Justices Seem Split on Voter ID Laws

Fair elections are a cornerstone of America's democracy, but whether Indiana's law requiring voters to present photo identification at the polls threatens this right seemed to divide the Supreme Court during oral arguments this morning.

Indiana Solicitor General Thomas Fisher meets reporters outside the Supreme Court.

(Evan Vucci/AP)

The consolidated cases by the state Democratic Party and Indiana residents challenge the constitutionality of this ID check and could have broad ramifications in states across the country. Opponents of the law argue that the legislation—passed on strict party lines by Republicans—is aimed at curbing turnout among the poor, minorities, and elderly. Proponents argue that a basic ID check is necessary to combat fraud.

During oral arguments, plaintiffs' counsel Paul Smith said that the law created "substantial financial and practical burdens" on voters, particularly poor ones who may have difficulty paying for an ID or getting a certified copy of a birth certificate, which Indiana requires.

More important, though, is the fact that there is no evidence of voter fraud, Smith said.

"To call it scant is to overstate it," he said.

But Chief Justice John Roberts found that argument problematic because without an ID check, he said, basic fraud is impossible to catch.

That was precisely the point defense counsel Thomas Fisher, solicitor general for the state of Indiana, tried to make, calling the law "a reasonable step to preserve voter confidence." He added: "We're talking about an infinitesimal segment of the electorate that could be affected."

But the sides could not agree on how many voters could potentially be affected. Plaintiffs argued that it was slightly fewer than 200,000 individuals, while the state said it couldn't possibly be more than 25,000 people.

Justice David Souter took aim at Indiana for failing to create accurate voter rolls, suggesting that the state was shifting the burden of its failure onto the voters. By the state's own estimate, 40 percent of names are fraudulent, a statistic that led the federal government to sue Indiana.

Part of the difficulty the case posed for many of the more conservative justices—as well as U.S. Solicitor General Paul Clement, who also weighed in on behalf of the state of Indiana—was that the plaintiffs in the case hadn't been adversely affected by the new law directly because the case was filed before the law went into widespread use. Even Justice Anthony Kennedy—the court's new swing vote—seemed inclined to hold up the essence of the statute, even if he appeared less sure about the exact rules Indiana had devised for the ID law.

Yet Justice Ruth Bader Ginsburg said that judging the effect of the law after the fact couldn't undo any damage it may have had on the outcome of the election. She noted that there was already tangible evidence that the law was preventing votes: In one county, of 34 provisional ballots cast because people were lacking IDs, only two were approved after a formal review.

"That's not hypothetical," she said. "That's real."