“ I would think they would pass legislation that would help them vote, rather than not vote .” (Saint Mary's College freshman Lauren McCallick)

I can’t stop thinking about the twelve Sisters of Holy Cross , all in their 80s and 90s, many in wheelchairs or walkers or electric carts, who were not allowed to vote in the recent Indiana primary because they lacked valid Indiana drivers’ licenses or current passports. Indiana now has the most restrictive voter ID requirements in the country. Only a currently valid, government-issued photo ID will do, not the forms of identification (such as leases, utilities bills, signatures, or other identification cards) traditionally permitted in Indiana and the other states. Because the U.S. Supreme Court recently upheld the Indiana law in Crawford v. Marion County Election Board , other states may soon pass similarly restrictive laws. The nuns’ experience should give them pause.

No one has suggested that these sisters were not law-abiding citizens who were intent on voting fraudulently. Indeed it was a fellow Holy Cross sister, Sister Julie McGuire , who enforced the law against her recognizable, elderly sisters by stopping them from voting at their polling place, St. Mary’s Convent in South Bend, Indiana, where 220 voters cast ballots in the May 6 primary. St. Mary’s College freshman Lauren McCallick was also not permitted to vote; although she had registered to vote in Indiana, her St. Mary’s ID and California driver’s license were unacceptable forms of identification .  The same fate befell another St. Mary’s student. There was never any controversy, however, about the actual identify of the nuns or the students, who were clearly the people they said they were and had no intention of voting in multiple jurisdictions.

The absence of any voter fraud at the convent is important to the broader argument about photo identification laws. As Justice John Paul Stevens made clear in his flawed opinion upholding the law:

The only kind of voter fraud that SEA 483 [the Indiana statute] addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history.

Yes, you read that sentence correctly, there was no evidence of any such fraud actually occurring in Indiana at any time in its history! There was evidence that fraud occurs in the casting of absentee ballots, but the statute did not address absentee ballots, targeting in-person identification only. There is evidence that voter participation is decreasing , and, since Bush v. Gore, the fear that all votes may not be counted, but the statute did not address those problems either. Indeed the law would cause more delay and longer lines in casting a ballot in Indiana as voter IDs were checked.

In other words, the Indiana voting act solved a problem that does not exist (in-person voter fraud); avoided a similar problem that does exist (absentee ballot fraud); and ignored the biggest elephant in the voting rights room, namely laws and policies that limit access to the polls or keep ballots from being counted.

In our legal system, courts are expected to exercise judicial review over the legislatures’ actions to make sure that they behave reasonably. Most of the time, they exercise so-called rational basis scrutiny, making sure that the state has some basis for action, and that the state’s means are reasonably related to its ends. Because voting is a fundamental right, however, the courts usually employ more exacting scrutiny over any law that restricts voter participation. As Justice David Souter wrote in his dissent to the Supreme Court’s upholding of the Indiana law:

a State may not burden the right to vote merely by invoking abstract interests, be they legitimate, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed.

A voting law that solves a non-existent problem while avoiding real ones should not be able to withstand any kind of court scrutiny, whether rational or strict.

As the nuns’ experience confirms, the challengers to the Indiana law accurately predicted that its burden would fall upon the elderly . Judge Terence Evans, who dissented from the Seventh Circuit’s opinion upholding the law, addressed the law’s problem more directly:

Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.

The Indiana law passed along strictly partisan lines , with Indiana Republicans in the legislature voting for and Democrats against the bill; a Republican governor signed the bill into law; the Indiana Democratic party challenged it in the courts; the law was upheld by a Republican-appointed district court judge ; upheld again by a vote of two Republican to one Democratic appointees in the Seventh Circuit Court of Appeals; and by six Republican appointees in the United States Supreme Court, with the only two Democrats in dissent. Only Justice Souter voted out of party alignment, and so I pay the most attention to his conclusion about the law’s unconstitutionality:

the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise…….the law imposes an unreasonable and irrelevant burden on voters who are poor and old.

And apparently on young students too, who are likely to live and vote in one state while holding drivers’ licenses from another. As the St. Mary’s student rightly pointed out, you would think the goal of the legislature would be to increase voter participation rather than to deter voting by young, old and nuns.