2007); S. D. Codified Laws §§12–
18–6.1, 12–18–6.2 (2004); Va. Code Ann. §24.2–643 (Lexis 2006).
16 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
dall v. Sorrell, 548 U.S. 230, 253 (2006) (plurality opinion)
(citing as a “danger sig[n]” that “contribution limits are
substantially lower than . . . comparable limits in other
States,” and concluding that “[w]e consequently must
examine the record independently and carefully to deter-
mine whether [the] limits are ‘closely drawn’ to match the
State’s interests”); id., at 284, 288 (SOUTER, J., dissenting)
(finding that deference was appropriate on the reasoning
that limits were “consistent with limits set by the legisla-
tures of many other States, all of them with populations
larger than Vermont’s,” and that “[t]he Legislature of
Vermont evidently tried to account for the realities of
campaigning in Vermont”).
III
Because the lead opinion finds only “limited” burdens on
the right to vote, see ante, at 18, it avoids a hard look at
the State’s claimed interests. See ante, at 7–13. But
having found the Voter ID Law burdens far from trivial, I
have to make a rigorous assessment of “ ‘the precise inter-
ests put forward by the State as justifications for the
burden imposed by its rule,’ [and] ‘the extent to which
those interests make it necessary to burden the plaintiff’s
rights.’ ” Burdick, 504 U. S., at 434 (quoting Anderson,
460 U. S., at 789).
As this quotation from Burdick indicates, the interests
claimed to justify the regulatory scheme are subject to
discount in two distinct ways. First, the generalities
raised by the State have to be shaved down to the precise
“aspect[s of claimed interests] addressed by the law at
issue.” California Democratic Party v. Jones, 530 U.S.
567, 584 (2000) (emphasis omitted); see ibid. (scrutiny of
state interests “is not to be made in the abstract, by ask-
ing whether [the interests] are highly significant values;
but rather by asking whether the aspect of [those inter-
ests] addressed by the law at issue is highly significant”
Cite as: 553 U. S. ____ (2008) 17
SOUTER, J., dissenting
(emphasis in original)). And even if the State can show
particularized interests addressed by the law, those inter-
ests are subject to further discount depending on “the
extent to which [they] make it necessary to burden the
plaintiff’s rights.” Burdick, supra, at 434 (internal quota-
tion marks omitted).
As the lead opinion sees it, the State has offered four
related concerns that suffice to justify the Voter ID Law:
modernizing election procedures, combating voter fraud,
addressing the consequences of the State’s bloated voter
rolls, and protecting public confidence in the integrity of
the electoral process. See ante, at 7–13. On closer look,
however, it appears that the first two (which are really
just one) can claim modest weight at best, and the latter
two if anything weaken the State’s case.
A
The lead opinion’s discussion of the State’s reasons
begins with the State’s asserted interests in “election
modernization,” ante, at 8–10, and in combating voter
fraud, see ante, at 11–13. Although these are given sepa-
rate headings, any line drawn between them is unconvinc-
ing; as I understand it, the “effort to modernize elections,”
Brief for Respondents in No. 07–25, p. 12, is not for mod-
ernity’s sake, but to reach certain practical (or political)
objectives.27 In any event, if a proposed modernization
were in fact aimless, if it were put forward as change for
change’s sake, a State could not justify any appreciable
burden on the right to vote that might ensue; useless
technology has no constitutional value. And in fact that is
not the case here. The State says that it adopted the ID
law principally to combat voter fraud, and it is this claim,
——————
27 See generally R. Saltman, The History and Politics of Voting Tech-
nology: In Quest of Integrity and Public Confidence (2006) (tracing the
history of changes in methods of voting in the United States, and the
social and political considerations behind them).
18 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
not the slogan of “election modernization,” that warrants
attention.
1
There is no denying the abstract importance, the com-
pelling nature, of combating voter fraud. See Purcell, 549
U. S., at 4 (acknowledging “the State’s compelling interest
in preventing voter fraud”); cf. Eu v. San Francisco County
Democratic Central Comm., 489 U.S. 214, 231 (1989) (“A
State indisputably has a compelling interest in preserving
the integrity of its election process”). But it takes several
steps to get beyond the level of abstraction here.
To begin with, requiring a voter to show photo identifi-
cation before casting a regular ballot addresses only one
form of voter fraud: in-person voter impersonation. The
photo ID requirement leaves untouched the problems of
absentee-ballot fraud, which (unlike in-person voter im-
personation) is a documented problem in Indiana, see 458
F. Supp. 2d, at 793; of registered voters voting more than
once (but maintaining their own identities) in different
counties or in different States; of felons and other disquali-
fied individuals voting in their own names; of vote buying;
or, for that matter, of ballot-stuffing, ballot miscounting,
voter intimidation, or any other type of corruption on the
part of officials administering elections. See Brief for
Brennan Center for Justice et al. as Amici Curiae 7.
And even the State’s interest in deterring a voter from
showing up at the polls and claiming to be someone he is
not must, in turn, be discounted for the fact that the State
has not come across a single instance of in-person voter
impersonation fraud in all of Indiana’s history. See 458
F. Supp. 2d, at 792–793; see also ante, at 11–13 (lead
opinion). Neither the District Court nor the Indiana Gen-
eral Assembly that passed the Voter ID Law was given
any evidence whatsoever of in-person voter impersonation
fraud in the State. See 458 F. Supp. 2d, at 793. This
Cite as: 553 U. S. ____ (2008) 19
SOUTER, J., dissenting
absence of support is consistent with the experience of
several veteran poll watchers in Indiana, each of whom
submitted testimony in the District Court that he had
never witnessed an instance of attempted voter imper-
sonation fraud at the polls. Ibid. It is also consistent with
the dearth of evidence of in-person voter impersonation in
any other part of the country. See ante, at 11, n. 11 (lead
opinion) (conceding that there are at most “scattered
instances of in-person voter fraud”); see also Brief for
Brennan Center for Justice, supra, at 11–25, 25 (demon-
strating that “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”).28
The State responds to the want of evidence with the
assertion that in-person voter impersonation fraud is hard
to detect. But this is like saying the “man who wasn’t
there” is hard to spot,29 and to know whether difficulty in
detection accounts for the lack of evidence one at least has
to ask whether in-person voter impersonation is (or would
be) relatively harder to ferret out than other kinds of fraud
(e.g., by absentee ballot) which the State has had no trou-
ble documenting. The answer seems to be no; there is
reason to think that “impersonation of voters is . . . the
most likely type of fraud to be discovered.” U. S. Election
Assistance Commission, Election Crimes: An Initial Re-
——————
28 The lack of evidence of in-person voter impersonation fraud is not
for failure to search. See, e.g., Lipton & Urbina, In 5-Year Effort, Scant
Evidence of Voter Fraud, N. Y. Times, Apr. 12, 2007, p. A1 (“Five years
after the Bush Administration began a crackdown on voter fraud, the
Justice Department has turned up virtually no evidence of any organ-
ized effort to skew federal elections, according to court records and
interviews”).
29 “As I was going up the stair / I met a man who wasn’t there.” H.
Mearns, Antigonish, reprinted in Best Remembered Poems 107 (M.
Gardner ed. 1992).
20 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
view and Recommendations for Future Study 9 (Dec.
2006), http://www.eac.gov/clearinghouse/docs/reports-and-
surveys-2006electioncrimes.pdf/attachment_download/file
(hereinafter EAC Report). This is in part because an
individual who impersonates another at the polls commits
his fraud in the open, under the scrutiny of local poll
workers who may well recognize a fraudulent voter when
they hear who he claims to be. See Brief for Respondents
in No. 07–21, p. 6 (“[P]recinct workers may recognize an
imposter, and precinct election workers have the authority
to challenge persons appearing to vote if the election board
member ‘is not satisfied that a person who offers to vote is
the person who the person represents the person to be’ ”
(quoting Ind. Code Ann. §3–11–8–27 (West 2006))).
The relative ease of discovering in-person voter imper-
sonation is also owing to the odds that any such fraud will
be committed by “organized groups such as campaigns or
political parties” rather than by individuals acting alone.
L. Minnite & D. Callahan, Securing the Vote: An Analysis
of Election Fraud 14 (2003). It simply is not worth it for
individuals acting alone to commit in-person voter imper-
sonation, which is relatively ineffectual for the foolish few
who may commit it. If an imposter gets caught, he is
subject to severe criminal penalties. See, e.g., Ind. Code
Ann. §3–14–2–9 (making it a felony “knowingly [to] vot[e]
or offe[r] to vote at an election when the person is not
registered or authorized to vote”); §3–14–2–11 (with cer-
tain exceptions, “a person who knowingly votes or offers to
vote in a precinct except the one in which the person is
registered and resides” commits a felony); §3–14–2–12(1)
(making it a felony “knowingly [to] vot[e] or mak[e] appli-
cation to vote in an election in a name other than the
person’s own”); §3–14–2–12(2) (a person who, “having
voted once at an election, knowingly applies to vote at the
same election in the person’s own name or any other
name” commits a felony); see also 42 U.S. C. §1973i(e)(1)
Cite as: 553 U. S. ____ (2008) 21
SOUTER, J., dissenting
(any individual who “votes more than once” in certain
federal elections “shall be fined not more than $10,000 or
imprisoned not more than five years, or both”). And even
if he succeeds, the imposter gains nothing more than one
additional vote for his candidate. See EAC Report 9 (in-
person voter impersonation “is an inefficient method of
influencing an election”); J. Levitt, The Truth about Voter
Fraud 7 (2007) (“[F]raud by individual voters is a singu-
larly foolish and ineffective way to attempt to win an
election. Each act of voter fraud in connection with a
federal election risks five years in prison and a $10,000
fine, in addition to any state penalties. In return, it yields
at most one incremental vote. That single extra vote is
simply not worth the price” (footnote omitted)); cf. 472
F. 3d, at 951 (“[A] vote in a political election rarely has
any instrumental value, since elections for political office
at the state or federal level are never decided by just one
vote” (emphasis in original)).
In sum, fraud by individuals acting alone, however
difficult to detect, is unlikely. And while there may be
greater incentives for organized groups to engage in broad-
gauged in-person voter impersonation fraud, see Minnite
& Callahan, supra, at 20, it is also far more difficult to
conceal larger enterprises of this sort. The State’s argu-
ment about the difficulty of detecting the fraud lacks real
force.
2
Nothing else the State has to say does much to bolster
its case. The State argues, for example, that even without
evidence of in-person voter impersonation in Indiana, it is
enough for the State to show that “opportunities [for such
fraud] are transparently obvious in elections without
identification checks,” Brief for Respondents in No. 07–25,
p. 54. Of course they are, but Indiana elections before the
Voter ID Law were not run “without identification checks”;
22 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
on the contrary, as the Marion County Election Board
informs us, “[t]ime-tested systems were in place to detect
in-person voter impersonation fraud before the challenged
statute was enacted,” Brief for Respondents in No. 07–21,
p. 6. These included hiring poll workers who were pre-
cinct residents familiar with the neighborhood, and mak-
ing signature comparisons, each effort being supported by
the criminal provisions mentioned before. Id., at 6–8.
For that matter, the deterrence argument can do only so
much work, since photo identification is itself hardly a
failsafe against impersonation. Indiana knows this, and
that is why in 2007 the State began to issue redesigned
driver’s licenses with digital watermarking.30 The State
has made this shift precisely because, in the words of its
BMV, “visual inspection is not adequate to determine the
authenticity” of driver’s licenses. See Indiana BMV, su-
pra, n. 30. Indeed, the BMV explains that the digital
watermarks (which can be scanned using equipment that,
so far, Indiana does not use at polling places) is needed to
“tak[e] the guesswork out of inspection.” Ibid.31 So, at
least until polling places have the machines and special
software to scan the new driver’s licenses, and until all the
licenses with the older designs expire (the licenses issued
after 2006 but before the 2007 redesigning are good until
2012, see 458 F. Supp. 2d, at 791), Indiana’s law does no
more than assure that any in-person voter fraud will take
place with fake IDs, not attempted signature forgery.
——————
30 See Indiana BMV, Digital Drivers License: Frequently Asked Ques-
tions, “What is a digital watermark and why is Indiana incorporating it
into their driver license?”, http://www.in.gov/bmv/3382.htm.
31 In the words of Indiana’s Governor, Mitch Daniels: “ ‘Not very long
ago, Indiana driver’s licenses were a late-night talk show joke [because
of] the ease of their fraudulent issuance and also their duplication . . . .
[The new design] will make particularly their duplication dramatically
more difficult.’ ” Udell, Digital Driver’s Licenses Designed To Stem ID
Theft, Evansville Courier, June 7, 2007, p. B6.
Cite as: 553 U. S. ____ (2008) 23
SOUTER, J., dissenting
Despite all this, I will readily stipulate that a State has
an interest in responding to the risk (however small) of in-
person voter impersonation. See ante, at 12 (lead opinion).
I reach this conclusion, like others accepted by the Court,
because “ ‘[w]here a legislature has significantly greater
institutional expertise, as, for example, in the field of
election regulation, the Court in practice defers to empiri-
cal legislative judgments.’ ” Randall, 548 U. S., at 285
(SOUTER, J., dissenting) (quoting Nixon v. Shrink Missouri
Government PAC, 528 U.S. 377, 402 (2000) (BREYER, J.,
concurring)). Weight is owed to the legislative judgment
as such. But the ultimate valuation of the particular
interest a State asserts has to take account of evidence
against it as well as legislative judgments for it (certainly
when the law is one of the most restrictive of its kind, see
n. 26, supra), and on this record it would be unreasonable
to accord this assumed state interest more than very
modest significance.32
3
The antifraud rationale is open to skepticism on one
further ground, what Burdick spoke of as an assessment of
the degree of necessity for the State’s particular course of
action. Two points deserve attention, the first being that
——————
32 On such flimsy evidence of fraud, it would also ignore the lessons of
history to grant the State’s interest more than modest weight, as the
interest in combating voter fraud has too often served as a cover for
unnecessarily restrictive electoral rules. See F. Ogden, The Poll Tax in
the South 9 (1958) (“In Arkansas and Texas, the argument was fre-
quently presented that a poll tax payment prerequisite would purify
elections by preventing repeaters and floaters from voting”); see also
Brief for Historians and Other Scholars as Amici Curiae 4–15 (detailing
abuses); R. Hayduk, Gatekeepers to the Franchise: Shaping Election
Administration in New York 36 (2005) (“In both historical and contem-
porary contexts certain groups have had an interest in alleging fraud
and thereby shaping electoral rules and practices in a restrictive
direction, and other groups have had an opposite interest”).
24 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
the State has not even tried to justify its decision to im-
plement the photo identification requirement immediately
on passage of the new law. A phase-in period would have
given the State time to distribute its newly designed li-
censes, and to make a genuine effort to get them to indi-
viduals in need, and a period for transition is exactly what
the Commission on Federal Election Reform, headed by
former President Carter and former Secretary of State
Baker, recommended in its report. See Building Confi-
dence in U. S. Elections §2.5 (Sept. 2005), App. 136, 140
(hereinafter Carter-Baker Report) (“For the next two
federal elections, until January 1, 2010, in states that
require voters to present ID at the polls, voters who fail to
do so should nonetheless be allowed to cast a provisional
ballot, and their ballot would count if their signature is
verified”). During this phase-in period, the report said,
States would need to make “efforts to ensure that all
voters are provided convenient opportunities to obtain” the
required identification. Id., at 141. The former President
and former Secretary of State explained this recommenda-
tion in an op-ed essay:
“Yes, we are concerned about the approximately 12
percent of citizens who lack a driver’s license. So we
proposed that states finally assume the responsibility
to seek out citizens to both register voters and provide
them with free ID’s that meet federal standards.
States should open new offices, use social service
agencies and deploy mobile offices to register voters.
By connecting ID’s to registration, voting participa-
tion will be expanded.” Carter & Baker, Voting Re-
form is in the Cards, N. Y. Times, Sept. 23, 2005, p.
A19.
Although Indiana claims to have adopted its ID require-
ment relying partly on the Carter-Baker Report, see Brief
for Respondents in No. 07–25, pp. 5, 13, 49; see also ante,
Cite as: 553 U. S. ____ (2008) 25
SOUTER, J., dissenting
at 10 (lead opinion), the State conspicuously rejected the
Report’s phase-in recommendation aimed at reducing the
burdens on the right to vote, and just as conspicuously
fails even to try to explain why.
What is left of the State’s claim must be downgraded
further for one final reason: regardless of the interest the
State may have in adopting a photo identification re-
quirement as a general matter, that interest in no way
necessitates the particular burdens the Voter ID Law
imposes on poor people and religious objectors. Individu-
als unable to get photo identification are forced to travel to
the county seat every time they wish to exercise the fran-
chise, and they have to get there within 10 days of the
election. See supra, at 8–10. 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.
In briefing this Court, the State responds by pointing to
an interest in keeping lines at polling places short. See
Brief for Respondents in No. 07–25, p. 58. It warns that
“[i]f election workers—a scarce resource in any election—
must attend to the details of validating provisional ballots,
voters may have to wait longer to vote,” and it assures us
that “[n]othing deters voting so much as long lines at the
polls.” Ibid. But this argument fails on its own terms, for
whatever might be the number of individuals casting a
provisional ballot, the State could simply allow voters to
sign the indigency affidavit at the polls subject to review
there after the election.33 After all, the Voter ID Law
already requires voters lacking photo identification to
——————
33 Florida has accommodated voters in this manner. In Florida a
voter who casts a provisional ballot may have that vote counted if the
voter’s signature on the provisional-ballot certification matches the
signature on the voter’s registration. See Fla. Stat. Ann. §§101.043,
101.048. The voter is not required to make a second trip to have her
provisional ballot counted.
26 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
sign, at the polling site, an affidavit attesting to proper
registration. See 458 F. Supp. 2d, at 786.
Indeed, the State’s argument more than fails; it back-
fires, in implicitly conceding that a not-insignificant num-
ber of individuals will need to rely on the burdensome
provisional-ballot mechanism. What is more, as the Dis-
trict Court found, the Voter ID Law itself actually in-
creases the likelihood of delay at the polls. Since any
minor discrepancy between a voter’s photo identification
card and the registration information may lead to a chal-
lenge, “the opportunities for presenting challenges ha[ve]
increased as a result of the photo identification require-
ments.” Id., at 789; cf. 472 F. 3d, at 955 (Evans, J., dis-
senting) (“The potential for mischief with this law is obvi-
ous. Does the name on the ID ‘conform’ to the name on
the voter registration list? If the last name of a newly
married woman is on the ID but her maiden name is on
the registration list, does it conform? If a name is mis-
spelled on one—Schmit versus Schmitt—does it conform?
If a ‘Terence’ appears on one and a shortened ‘Terry’ on
the other, does it conform?”).
B
The State’s asserted interests in modernizing elections
and combating fraud are decidedly modest; at best, they
fail to offset the clear inference that thousands of Indiana
citizens will be discouraged from voting. The two remain-
ing justifications, meanwhile, actually weaken the State’s
case.
The lead opinion agrees with the State that “the infla-
tion of its voter rolls is further support for its enactment
of” the Voter ID Law. Ante, at 12. This is a puzzling
conclusion, given the fact, which the lead opinion notes,
that the National Government filed a complaint against
Indiana, containing this allegation:
“Indiana has failed to conduct a general program that
Cite as: 553 U. S. ____ (2008) 27
SOUTER, J., dissenting
makes a reasonable effort to identify and remove in-
eligible voters from the State’s registration list; has
failed to remove such ineligible voters; and has failed
to engage in oversight actions sufficient to ensure that
local election jurisdictions identify and remove such
ineligible voters.” App. 309, 312.
The Federal Government and the State agreed to settle
the case, and a consent decree and order have been en-
tered, see ante, at 12–13, requiring Indiana to fulfill its
list-maintenance obligations under §8 of the National
Voter Registration Act of 1993, 107 Stat. 82, 42 U.S. C.
§1973gg–6.
How any of this can justify restrictions on the right to
vote is difficult to say. The State is simply trying to take
advantage of its own wrong: if it is true that the State’s
fear of in-person voter impersonation fraud arises from its
bloated voter checklist, the answer to the problem is in the
State’s own hands. The claim that the State has an inter-
est in addressing a symptom of the problem (alleged im-
personation) rather than the problem itself (the negli-
gently maintained bloated rolls) is thus self-defeating; it
shows that the State has no justifiable need to burden the
right to vote as it does, and it suggests that the State is
not as serious about combating fraud as it claims to be.34
The State’s final justification, its interest in safeguard-
ing voter confidence, similarly collapses. The problem
with claiming this interest lies in its connection to the
bloated voter rolls; the State has come up with nothing to
suggest that its citizens doubt the integrity of the State’s
——————
34 The voting-rolls argument also suggests that it would not be so
difficult to detect in-person voter fraud after all. If it is true that
practitioners of fraud are most likely to vote in the name of registered
voters whom they know to have died or left the jurisdiction, then
Indiana could simply audit its voting records to examine whether, and
how often, in-person votes were cast using these invalid registrations.
28 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
electoral process, except its own failure to maintain its
rolls. The answer to this problem is not to burden the
right to vote, but to end the official negligence.
It should go without saying that none of this is to deny
States’ legitimate interest in safeguarding public confi-
dence. The Court has, for example, recognized that fight-
ing perceptions of political corruption stemming from large
political contributions is a legitimate and substantial state
interest, underlying not only campaign finance laws, but
bribery and antigratuity statutes as well. See Nixon v.
Shrink Missouri Government PAC, 528 U.S. 377, 390
(2000). But the force of the interest depends on the facts
(or plausibility of the assumptions) said to justify invoking
it. See id., at 391 (“The quantum of empirical evidence
needed to satisfy heightened judicial scrutiny of legislative
judgments will vary up or down with the novelty and
plausibility of the justification raised”). While we found in
Nixon that “there is little reason to doubt that sometimes
large contributions will work actual corruption of our
political system, and no reason to question the existence of
a corresponding suspicion among voters,” id., at 395, there
is plenty of reason to be doubtful here, both about the
reality and the perception. It is simply not plausible to
assume here, with no evidence of in-person voter imper-
sonation fraud in a State, and very little of it nationwide,
that a public perception of such fraud is nevertheless
“inherent” in an election system providing severe criminal
penalties for fraud and mandating signature checks at the
polls. Cf. id., at 390 (“[T]he perception of corruption [is]
‘inherent in a regime of large individual financial contri-
butions’ to candidates for public office” (quoting Buckley v.
Valeo, 424 U.S. 1, 27 (1976) (per curiam)).
C
Without a shred of evidence that in-person voter imper-
sonation is a problem in the State, much less a crisis,
Cite as: 553 U. S. ____ (2008) 29
SOUTER, J., dissenting
Indiana has adopted one of the most restrictive photo
identification requirements in the country. The State
recognizes that tens of thousands of qualified voters lack
the necessary federally issued or state-issued identifica-
tion, but it insists on implementing the requirement im-
mediately, without allowing a transition period for tar-
geted efforts to distribute the required identification to
individuals who need it. The State hardly even tries to
explain its decision to force indigents or religious objectors
to travel all the way to their county seats every time they
wish to vote, and if there is any waning of confidence in
the administration of elections it probably owes more to
the State’s violation of federal election law than to any
imposters at the polling places. It is impossible to say, on
this record, that the State’s interest in adopting its sig-
nally inhibiting photo identification requirement has been
shown to outweigh the serious burdens it imposes on the
right to vote.
If more were needed to condemn this law, our own
precedent would provide it, for the calculation revealed in
the Indiana statute crosses a line when it targets the poor
and the weak. Cf. Anderson v. Celebrezze, 460 U.S. 780,
793 (1983) (“[I]t is especially difficult for the State to
justify a restriction that limits political participation by an
identifiable political group whose members share a par-
ticular viewpoint, associational preference, or economic
status”). If the Court’s decision in Harper v. Virginia Bd.
of Elections, 383 U.S. 663 (1966), stands for anything, it is
that being poor has nothing to do with being qualified to
vote. Harper made clear that “[t]o introduce wealth or
payment of a fee as a measure of a voter’s qualifications is
to introduce a capricious or irrelevant factor.” Id., at 668.
The State’s requirements here, that people without cars
travel to a motor vehicle registry and that the poor who
fail to do that get to their county seats within 10 days of
every election, likewise translate into unjustified economic
30 CRAWFORD v. MARION COUNTY ELECTION BD.
SOUTER, J., dissenting
burdens uncomfortably close to the outright $1.50 fee we
struck down 42 years ago. Like that fee, the onus of the
Indiana law is illegitimate just because it correlates with
no state interest so well as it does with the object of deter-
ring poorer residents from exercising the franchise.
* * *
The Indiana Voter ID Law is thus unconstitutional: the
state interests fail to justify the practical limitations
placed on the right to vote, and the law imposes an unrea-
sonable and irrelevant burden on voters who are poor and
old. I would vacate the judgment of the Seventh Circuit,
and remand for further proceedings.
Cite as: 553 U. S. ____ (2008) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 07–21 and 07–25
_________________
WILLIAM CRAWFORD, ET AL., PETITIONERS
07–21 v.
MARION COUNTY ELECTION BOARD ET AL.
INDIANA DEMOCRATIC PARTY, ET AL., PETITIONERS
07–25 v.
TODD ROKITA, INDIANA SECRETARY OF STATE,
ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[April 28, 2008]
JUSTICE BREYER, dissenting.
Indiana’s statute requires registered voters to present
photo identification at the polls. It imposes a burden upon
some voters, but it does so in order to prevent fraud, to
build confidence in the voting system, and thereby to
maintain the integrity of the voting process. In determin-
ing whether this statute violates the Federal Constitution,
I would balance the voting-related interests that the stat-
ute affects, asking “whether the statute burdens any one
such interest in a manner out of proportion to the statute’s
salutary effects upon the others (perhaps, but not neces-
sarily, because of the existence of a clearly superior, less
restrictive alternative).” Nixon v. Shrink Missouri Gov-
ernment PAC, 528 U.S. 377, 402 (2000) (BREYER, J., con-
curring); ante, at 6–7 (lead opinion) (similar standard);
ante, at 2–3 (SOUTER, J., dissenting) (similar standard).
Applying this standard, I believe the statute is unconstitu-
tional because it imposes a disproportionate burden upon
2 CRAWFORD v. MARION COUNTY ELECTION BD.
BREYER, J., dissenting
those eligible voters who lack a driver’s license or other
statutorily valid form of photo ID.
Like JUSTICE STEVENS, I give weight to the fact that a
national commission, chaired by former President Jimmy
Carter and former Secretary of State James Baker, stud-
ied the issue and recommended that States should require
voter photo IDs. See Report of the Commission on Federal
Election Reform, Building Confidence in U. S. Elections
§2.5 (Sept. 2005) (Carter-Baker Report), App. 136–144.
Because the record does not discredit the Carter-Baker
Report or suggest that Indiana is exceptional, I see noth-
ing to prevent Indiana’s Legislature (or a federal court
considering the constitutionality of the statute) from
taking account of the legislatively relevant facts the report
sets forth and paying attention to its expert conclusions.
Thus, I share the general view of the lead opinion insofar
as it holds that the Constitution does not automatically
forbid Indiana from enacting a photo ID requirement.
Were I also to believe, as JUSTICE STEVENS believes, that
the burden imposed by the Indiana statute on eligible
voters who lack photo IDs is indeterminate “on the basis of
the record that has been made in this litigation,” ante, at
18, or were I to believe, as JUSTICE SCALIA believes, that
the burden the statute imposes is “minimal” or “justified,”
ante, at 1 (opinion concurring in judgment), then I too
would reject the petitioners’ facial attack, primarily for the
reasons set forth in Part II of the lead opinion, see ante, at
7–13.
I cannot agree, however, with JUSTICE STEVENS’ or
JUSTICE SCALIA’s assessment of the burdens imposed by
the statute. The Carter-Baker Commission conditioned its
recommendation upon the States’ willingness to ensure
that the requisite photo IDs “be easily available and is-
sued free of charge” and that the requirement be “phased
in” over two federal election cycles, to ease the transition.
Carter-Baker Report, at App. 139, 140. And as described
Cite as: 553 U. S. ____ (2008) 3
BREYER, J., dissenting
in Part II of JUSTICE SOUTER’s dissenting opinion, see
ante, at 3–16, Indiana’s law fails to satisfy these aspects of
the Commission’s recommendation.
For one thing, an Indiana nondriver, most likely to be
poor, elderly, or disabled, will find it difficult and expen-
sive to travel to the Bureau of Motor Vehicles, particularly
if he or she resides in one of the many Indiana counties
lacking a public transportation system. See ante, at 6–7
(SOUTER, J., dissenting) (noting that out of Indiana’s 92
counties, 21 have no public transportation system at all
and 32 others restrict public transportation to regional
county service). For another, many of these individuals
may be uncertain about how to obtain the underlying
documentation, usually a passport or a birth certificate,
upon which the statute insists. And some may find the
costs associated with these documents unduly burdensome
(up to $12 for a copy of a birth certificate; up to $100 for a
passport). By way of comparison, this Court previously
found unconstitutionally burdensome a poll tax of $1.50
(less than $10 today, inflation-adjusted). See Harper v.
Virginia Bd. of Elections, 383 U.S. 663, 664 n. 1, 666
(1966); ante, at 30 (SOUTER, J., dissenting). Further,
Indiana’s exception for voters who cannot afford this cost
imposes its own burden: a postelection trip to the county
clerk or county election board to sign an indigency affida-
vit after each election. See ante, at 8–10 (same).
By way of contrast, two other States—Florida and Geor-
gia—have put into practice photo ID requirements signifi-
cantly less restrictive than Indiana’s. Under the Florida
law, the range of permissible forms of photo ID is substan-
tially greater than in Indiana. See Fla. Stat. §101.043(1)
(West Supp. 2008) (including employee badge or ID, a
debit or credit card, a student ID, a retirement center ID,
a neighborhood association ID, and a public assistance
ID). Moreover, a Florida voter who lacks photo ID may
cast a provisional ballot at the polling place that will be
4 CRAWFORD v. MARION COUNTY ELECTION BD.
BREYER, J., dissenting
counted if the State determines that his signature
matches the one on his voter registration form.
§§101.043(2); 101.048(2)(b).
Georgia restricts voters to a more limited list of accept-
able photo IDs than does Florida, but accepts in addition
to proof of voter registration a broader range of underlying
documentation than does Indiana. See Ga. Code Ann.
§21–2–417 (Supp. 2007); Ga. Comp. Rules & Regs., Rule
183–1–20.01 (2008) (permissible underlying documents
include a paycheck stub, Social Security, Medicare, or
Medicaid statement, school transcript, or federal affidavit
of birth, as long as the document includes the voter’s full
name and date of birth). Moreover, a Federal District
Court found that Georgia “has undertaken a serious,
concerted effort to notify voters who may lack Photo ID
cards of the Photo ID requirement, to inform those voters
of the availability of free [State-issued] Photo ID cards or
free Voter ID cards, to instruct the voters concerning how
to obtain the cards, and to advise the voters that they can
vote absentee by mail without a Photo ID.” Common
Cause/Georgia v. Billups, 504 F. Supp. 2d 1333, 1380 (ND
Ga. 2007). While Indiana allows only certain groups such
as the elderly and disabled to vote by absentee ballot, in
Georgia any voter may vote absentee without providing
any excuse, and (except where required by federal law)
need not present a photo ID in order to do so. Compare
Ind. Code §3–11–4–1 (West 2006) with Ga. Code Ann.
§21–2–381 (Supp. 2007). Finally, neither Georgia nor
Florida insists, as Indiana does, that indigent voters travel
each election cycle to potentially distant places for the
purposes of signing an indigency affidavit.
The record nowhere provides a convincing reason why
Indiana’s photo ID requirement must impose greater
burdens than those of other States, or than the Carter-
Baker Commission recommended nationwide. Nor is
there any reason to think that there are proportionately
Cite as: 553 U. S. ____ (2008) 5
BREYER, J., dissenting
fewer such voters in Indiana than elsewhere in the coun-
try (the District Court’s rough estimate was 43,000). See
458 F. Supp. 2d 775, 807 (SD Ind. 2006). And I need not
determine the constitutionality of Florida’s or Georgia’s
requirements (matters not before us), in order to conclude
that Indiana’s requirement imposes a significantly
harsher, unjustified burden.
Of course, the Carter-Baker Report is not the Constitu-
tion of the United States. But its findings are highly
relevant to both legislative and judicial determinations of
the reasonableness of a photo ID requirement; to the
related necessity of assuring that all those eligible to vote
possess the requisite IDs; and to the presence of alterna-
tive methods of assuring that possession, methods that are
superior to those that Indiana’s statute sets forth. The
Commission’s findings, taken together with the considera-
tions set forth in Part II of JUSTICE STEVENS’ opinion, and
Part II of JUSTICE SOUTER’s dissenting opinion, lead me to
the conclusion that while the Constitution does not in
general forbid Indiana from enacting a photo ID require-
ment, this statute imposes a disproportionate burden upon
those without valid photo IDs. For these reasons, I
dissent.