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The Indiana Photo ID Case: Would that be 6 to 3 or 3 to 6?

By Eric L. Lipman

As you have no doubt already heard, the U.S. Supreme Court, by a vote of 6 to 3, upheld an Indiana law that requires presentment of a government-issued photo identification for in-person voting. Six Justices agreed with Indiana that even if there was evidence that the regulation impacted some voters more than others, the photo-ID requirement did not amount ?invidious discrimination.?

For me, the most interesting feature of the opinion was not what the Justices said about the Indiana law (although that was interesting), but rather how the Justices broke into clusters along two different standards of review.

In the lead opinion, Chief Justice Roberts, Justice Stevens and Justice Kennedy asserted that ?[r]ather 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 justifications for the burden imposed by its rule, and then make the ?hard judgment? that our adversary system demands.? In the view of these Justices, the balancing of various burdens and benefits associated with the law lay in favor of the photo-ID requirement.

Concurring in the judgment, Justice Scalia, Justice Thomas and Justice Alito, asserted that challenges to laws which regulate the right to vote were to be divided along two tracks, each with a different standard of review. On the first track there was a ?deferential ?important regulatory interests? standard for nonsevere, nondiscriminatory restrictions;? and a second track for more serious cases, thereby ?reserving strict scrutiny for laws that severely restrict the right to vote.? As the concurring Justices argue, this two-track approach is warranted because a ?case-by-case approach naturally encourages constant litigation;? and it is ?for state legislatures to weigh the costs and benefits of possible 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 disadvantage a particular class.?

The three dissenters ? Justice Souter, Justice Ginsburg and Justice Breyer ? embrace the same balancing standard as the lead opinion, but their calibration of the record led them to view the impact of the photo-ID regulation very differently. Wrote Justice Souter: ?I will readily stipulate that a State has an interest in responding to the risk (however small) of in-person voter impersonation?. 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), and on this record it would be unreasonable to accord this assumed state interest more than very modest significance.?

These fault lines are important because they foretell how the Justices will approach, or at least try to approach, future cases. And there is good reason to believe that more of this type of litigation is in the offing. For example, Michael Waldman, Executive Director of New York University's Brennan Center for Justice, remarked today: "[W]e do expect that there will be a major push in state legislatures and Congress to pass very restrictive voter ID laws, this year or next.... We are working with advocates to make sure they have our research on the impact of ID proposals."

Similarly, in a statement sent to legal bloggers this afternoon, Brenda Wright, Legal Director of the voting rights center Demos, stated: "Although the Court's decision has rejected one constitutional challenge to Indiana's law, the decision does not establish that restrictive photo ID requirements such as Indiana's are good policy. In fact, the plurality decision recognizes that Indiana's law may be subject to future challenges by specific persons who are unable to surmount the obstacles to securing the required ID documentation."

So, be sure to stay tuned to Within the Scope. You would not want to miss a thing.

In the meanwhile, the Court?s very interesting opinion is accessible here.

Full post as published by Within the Scope on April 28, 2008 (boomark / email).