In Brief: Crawford v. Marion County Election Board

Crawford v. Marion County Election Board (Oral arguments to be heard on January 9, 2008)

Question Presented: Whether an Indiana statute mandating that those seeking to vote in-person produce a government-issued photo identification violates the First and Fourteenth Amendments to the United States Constitution.

Law in Question: This law requires a voter to show valid photographic identification before casting a ballot. When voters do not have valid identification, they may cast a provisional ballot and have until the second Monday after the election to provide valid identification and sign an affidavit affirming they are the person who cast the provisional vote, or sign an affidavit claiming indigence or religious objection to having their photograph taken.

Why This Matters: Since Bush v. Gore, 531 U.S. 1060 (U.S. 2000), the field of election law has grown tremendously as the amount of litigation regarding elections has grown dramatically. As Professor Rick Hasen of Loyola Law School points out in his amicus curiae for Crawford, some voters have lost confidence in the fairness of the electoral process and public opinion shows a troublesome partisan and racial divide.

By all accounts, Crawford v. Marion County is a prime example of Professor Hasen’s observation. Very clearly, Democrats support the Petitioners, who want the Voter ID Law overturned. They argue the law is merely a Republican ploy to disenfranchise poor and minority voters, who traditionally vote Democratic.

Republicans, meanwhile, supporting the Respondents, overwhelmingly want the Voter ID Law affirmed. They state there is no bias and the Voter ID Law is merely a mechanism to prevent Democrats from committing voter fraud.

This case is important because the Court’s ruling could potentially reinforce or potentially relieve the public’s opinion of the court’s partisan, or non-partisan, role in the political elections. With opinions divided by party lines, the court must tread very carefully to come to a decision that is both legally and socially acceptable in order to uphold the integrity of the Court. A failure in this regard could turn a closely watched Crawford decision into another Bush v. Gore: an opinion many in America felt was arbitrary, subject not to the correctness of law, but to the personal opinions and personalities of those in judicial power.

The Court must also show unity and bi-partisanship in their decision. Crawford must cross the Bush v. Gore party lines. As the last Court term saw a tremendous amount of 5-4 decisions, Chief Justice Roberts must work hard to avoid such an outcome or Crawford risks bringing the 2008 election back to 2000.

Respondents argue:

First, the Petitioners have no standing under Article III because Petitioners have not identified any people unable to vote because of the Voter ID Law.

Second, the Voter ID Law does not impose a “severe burden” on the right to vote and there is no discrimination against minorities, Democrats, “non-drivers,” urban dwellers, the elderly, the poor, the homeless, the disabled, or anyone else.

Third, the Voter ID Law is a reasonable effort to combat in-person voter fraud, which has historically existed in America.

Petitioners reply:

First, they, indeed, have standing. Indiana State Representative, William Crawford, has standing to assert the interests of their constituents; as does the ACLU for its members.

Second, the Voter ID Law imposes a severe burden to those trying to exercise their right to vote: the elderly, the disabled, the poor, and minorities, among other groups.

Third, there is no evidence of any in-person voter impersonation fraud in Indiana.

Fourth, the Voter ID Law is not narrowly tailored enough to the State’s interests.

More Information:

Articles and Commentaries on the Crawford case