Fanning the Flames: The Freedom Project Blog


Voter ID Law Vindicated

By Shawn Healy
The Supreme Court today, in a 6-3 decision, upheld Indiana's Voter ID Law eight days in advance of the pivotal primary scheduled for May 6. The majority split along moderate-conservative lines, with left-leaning Justice John Paul Stevens penning the lead opinion, joined by Chief Justice Roberts and Justice Kennedy. The conservative wing, led by Justice Scalia, and including Justices Thomas and Alito, concurred with the results, but offered different reasoning for their conclusions. The liberal bloc also split, with Justice Souter writing one dissent, joined by Justice Ginsberg, and Justice Breyer writing his own solo dissent.

At issue was the constitutionality of the Voter ID Law passed in 2005. It requires persons casting a ballot at polling stations on election day or in advance at the office of the circuit court clerk to furnish government-issued photo identification. Exceptions exist for those who cast absentee ballots, along with those who live in state-licensed nursing homes. Residents with religious objections to having their photo taken for a government ID may cast a provisional ballot and file an affidavit with the circuit court clerk within ten days. A similar exception exists for those who fail to furnish an ID at the polls. Photo ID's are not required for voter registration, yet they are issued free of charge.

The suit was brought by two parties, one led by the Indiana and Marion County Democratic Party, and the other by two elected officials and a host of non-profit organizations. They were consolidated, and argue that the law substantially burdens their right to vote in violation of the 14th Amendment. Moreover, they charge that it is an unnecessary and unsuccessful means of combating alleged fraud, not to mention disenfranchising some and placing an "unjustified burden on those who cannot readily obtain such identification." There were an estimated 43,000 state residents without a state issued license or identification as of 2005.

The majority rejects these arguments, and proceeds to dissect them point-by-point. They refuse to apply a 1966 decision ruling a Virginia poll tax unconstitutional, placing state justifications for the statute alongside the burdens it imposes upon voters. State interests include deterring and detecting voter fraud, cleansing voter rolls of displaced and deceased persons, and safeguarding voter confidence. Fraud, while rarely documented, is deemed a real risk and a threat to throw a close contest. Inflated voter rolls are a similar threat, and the third justification, voter confidence, is held in the highest esteem, for it encourages voter participation in the process.

For those without state-issued ID's, the majority find that the burden of obtaining one is not substantial. Stevens deals with a looming objection near the end of his opinion, namely that this statute is a Republican-inspired trick to reduce Democratic turnout, as those without ID's are disproportionately members of demographic groups that tend to favor the Democratic Party. While not dismissing partisan intentions, the majority once more affirms the legitimacy of the law on grounds of "neutral and sufficiently strong" justifications.

Justice Scalia concurs with the judgment, but fears that the majority opens a Pandora's box for future litigation in federal courts, at once dismissing the petitioners' premise as "irrelevant" and the burden imposed by the Voter ID Law "minimal and justified." Applying past precedent, Scalia concludes that "burdens are severe if they go beyond the merely inconvenient." He thus defers to states to govern their own elections short of imposing "a severe and unjustified overall burden upon the right to vote."

Justice Souter takes the majority to task, arguing that the burdens imposed by the Indiana law is indeed severe and unjustified, specifically the "significant percentage...of individuals...likely to be deterred from voting." These burdens include travel costs associated with obtaining a new ID, not to mention fees associated with acquiring a mandated birth certificate or passport. Together they would fall disproportionately on "the poor, the old, and the immobile." Souter concludes that Indiana's law is one of the most restrictive in the country. Justice Breyer, in his own dissent, doesn't shed much additional light on the case other than to hold up laws in Florida and Georgia as less restrictive means of pursuing similar ends.

Given the green light the Supreme Court gave for voter identification requirements, the ruling is likely to have ramifications elsewhere. For example, Wisconsin's state legislature passed similar legislation three times, but met the governor's veto in each instance. Republicans in the state legislature vow to continue pushing this agenda item.

Given that next Tuesday's contest in Indiana is central to only the Democrats, disenfranchisement or deterrence attributed to the statute isn't likely to have a meaningful impact, although we have witnessed significant demographic differences between Sens. Clinton and Obama in the nominating contests to date. However, come fall, if the habitually "red" Hoosier State is in play, the Voter ID Act may make it crimson.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at

Dave Anderson
Vice President of Civic Programs
McCormick Foundation

Tim McNulty
Senior Journalist
McCormick Freedom Project

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