Page 28


nearest county clerk’s office within 10 days in order to fill out an affidavit to explain the reason for a lack of photo ID, such as indigency or religious objections. Such requirements, the Indiana Democratic Party had argued, would create a significant hurdle for those who cannot locate the required documents or do not have the financial means to pay for them or for the trips to the necessary offices. Stevens surmised, however, that there was insufficient evidence presented in the trial record to “quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified.” He dismissed much of the evidence that parties such as the Brennan Center attempted to have considered by the Court as “extrarecord, postjudgment studies, the accuracy of which has not been tested in the trial court.” He noted, however, that the Indiana law would not pass muster “if the State required voters to pay a tax or a fee to obtain a new photo identification.” And he wrote that the burden on those without identification is lessened because “voters without photo identification may cast provisional ballots that will ultimately be counted.” “The lead opinion said it was reasonable to permit a solution to something that isn’t a problem as long as it isn’t really burdening anybody,” Weiser said. “This leaves open the possibility that if there is better proof of a burden, then the problem … might take on greater significance.” To see what a true victory for conservative backers of voter ID laws would have been like, one need look no further than Justice Scalia’s concurring opinion. Scalia would scrap Justice Stevens’ balancing test, and he dismissed the premise that voteridentification laws could impose a burden on certain voters as “irrelevant.” He described Indiana’s measures that allowed absentee voting and provisional balloting as an “indulgence not a constitutional imperative.” And he warned that by leaving open the possibility of future legal challenges of voter ID laws, the majority opinion was encouraging “constant litigation.” The legal arguments in the Court’s case mirrored the debate that took place in the Texas Legislature last year and during hearings on voter fraud held by the House Elections Committee in Januarylikely to be rehashed when the 81st Legislature revisits the issue next year. Voter ID laws, according to the bill’s opponents, are a solution looking for a problem. Instances of in-person voter fraud are exceptionally rare. And even if some fraud takes place at the polling stations, it is extremely difficult to pull off on a scale large enough to sway an election. The days of truckloads of voters being ferried to polls around town with impunitythe 19th century, Tammany Hall-era New York fraud that Justice Stevens citedare long since gone. A common concern of bill proponents in Texas is that the lack of a voter ID law permits illegal immigrants to somehow find a way to vote. Anecdotes circulated in support of these claims have been quickly refuted, and the law would do nothing to deter non-citizens who have Texas driver’s licenses or other supported photo IDs. Meanwhile, requiring photo IDs at the polls would make it more difficult for the elderly, the homeless, the disabled, and the urban poor to vote, as they are the least likely to have driver’s licenses or other common forms of ID, and they are also the least able to navigate the avenues necessary to get them. “Texas has a long history of voting discrimination, and that’s why there was such a visceral attack on the voter ID proposals by the minority community:’ said Luis Figueroa, a legislative staff attorney for the Mexican American Legal Defense and Education Fund. “Because of the history of barriers that have been put up in places like Texas, there is concern that this is another attempt to repress minority voting.” Democrats contend that the drive to enact voter ID legislation is, in fact, motivated by the desire for partisan advantage. As former Texas Republican Party political director Royal Masset told the Houston Chronicle last year, a state photo ID law “could cause enough of a drop-off in legitimate Democratic voting to add 3 percent to the Republican vote.” According to Sonia Santana, who focuses on election issues for the Texas ACLU, of particular concern the last time the Legislature debated the bill was the lack of funding for low-cost photo IDs for voters without a license. Another area of concern is the state’s history of ignoring provisional ballotsa form of voting that would become much more prevalent if poll-place identification laws are tightened. Currently, only one in four provisional ballots cast in Texas is counted, well below the national average of 70 percent. “The state of Texas is wasting its time on this,” Santana said. “As it is, we’ve already got a pathetically low turnout. Why put up another barrier when it’s just a nonexistent problem? It’s fear, hype, and racism:” Republicans counter that in-person voter fraud is difficult to detect, so the extent of the problem is unknown. They argue that the law would inconvenience few voters, although some of their arguments turn statistics on their head. For instance, the bill’s supporters cite similar figures for registered voters and licensed drivers as evidence that every voter has a picture ID, despite the fact that licenses are available to non-citizens and those under voting age. They also point to increased voter turnout in Indiana and Georgia following passage of voter ID bills. Outside the court after oral arguments in January, Indiana Secretary of State Todd Rokita went so far as to claim that Indiana’s law helped account for the larger voter turnout in the state in the 2006 elections. Santana counters, however, that there’s no connection. Currently, only one in four pro visional ballots cast in Texas is counted, well below the national average of 70 percent. 8 THE TEXAS OBSERVER MAY 16, 2008