More on Indiana Voter ID Decision:

Rick Hasen discusses the 7th Circuit's decision upholding Indiana's photo ID law here. See also here, and the AP story here. Hoawrd Bashman rounds up more news covereage here.

Related Posts (on one page):

  1. More on Indiana Voter ID Decision:
  2. Indiana Voting Law Upheld:
cirby (mail):
I think they could make a bit of headway in future discussion if they found out 1) how many registered voters there are in Indiana, and 2) how many adults of voting age in Indiana have driver's licenses or state-issued IDs.
1.6.2007 1:30pm
Dilan Esper (mail) (www):
I think Hasen's got this exactly right. Identifying voters and making sure they are legitimate is a perfectly acceptable enterprise. It's not really an excuse that such fraud doesn't happen that often-- that's no different than excusing electronic voting machines that can be hacked by saying they haven't been yet.

At the same time, a good identification requirement needs to allow (as Indiana does) for a free ID for poor people, and it needs to do something to ensure the security of absentee ballots. Get rid of those aspects and it really does look like Republicans trying to depress Democratic turnout (including legitimate, nonfraudulent Democratic turnout) without doing anything about potential fraud that favors Republicans.
1.6.2007 1:34pm
dick thompson (mail):
Get rid of voter proof of ID and how do you combat Democratic fraud at all. That is what the option I see some of the commenters in the previous thread suggesting as the answer.

I am all for everyone voting so long as they are legitimate and are citizens and can prove it. If they cannot do that, then I do not think they should be entitled to vote. The legislatures have bent over so far to accommodate those who would have problems getting ID that they are almost in pretzels and still it doesn't seem to satisfy the nay sayers. If you ask what kind of proof would you accept, they say just pledge that you are who you say you are. That and a buck fifty will buy you a coffee at Starbucks but will not ensure that legitimate voters and legitimate only are accommodated.
1.6.2007 6:03pm
Michelle Dulak Thomson (mail):
Dilan Esper,

Yes to everything. I for one think it's alarming that a lot of people who want better assurance that the people voting in person are legitimate voters (as I do) don't seem to care about absentee ballots so much.

Absentee ballots really ought to be for those who can't vote in person on polling day. They ought not to be just a convenience for people who'd rather not stand in line with hoi polloi. Therefore they ought to be filled out before a witness, just like everyone else's ballots.

Of course, there are those who think otherwise. Not long ago I got an (un-asked-for) application for "permanent absentee voter" status from the CA government. I have never applied for an absentee ballot in my life, so I can only assume that the State of CA thinks it's in my interest to vote by mail for the rest of my life, and courteously supplied all the required paperwork.
1.6.2007 7:59pm
Michelle Dulak Thomson (mail):
I ought to have added: Which party do you suppose thinks offering all and sundry "permanent absentee voter status" is a good idea? NB: I don't know the answer, though I do have a guess.
1.6.2007 8:02pm
Guest44 (mail) (www):
Dilan, I'm not sure what you think the 7th circuit should have done. You're saying that because the legislature's plan was not complete (left the possibility of absentee fraud), it should get strict scrutiny and be struck down?
1.6.2007 8:42pm
Thorley Winston (mail) (www):
A couple of things struck me as being off in Rick Hasen's critique of the opinion:

Judge Posner's reasoning is especially sloppy, especially when it comes to the absentee ballot question. Judge Posner doesn't see a way that voter i.d. can work with absentee balloting, but of course there's an easy way that I've suggested to deal with the problem---require absentee voters to use a fingerprint on their ballot.

I see at least two problems with this suggestion. First, having to put your fingerprint on your ballot would make it possible to trace the ballot the individual voter thereby no longer making it a "secret ballot." In contrast, merely having to show picture identification to get your ballot at the polling place (or get your absentee ballot at the county office or whoever distributes them in Indiana) merely shows that you got a ballot, it doesn't show that you completed it much less who you voted for (unless you're the only one who voted).

The other problem with this suggestion is that as Judge Posner pointed out, the value of an individual vote is generally not that great so anything that makes it harder to vote could potentially discourage someone from vote (as could anything that makes a potential voter think that their vote is worth less such as the belief that their vote might be canceled by a fraudulent vote). Hasen's suggestion by potentially compromising the secretiveness of the ballot could have the effect of making people even less likely to vote.

More importantly, Judge Posner ignores the strong evidence that most of the documented cases of vote fraud comes from absentee ballots. A law purportedly aimed at voter fraud that ignores the biggest area of vote fraud is not rationally related (or narrowly tailored, depending upon the level of scrutiny) to any legitimate (or compelling) government interest.

Hasen seems to be confusing the level of scrutiny with which the court reviews the government action and how much of the scope of the problem of voter fraud is addressed by a statute. Generally courts have found that the legislature when designing a program or law to combat an evil may do so in a step-by-step fashion rather than trying to deal with all aspects of the evil simultaneously. If the State of Indiana wishes to first deal with potential voter fraud at the polls and then develop measures to deal with potential voter fraud from absentee ballots, its decision to do one first does not invalidate its approach. The means by which it chooses to combat that evil (e.g. showing a photo ID to vote at the polls) are what's subject to judicial scrutiny based on the relations to the goal (rationally related) or the burden it places on the individual right in question (strict scrutiny). This is particularly odd IMO since Hasen's "solution" to the potential fraud in absentee voting by being more likely to discourage voting would probably be more burdensome than the method chosen by the State.
1.7.2007 12:46am
First, having to put your fingerprint on your ballot would make it possible to trace the ballot the individual voter thereby no longer making it a "secret ballot."

I'm confused. Don't you already have to sign an absentee ballot?
1.7.2007 1:26am
Steve is right - an absentee ballot is marked with your votes, put inside another envelope, which you sign and date, and THAT envelope is put inside a third envelope, which is mailed to the board of elections.

Upon receipt at the board of elections, the signed envelope is separated from your ballot, both of which are counted.
1.7.2007 1:54am
markm (mail):
1. Require applying for an absentee ballot in person, with photo ID, and providing a thumbprint and signature.

2. An absentee ballot is marked with your votes, put inside another envelope, which you sign, date, and thumbprint and THAT envelope is put inside a third envelope, which is mailed to the board of elections. Obviously, that envelope with a thumbprint-sensitive area will be supplied by the board of elections along with the ballot.


Finally, in regards to the question about compromising the secrecy of the ballot, won't all paper ballots have fingerprints on them already? Not that it sounds very practical for a crooked politician to develop and match thousands to millions of latent fingerprints to find out who voted against him, but might continuing improvement in computer matching eventually make it possible?
1.7.2007 8:12am
Absentee voting fraud is a problem that is better understood and documented than in-person voting fraud. However, measures to combat in-person voting fraud (requiring picture ID) are better understood and have been debated in political process for some time now. So these ideas have matured and time has come to implement. Yes, more maturity will be needed for picture ID to be mainstreamed (like no-fee availability). I would expect absentee fraud prevention to mature soon. In political terms, it may be wiser to combine these 2 prongs of anti-fraud in one bill, but it is not necessary.
1.7.2007 1:20pm
Nathan Hall (mail):

A law purportedly aimed at voter fraud that ignores the biggest area of vote fraud is not rationally related (or narrowly tailored, depending upon the level of scrutiny) to any legitimate (or compelling) government interest.

A solution to one problem that ignores some other problems isn't rationally related to a legitimate interest? How can someone arrive at that conclusion?
1.7.2007 4:13pm
New World Dan (www):
One option Indiana could implement (which Minnesota does) is that if you don't have a photo ID, someone else in your precint who has one and knows you can vouch for you. While that opens up another can of worms in the fraud debate, I think it might be a pretty reasonable compromise.
1.8.2007 10:31am
arbitraryaardvark (mail) (www):
I am a not infrequent commenter here. I am also the attorney in an Indiana voter ID lawsuit in state court. I am also an aardvark. Today (1/8/07) the trial court granted leave to appeal and issued findings of fact, explaining which trial rule wasn't followed as the basis for its denial of TRO and injunction. I had moved for these before the election. That ruling isn't online yet. Also today I filed a first amended, complaint. My client lacks funds to pay the appeal filing fees, and lacks funds to hire a better lawyer. As I've been saying on the election law list, "send lawyers guns and money." Mr. Adler is free to remove this self-serving if informative post if he chooses.
As to the Posner opinion, I am troubled by its failure to address the issues of standard of review under the poll tax amendment, the equal protection clause, the free and equal elections state constitutional claim, and the other state con. claim, as well as the failure to certify the state claims to the Indiana Supreme Court.
I wonder whether there's any interest in a sort of open source project to come up with an amicus brief when and if the plaintiffs move for rehearing en banc. The 7th doesn't exactly welcome amicus briefs, but there are some perspectives not being addressed by the current plaintiffs (who have done a great job overall, better than I have, but there's still more to say.) - AA, aka Robbin Stewart.
1.8.2007 5:38pm
Eli Rabett (www):
Why should anyone have to pay for a voter ID? Is this not a government function? If there is a cost to voting, why only a few dollars? Why should I or anyone else have to prove we are citizens? Is not knowing this one of the most basic functions of governmetn? Any yes, Virginia, Republicans also cheat so cut the partisan nonsense.
1.9.2007 12:16am
Thorley Winston (mail) (www):
My client lacks funds to pay the appeal filing fees, and lacks funds to hire a better lawyer.

From the Palmer v Marion Countyblog:

The underlying facts are as follows. A general election will be held tomorrow, on November 7, 2006. Indiana have promulgated statutes requiring each voter to display photographic identification ("photo ID") at his or her precinct as a condition of voting. Appellant has a driver's license, but he does not want to display it at the polls out of concern for his privacy. Shortly before the spring primary election, Appellant went to the Bureau of Motor Vehicles to see if he could obtain a free photo ID, but he was told that he is not eligible for a free voter ID because he already has a driver's license.

Pity that he cannot raise funds for a better set of underlying facts.
1.9.2007 4:34pm
arbitraryaardvark (mail) (www):
Thorley, thanks for your comments. I'm not understanding your criticsm. I'm aware that I need to do more than be right, I need to be persuasive, and that's an area where I'm challenged. feel free to drop me a line gtbear at gmail.

51. Palmer's driver's license contains personal information which he does not want to share and which is not needed to verify that he is who he says he is.
52. He does not consent to a search, although he will cooperate with a search authorized by a valid warrant, or a search arising under exigent circumstances with probable cause.
53. He has a consistent practice of refusing to waive his constitutional rights.
54. He is a veteran of the US Army.
55. When he joined the military, he took an oath to uphold and protect the constitution against its enemies, foreign and domestic.
56. He would consider his participation in the compelled waiving of his rights under the constitution to be a violation of the oath he took.
57. His right to not consent to a search was affirmed by the United States Supreme Court in Indianapolis v. Edmond, Palmer, et al., 531 U.S. 32 (2000).
58. "Respondents James Edmond and Joell Palmer were each stopped at a narcotics checkpoint in late September 1998. Respondents then filed a lawsuit on behalf of themselves and the class of all motorists who had been stopped or were subject to being stopped in the future at the Indianapolis drug checkpoints. Respondents claimed that the roadblocks violated the Fourth Amendment of the United States Constitution and the search and seizure provision of the Indiana Constitution. Respondents requested declaratory and injunctive relief for the class, as well as damages and attorney's fees for themselves." 531 U.S. 32(2000)
1.9.2007 10:28pm