Strict Scrutiny of Indiana Photo Identification Law

Thomas Fisher is to argue for Indiana's right to require a state or federal issued photo identification from voters going to the poll to cast their vote. The issue is whether or not imposing such a rule upon legal citizens, who are eligible to vote, is a severe burden that impinges on their fundamental right to exercise the right to vote. If it is, the photo identification requirement must be necessary or the requirement must be deemed as narrowly tailored to meet the objective of the state to prevent voter fraud.

If not, the photo identification is limiting and is only preventing one type of fraud, impersonation fraud and is not preventing the overall objective of the state. Therefore the measure of the state is so limited and unwarranted, to accomplish it goal, that the requirement of the photo identification is too much of a burden on the fundamental right of its citizens to vote.

Indiana suggests that since it will allow those eligible voters who cannot afford a photo identification to vote with a provisional ballot or that the Bureau of Motor Vehicle will issued such voters a free photo identification therefore offsetting this burden. On it face, it might appear that the free photo identification is cost free, but it is not. There is a cost..the purchase of a birth certificate or passport to obtain the state issued photo identification. This fee is not, but is similar to, a poll tax, where the courts have ruled that, "wealth or fee-paying has. . .no relation to voting qualification; the right to vote s too precious, too fundamental to be so burdened." Harper, 383 U.S. at 663, 670 (1966)(cited in Kathleen Weinschenk, et al., Respondents, v. State of Missouri).

The Missouri Court ruled that when a fundamental right is impinged the challenge to its statute should require a strict scrutiny. This means that the state's interest in preventing impersonation fraud should be weighed against the degree of burden that it places on it citizens to exercise their right to cast their vote at the poll. The burden of a photo identification, when other types of identification are available, is too much of a burden for the citizen to shoulder.

The evidence presented to the Missouri court showed that 3% to 4% percent of it voters did not have a photo identification. It showed that the provision ballot signature requirement would not guarantee the voters' signatures would match and their vote counted with the provisional ballot. Thus these eligible registered would be prevented from participating in the electoral process because of Missouri statute.

Indiana statue is similar to the Missouri statute and should be reviewed under the strict scrutiny standard and not simply defer to the wishes of the state in prevention of voter fraud. The court has no direct evidence of voter fraud. And unlike Missouri, which had direct evidence, Indiana only offered theoretical arguments.

It is not individual citizens who are the problem, it is the body of corrupt folks who would do anything to circumvent the election process. Evidence is a plenty for organized fraud, such as fraud committed by voting buy, ghost voting, double addresses voting, and absentee ballots voting, according to the brief submitted by the Brennan Center for Justice. These issues of organized fraud were to be addressed by the Help Americans Vote Act. HAVA laws regulating the updating of voter's registration records.

Listen to the arguments: William Crawford, et al., v. Todd Rokita