I have been somewhat chagrined to emerge in recent months as one of the more prominent defenders of Indiana's photo voter ID law, upheld this week by the Supreme Court in Crawford v. Marion County Board of Elections. I say that because, were I an Indiana legislator, I probably would not have voted in favor of the law. And I agree with those who argue that there is not much voter fraud that can prevented, at least directly, by Indiana’s law.

But as a matter of Constitutional law, it strikes me that the Court’s decision upholding the law was rather unremarkable and certainly correct. The plaintiffs’ case was improbable in many ways. First, the plaintiffs insisted on discussing the case in terms of the number of people “affected” by the law, and then tried to conflate “affected” with “disenfranchised.” This made the plaintiffs’ case seem rather ridiculous, frankly – no one really believed that hundreds of thousands of Indiana residents would be deprived of voting rights by the law, but that is what plaintiffs tried to claim. Judges are not idiots – they saw right through that gambit and the trial judge had some sharp language for the plaintiffs.

Of course, many people were “affected,” but not every burden on the right to vote constitutes “disenfranchisement.” After all, having to register to vote is a burden, and there is no doubt that more people don’t vote because of registration requirements than will not vote because of photo ID requirements. Are all voter registration requirements therefore unconstitutional? The plaintiffs never attempted to answer such questions, or provide the Court with any principled stopping point if it were to strike the Indiana law as unconstitutional.

Plaintiffs also made the mistake of insisting that there was “no evidence” of voter fraud that the law could prevent, when there clearly was some such evidence, even if not a lot. By refusing to concede, against reason and evidence, any state interest in managing elections and trying to prevent fraud, plaintiffs weakened their case – or perhaps merely revealed what a weak case they had. While the law undoubtedly made voting a little more difficult for a small number of people, not one of the plaintiffs was actually unable to vote because of the law. Eventually, the plaintiffs and their allies found a woman named Fay Buis-Ewing who claimed to have been prevented from voting by the law, and she gave a number of interviews to the press, until it was discovered that she also claimed a residence in Florida, was registered to vote there, and was therefore quite probably was ineligible to vote in Indiana. This suggested at least one case where the law worked as intended to prevent an ineligible vote (Buis-Ewing had tried to satisfy the photo ID requirement with a Florida driver’s license). Ultimately, the inability of plaintiffs to find individuals unable to vote because of the law (as opposed to finding it slightly more difficult to vote because of the law), after a statewide search of many months, doomed their case.

Voting rights are, of course, among our most cherished liberties. But allowing fraudulent votes deprives us of voting rights, too. If you are prevented from voting, your rights are violated. But if your legitimate vote is cancelled out by a fraudulent vote, you have also been effectively deprived of your right to vote.

Under our Constitution, states are given broad power to regulate elections. One can certainly imagine requirements to vote that would rise to the level of a Constitutional violation. But the judgment of the Indiana legislature that voters should have to verify their identity with a photo ID to vote seems eminently reasonable to most people. The state provides for indigents who cannot afford ID, and it provides for provisional ballots for those who arrive at the polls without ID. In a case where not a single plaintiff actually was unable to vote because of the law, a decision by the Court finding the law unconstitutional would have been unprecedented and thrown into doubt the entire system of local election administration. If you think about it, what is surprising is not the Court’s decision, but the fact that the case got that far at all.

Bradley A. Smith
Professor of Law
Capital University Law School
Columbus, Ohio