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2008 Voter Suppression Hangs on Supreme Court Decision

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Weekly Voting Rights News Update

By Erin Ferns

In the new year, a case that will determine the state of American voting rights will be considered by the Supreme Court. Called “the most important voting rights case since Bush v. Gore” by the Brennan Center for Justice, Indiana's voter ID case (Crawford v. Marion County Elections Board) may throw a monkey wrench into getting eligible voters to cast ballots in the 2008 presidential election. The constitutionality of the nation’s most restrictive voter identification law is under scrutiny by the country’s highest court and more than two dozen scholars, advocates, and voting rights organizations have filed amicus briefs challenging the law in the hopes of expanding access to the ballot while still maintaining election integrity.

Powered by unfounded allegations of voter fraud – an issue often conflated with election administration issues, such as list maintenance problems and voter caging efforts – voter ID laws like the one being challenged, are a solution in search of a problem. They end up effectively inhibiting voters rather than encouraging them.

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For example, a recent study by the Washington Institute for the Study of Ethnicity and Race noted, “Institutional burdens to participating have long been established to have the largest impact on individuals who have fewer resources, less education, smaller social networks and are more institutionally isolated”.

“Increasing barriers to voting are likely to have the largest impact on these groups, and we find strong evidence to support our thesis that strict voter identification laws would substantially effect these groups negatively.”

Last Tuesday, the 24 filers challenging the voter ID law (including Project Vote) put forth several arguments that ultimately assert that Indiana's law hurts more voters than it helps. The following are some points from the amicus briefs:

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Voter fraud is exceedingly rare (Current and Former Secretaries of State; Lawyers Committee for Civil Rights Under Law, et al.; Association of Community Organizations for Reform Now; Brennan Center, et al.)

Indiana's voter ID law is an unnecessary response to the unlikely threat of polling place fraud, the Brennan Center, Project Vote and other organizations wrote. None of the examples cited by the court of appeals indicate genuine voter fraud, the brief said.

Voter ID puts a burden on voters (League of Women Voters; Rock the Vote, et al.; Current and Former Secretaries of State; Lawyers Committee for Civil Rights Under Law et al.; R. Michael Alvarez, et al.; Rep. Keith Ellison; Asian American Legal Defense; and NAACP Legal Defense Fund)

- Several briefs emphasized the impact of voter ID on minority voters: “A large percentage of Indiana’s African-American voters are included in the more than 2.5 million Indiana households that do not own a motor vehicle, and they most likely will not have the requisite photo ID for voting purposes,” wrote Rep. Keith Ellison (D-MN), who recently introduced legislation banning voter ID laws. “A 6-point gap exists in access to valid photo ID with 84.2% of White registered voters reporting proper ID, compared to 78.2% of Black registered voters,” the Washington Institute Study reported.

- Young voters would be “severely” affected, according to the Rock the Vote amicus brief, which cited a study that showed young people are more likely to vote if allowed to register and vote at campus addresses.

- The R. Michael Alvarez amicus brief cited three studies that show the impact of voter ID on the elderly.

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Voter ID is an unconstitutional poll tax (Rep. Ellison; Mexican American Legal Defense and Education Fund)

-“The striking similarities between voter identification laws and the poll taxes this Court rejected less than half a century ago demonstrate that identification requirements are unconstitutional regardless of the level of scrutiny the Court applies. Nevertheless, voter identification requirements should be subject to the same searching scrutiny this Court historically has applied to statutes that target the franchise,” MALDEF wrote.

- Voter ID laws like Indiana's have been rejected by Congress for unconstitutionality, Ellison wrote. “Indeed, the Senate Conference Report on HAVA highlights this concern: [A]s with the other methods of disenfranchisement in American history, such as literacy tests and poll taxes, the photo identification requirement would present barriers to voting and have a chilling effect on voter participation. There are voters who simply do not have identification and requiring them to purchase photo identification would be tantamount to requiring them to pay a poll tax.”

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