Edwards v. South Carolina Appellants' Brief

    Nos. 07-21 and 07-25

in  tfje Supreme Court of tf)e Umteb States
William Crawford, et al., petitioners

V.

Marion County E lection Board, et al.

Indiana Democratic Party, et al., petitioners
v.

Todd Rokita, I ndiana Secretary of State, et al.

ON WRITS OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 
SUPPORTING RESPONDENTS

Paul D. Clement 
Solicitor General 

Counsel of Record 
Grace Chung Becker 

Acting Assistant Attorney 
General

Gregory G. Garre 
Deputy Solicitor General

Douglas Hallward-Driemeier 
Assistant to the Solicitor 

General
Diana K. F lynn 
Christy A. McCormick 

Attorneys
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217



QUESTION PRESENTED

Whether an Indiana statute mandating that those 
seeking to vote in person produce a government-issued 
photo identification on its face violates the First and 
Fourteenth Amendments to the Constitution.

(I)



TABLE OF CONTENTS

Interest of the United S tates.......................................................... 1
Statem ent.......... ..............................................   2
Summary of argument ................. ......................................... 8
Argument .....................    10

I. Petitioners have failed to show that the Voter ID
Law is invalid on its fa c e ................................................11

II. The Voter ID Law is a reasonable administrative
rule that furthers the State’s compelling interest in 
combating voter fraud .................................  18
A. States have broad authority to establish

rules to ensure the integrity of elections ........ 18
B. Because the Voter ID Law is neither

discriminatory nor a severe burden on the 
franchise, heightened scrutiny is 
unwarranted............................................................20
1. The Voter ID Law does not discrim­

inate with respect to the right to vote . . . .  20
2. The Voter ID Law does not impose a

severe burden on the right to v o t e ............ 23
C. The Voter ID Law serves the State’s

compelling interest in preserving the 
integrity of the electoral process.........................28

III. HAVA’s identification requirements do not
preempt Indiana’s Voter ID Law ...............................31

Conclusion ......................................................33

Page

( H I )



IV

TABLE OF AUTHORITIES

Cases:

Anderson v. Celebrezze, 460 U.S. 780 (1983) ................. 9,19
Ayotte v. Planned Parenthood, 546 U.S. 320 (2006) . 13,16
Broadrick v. Oklahoma, 413 U.S. 601 (1973) ................... 13
Bullock v. Carter, 405 U.S. 134 (1972) ...............................  20
Burdick v. Takushi, 504 U.S. 428 (1992)  .......... passim
Carrington v. Rash, 380 U.S. 89 (1965) ...................... .. 18
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432

(1985) ...................................................................................  20
City of Mobile v. Bolden, 446 U.S. 55 (1980) ..................... 21
Clements v. Fashing, 457 U.S. 954 (1982) ................. 19
Common Cause/Ga. v. Billups, 504 F. Supp. 2d 1333

(N.D. Ga. 2007) .......................................    24
Cutter v. Wilkinson, 544 U.S. 709 (2005) ...........................  24
Eu v. San Francisco County Democratic Comm.,

489 U.S. 214 (1989) ............................................................  28
FECv. National Right to Work Comm., 459 U.S. 197

(1982) ...................................................................................  29
Foti v. McHugh, No. 05-16079, 2007 WL 2472340

(9th Cir. Aug. 28, 2007) ....................................................  23
Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006),

cert, denied, 127 S. Ct. 929 (2007) .................................  23
Gonzalez v. Arizona, 485 F.3d 1041 (9th Cir. 2 0 0 7 )........  24
Gonzalez v. Carhart, 127 S. Ct. 1610 (2007) ..................... 18
Harper v. Virginia Bd. of Elections, 383 U.S. 663 

(1966) .................................................................. ..

Page

26



V

Cases-Continued: Page

Harris v. McRae, 448 U.S. 297 (1980) ...............................  20
Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) . . . .  20 
Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969) ..  24 
Lassiter v. Northampton County Bd. of Elections,

360 U.S. 45 (1959) ..............................................................  18
Mason v. Missouri, 179 U.S. 328 (1900) ...........................  18
Massachusetts v. Oakes, 491 U.S. 576 (1989) ................... 12
McDonald v. Board of Election Commr’s, 394 U.S. 802 

(1969) ................................................................................... 14
Munro v. Socialist Workers Party, 479 U.S. 189

(1986) ................................................................................... 29
New York v. Ferher, 458 U.S. 747 (1982) ...........................  12
Norman v. Reed, 502 U.S. 279 (1992) .................................  19
Pabeyv. Pastrick, 816 N.E.2d 1138 (Ind. 2004) ................. 3
Personnel Adm’rv. Feeney, 442 U.S. 256 (1979) ............  21
Purcell v. Gonzalez, 127 S. Ct. 5 (2006) ....................... 18, 28
Reno v. Bossier Parish Sch. Bd,., 520 U.S. 471 (1996) . . .  21
Reynolds v. Sims, 377 U.S. 533 (1964) .........................  18,28
Rodriguez v. Popular Democratic Party, 457 U.S. 1

(1982) ................................................................................... 26
Rust v. Sullivan, 500 U.S. 173 (1991) .................................  16
Sabri v. United States, 541 U.S. 600 (2004) ................. 12,13
United States v. Raines, 362 U.S. 17 (1960) ........  12,13,14
United States v. Salerno, 481 U.S. 739 (1987) . 10,11,16,17  
Village of Arlington Heights v. Metropolitan Hous.

Dev. Corp., 429 U.S. 252 (1977) .....................................  21
Village of Hoffman Estates v. Flipside, Hoffman 

Estates, Inc., 455 U.S. 489 1982) 11,12



VI

Virginia v. Hicks, 539 U.S. 113 (2003) ...............................  12
Worth v. Seldub, 422 U.S. 490 (1975) ...........................  12,13
Washington v. Davis, 426 U.S. 229 (1976) ......................  21
Wisconsin v. City of New York, 517 U.S. 1 (1996) ..........  21

Cases-Continued: Page

Constitution, statutes and regulations:

U.S. Const.:
Art. I, § 4, Cl. 1 ................................................................... 18
Amend. I .............................................................................  12
Amend. XIV .......................................................................  21

Help America Vote Act of 2002, Pub. L. No. 252,116 
Stat. 1666 (42 U.S.C. 15301
etseq.)  ........................................................................... 2

42 U.S.C. 15483(a)(4)(A) (Supp. IV 2 0 0 4 )................... 3
42 U.S.C. 15483(a)(5)(A) (Supp. IV 2 0 0 4 )..............  2, 3
42 U.S.C. 15483(b) (Supp. IV 2 0 0 4 ).............................  5
42 U.S.C. 15483(b)(l)-(4) (Supp. IV 2004) ................. 3
42 U.S.C. 15483(b)(2)(A) (Supp. IV 2004) ..........  2,3
42 U.S.C. 15483(b)(2)(A)(i)(II) (Supp. IV 2004) 17, 32
42 U.S.C. 15483(b)(3)(A) (Supp. IV 2004) . . . .  2, 3, 32
42 U.S.C. 15484 (Supp. IV 2004) .....................  3,10,32
42 U.S.C. 15485 (Supp. IV 2004) ...............................  32
42 U.S.C. 15511 (Supp. IV 2004) .................................  2

National Voter Registration Act of 1993, 42 U.S.C.
1973gg et seq.......................       2

42 U.S.C. 1973gg(b)(l) ..................................................  2
42 U.S.C. 1973gg(b)(3) ..................    2
42 U.S.C. 1973gg-3(a)(l)................................................  2



VII

42 U.S.C. 1973gg-3(c)(2)(B)(ii) .................................... 2
42 U.S.C. 1973gg-4(c)(l)(A) .......................................... 2
42 U.S.C. 1973gg-4(c)(l)(B) .......................................... 2
42 U.S.C. 1973gg-7(b)(l) .............................................. 2
42 U.S.C. 1973gg-9 ............................................................
42 U.S.C. 1973gg-10(c) .................................................. 2

Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.:
42 U.S.C. 19731(c) ..............................................................  2
42 U.S.C. 19731(e) .......................................   2

Pub. L. No. 103-2005, § 4, 2005 Ind. Acts 1948 ..................  4
Pub. L. No. 109-2005, 2005 Ind. Acts 2005 .........................  4
Ind. Code:

§3-5-2-40.5 ........................................................................... 4
§3-6-5-34 ............................................................................... 6
§3-10-1-7.2 ........................................................................... 5
§ 3 - l l -4 - l(a ) ....................      6
§ 3-ll-4-2(c) ........................................................................... 4
§ 3-ll-4-2(d) ......................................................................... 4
§3-11-4-3(2)........................................................................... 6
§3-11-8-25.1 .........................................................................  5
§ 3-ll-8-25.1(c) ....................................................................  4
§ 3-ll-8-25.1(d) ....................................................................  6
§ 3-ll-8-25.1(e) ....................................................................  5
§ 3-1 l-10-24(a)(3)-(5) ..........................................................  5
§ 3-ll-10-24(a)(4) ..............................................................  25
§ 3-ll-10-24(a)(5) ..............................................................  25

Statutes and regulations-Continued: Page



VIII

§ 3-ll-10-26(a).........................................     6
§3-ll-10-26(c) ..............     6
§3-11.7-5-1 ...............................................    6
§3-11.7-5-2.5(0) ..................................................................... 6
§ 9-24-16-10(b) .......... ................................................... ••• 5

8 C.F.R.:
Section 1274a.2(b)(l)(i) ...............................    24
Section 1274a.2(b)(l)(v) ....................................................  24

Miscellaneous:

R. Michael Alvarez et al., CalTech/MIT Voting
Technology Project, Working Paper #57, Version 2 
(Oct. 2007) < http://www.vote.caltech.
edu/media/documents/wps/vtp_wp57.pdf>................... 22

Commission on Federal Election Reform, Building 
Confidence in U.S. Elections: Report of the 
Commission on Federal Election Reform (2005)
< http://www.american.edu/ia/ cfer/report/
full_report.pdf> ................................................................  28

148 Cong. Reg. (2002):
p. 20,832 ...............................     30
p. 20,833       30
p. 20,834 ..............    32

Memorandum from Dale Simmons and Cody Kendall, 
Co-Counsels, Ind. Election Div., to J. Bradley King 
and Kristi Robertson, Co-Directors, Ind. Election 
Div., regarding Photo ID Interpretations (May 1,
2006) < http://www.in.gov/sos/elections/pdfs/ 
PhotoIDAdvisory_4_30_06.pdf> ............................... 5,16

Statutes and regulations-Continued: Page

http://www.vote.caltech
http://www.american.edu/ia/
http://www.in.gov/sos/elections/pdfs/PhotoIDAdvisory_4_30_06.pdf
http://www.in.gov/sos/elections/pdfs/PhotoIDAdvisory_4_30_06.pdf


IX

Miscellaneous—Continued: Page

Jeffrey Milyo, The Effects of Photographic 
Identification on Voter Turnout in Indiana:
A  County-Level Analysis, Report 10-2007 
(Nov. 2007) <http://www.truman. 
missouri.edu/uploads/publications/
report%2010-2007.pdf>   2,16

Todd Rokita, Ind. Sec’y of State, PhotoID.lN.gov: Are 
There Exemptions ':? <http://www.in.gov/sos/ 
photoid/exemptions.html> ...................................  6,15,16

United States Election Assistance Comm’n,
EAC Advisory 2005-006: Provisional Voting 
and Identification Requirements (2005)
< http://www.eac.gov/election/
advisories%20and%20guidanee/
EAC%20Advisory%2005-006%20
Provisional%20Voting.pdf> ............................................ 32

http://www.truman
http://www.in.gov/sos/photoid/exemptions.html
http://www.in.gov/sos/photoid/exemptions.html
http://www.eac.gov/election/


31n tf)e Supreme Court of tfje ®nttcti States;

No. 07-21

William Crawford, et al., petitioners 
v.

Marion County Election Board, et al.

NO. 07-25

Indiana Democratic Party, et al., petitioners

v.
Todd Rokita, Indiana Secretary of State, et al.

ON WRITS OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 
SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

This case concerns a facial challenge to a sta te  law  
that requ ires those who vote in person in federal e lec­
tions to p resen t a governm ent-issued  photo identifica­
tion and, m ore generally , the appropriate constitutional 
standard for review ing such a law. C ongress has en ­
acted num erous requirem ents, including registration  
and identification  requirem ents, designed  to “increase

(1)



2

the number of eligible citizens who register to vote” 
while simultaneously “protecting] the integrity of the 
electoral process.” 42 U.S.C. 1973gg(b)(l), (3). In 2002, 
Congress enacted the Help America Vote Act of 2002 
(HAVA), Pub. L. No. 107-252,116 Stat. 1666 (42 U.S.C. 
15301 et seq.), to establish and modernize various mini­
mum election administration standards for federal elec­
tions. Among other things, HAVA requires voters to 
provide proof of identification before registering or cast­
ing their first ballot, see 42 U.S.C. 15483(a)(5)(A), 
(b)(2)(A), (3)(A). The Attorney General is responsible 
for enforcing those provisions. 42 U.S.C. 1973gg-9, 
15511. The Attorney General also has authority to pros­
ecute voter fraud in federal elections. See, e.g., 42 
U.S.C, 1973i(c), (e), 1973gg-10(c).

STATEMENT

1. In 1993, Congress enacted the National Voter 
Registration Act of 1993 (NVRA), 42 U.S.C. 1973gg et 
seq. One of the Act’s purposes was to “increase the 
number of eligible citizens who register to vote.” 42 
U.S.C. 1973gg(b)(l). The NVRA facilitated voter regis­
tration by, among other things, requiring that state mo­
tor vehicle driver’s license applications also serve as 
voter registration applications. 42 U.S.C. 1973gg-3(a)(l). 
At the same time, Congress emphasized the need to 
“protect the integrity of the electoral process.” 42 
U.S.C. 1973gg(b)(3). Thus, the NVRA authorizes States 
to require information necessary to “assess the eligibil­
ity of the applicant.” 42 U.S.C. 1973gg-3(c)(2)(B)(ii), 
1973gg-7(b)(l). The Act also specifies that States may 
require individuals who have submitted their voter reg­
istration by mail “to vote in person” the first time they 
vote. 42 U.S.C. 1973gg-4(c)(l)(A), (B).



3

In 2002, Congress enacted HAVA. HAVA requires 
States to maintain accurate statewide voter registration 
lists, by making a “reasonable effort to remove regis­
trants who are ineligible to vote from the official list of 
eligible voters.” 42 U.S.C. 15483(a)(4)(A). In addition, 
HAVA requires States to verify the voter registration 
information of new registrants. 42 U.S.C. 15483(a)(5)(A), 
(b)(l)-(4). A State must require a person who submits a 
voter registration by mail to submit, either as part of the 
registration or the first time the individual votes, proof 
of identity. Ibid. Acceptable forms of identification 
under HAVA are “a current and valid photo identifica­
tion” or “a current utility bill, bank statement, govern­
ment check, paycheck, or government document that 
shows the name and address of the voter.” 42 U.S.C. 
15483(b)(2)(A), (3)(A). HAVA specifies that States may 
establish “more strict” standards that are not inconsis­
tent with the federal law’s “minimum requirements,” 42 
U.S.C. 15484.

2. Indiana determined that it faced a serious prob­
lem of actual and potential election fraud. In 2004, the 
Indiana Supreme Court invalidated the 2003 East Chi­
cago mayoral primary based on evidence of rampant 
absentee-ballot fraud, which included the use of vacant 
lot or former addresses and casting of ballots by nonres­
idents. Pabey v. Pastrick, 816 N.E.2d 1138,1145,1153. 
The Indiana Supreme Court found that the widespread 
fraud had rendered the election results “inherently de­
ceptive and unreliable.” Id. at 1151.

At the same time, the State was experiencing highly 
inflated voter registration rolls, thus creating a risk of 
further voter fraud. Indeed, a report shows that more 
than 35,000 deceased individuals were on the rolls state­
wide, and that, in 2004, the list of registered voters was



4

inflated by some 41%, including well over 200,000 dupli­
cate voter registrations. 07-21 Pet. App. 40 (Pet. App.). 
On April 7, 2005, the United States Department of Jus­

tice informed the Indiana Secretary of State that numer­
ous counties had registration totals that exceeded their 
voting age populations and noted the State’s obligations 
under federal law to maintain accurate voter registra­
tion lists. J.A. 312-313.1

Shortly thereafter, Indiana responded to those and 
other concerns by enacting a number of election re­
forms. In particular, Indiana enacted Senate Enrolled 
Act No. 483 (Voter ID Law), Ind. Pub. L. No. 109-2005, 
2005 Ind. Acts 2005, which, in order to deter voter fraud, 
requires those who vote in-person to present photo iden­
tification, issued either by the United States or Indiana. 
See Ind. Code 3-ll-8-25.1(c) and 3-5-2-40.5; Pet. App. 
106. On the same day, the legislature also placed new 
restrictions on absentee voting and the handling of ab­
sentee ballots. Ind. Pub. L. No. 103-2005 § 4, 2005 Ind. 
Acts 1948; Ind. Code 3-1 l-4-2(c), (d).

Under the Voter ID Law, an acceptable ID must con­
tain the photograph and name of the individual to whom 
it was issued, which must conform to that on the regis­
tration rolls. The ID must also have an expiration date 
and be either unexpired or have expired after the most 
recent general election. See Ind. Code. 3-5-2-40.5. Nu­
merous forms of identification may qualify, including an 
Indiana driver’s license, a non-license photo identifica­
tion issued by the State’s Bureau of Motor Vehicles 
(BMV), a student ID issued by a State-sponsored college

1 The United States Department of Justice brought suit against the 
State for violating the NVRA’s requirements regarding the removal of 
ineligible voters from the voter registration list. J.A. 309-317. That suit 
was resolved through a consent decree. J.A. 299-307.



5

or university, a passport, or military ID. See Dale 
Simmons and Cody Kendall, eo-eounsels, Indiana Elec­
tion Division, Photo ID Interpretations 3-4 (2006) 
{Photo ID Interpretations) <www.in.gov/sos/elections/ 
pdfs/PhotoIDAdvisory_4_30_06.pdf>.

Indiana provides alternatives for those wdio do not 
already possess an acceptable ID. The State will pro­
vide, free of charge, a photo ID that satisfies the re­
quirements to any individual who will be at least 18 
years of age at the next election and does not have a 
valid Indiana driver’s license. See Ind. Code 9-24-16- 
10(b). To obtain a photo ID, the BMV requires first­
time applicants to produce one primary document (such 
as a certified birth certificate or certain immigration 
documents), one secondary document (such as non-photo 
government documents, bank statements, school docu­
ments, or credit card statements), and one proof of Indi­
ana residency; or two primary documents and one proof 
of Indiana residency. Pet. App. 32-35.

For certain voters, state law provides ways for those 
individuals to vote without producing photo identifica­
tion. Those who are over 65, disabled, or confined by 
illness or injury may cast an absentee ballot by mail. 
See Ind. Code 3-ll-10-24(a)(3)-(5). Indiana’s photo ID 
law does not apply to absentee balloting by mail. See id. 
3-10-1-7.2, 3-11-8-25.1; Pet. App. 25.2 The Voter ID Law 
also does not apply to individuals “who vote in person at 
a precinct polling place that is located at a state licensed 
care facility where the voter resides.” Ind. Code. 3-11-8- 
25.1(e). See Pet. App. 25.

2 A voter easting an absentee ballot by mail the first time that person 
votes after having registered to vote by mail may be required to 
present identification pursuant to HAVA. See 42 U.S.C. 15483(b).

http://www.in.gov/sos/elections/pdfs/PhotoIDAdvisory_4_30_06.pdf
http://www.in.gov/sos/elections/pdfs/PhotoIDAdvisory_4_30_06.pdf


6

Those who object to having their pictures taken on 
religious grounds or do not have and cannot afford to 
obtain the necessary documentation may execute affida­
vits regarding their status and cast their ballots without 
presenting a photo ID. Ind. Code 3-11.7-5-2.5(c); Pet. 
App. 25-26. State law allows such individuals to vote 
without presenting an ID in either of two ways. First, 
such voters may exercise the right of any Indiana voter 
to vote an “absentee” ballot in person at the office of the 
circuit court clerk or board of elections on any date be­
tween 29 days and one day before the election. See Ind. 
Code 3-ll-4-l(a), 3-ll-10-26(a), (c). Voters who choose 
to do so may file an absentee application, cast their bal­
lot, and sign an affidavit of indigency or religious objec­
tion on a single trip to the local election office. See id. 3- 
11-4-3(2), 3-11.7-5-2.5(c); <www.in.gov/sos/photoid/ 
exemptions.html >.

Second, any voter who appears at the polls without 
the requisite identification, either because an exemption 
applies or because the person does not have an ID in his 
or her possession at the time, may cast a provisional 
ballot. See Ind. Code 3-ll-8-25.1(d). A provisional bal­
lot will be counted so long as the voter appears before 
the circuit court clerk or the county election board no 
later than ten days following the election, and executes 
an affidavit that he or she is the same person who cast 
the provisional ballot, and either: (a) presents accept­
able photo identification; or (b) executes an affidavit of 
indigency or religious objection. Ind. Code 3-11.7-5-1; 3-
11.7-5-2.5(c); Pet. App. 25-26. If the county election 
board rejects the ballot, the individual may obtain judi­
cial review in the local circuit court. Ind. Code 3-6-5-34.

3. Two different plaintiff groups—the Indiana Dem­
ocratic Party and the Marion County Democratic Cen­

http://www.in.gov/sos/photoid/exemptions.html_
http://www.in.gov/sos/photoid/exemptions.html_


7

tral Committee; and two elected officials, along with 
several nonprofit organizations, including the Indianap­
olis Branch of the NAACP, the United Senior Action of 
Indiana, the Indianapolis Resource Center for Inde­
pendent Living, and Concerned Clergy of Indianapo­
lis—brought suit alleging that the Voter ID Law violates 
the First and Fourteenth Amendments to the Constitu­
tion because it imposes an unwarranted burden upon the 
right to vote. On April 14, 2006, the district court 
granted summary judgment in favor of the State, hold­
ing that the Voter ID Law is a permissible time, place, 
and manner restriction on voting. Pet. App. 16-149.

The district court stressed that petitioners had failed 
to “introduce[] evidence of a single, individual Indiana 
resident who will be unable to vote as a result of [the 
Voter ID Law,] or who will have his or her right to vote 
unduly burdened by its requirements.” Pet. App. 18. 
The court found that petitioner’s expert report, which 
attempted to estimate the number of Indiana registered 
voters without a BMV-issued photo ID by comparing the 
voter registration rolls and BMV records in Marion 
County, was “utterly incredible and unreliable” and re­
flected “a conscious effort * * * to report the largest 
possible number” of impacted individuals. Id. at 60-62. 
To the extent that it shed any credible light on the mat­
ter, the court found that petitioners’ report actually sup­
ported the State’s position that its law had “no potential 
disparate impact * * * based on a voter’s race or edu­
cation level,” and that “to the extent [the report] is accu­
rate, [it] actually indicates that voters without photo 
identification are not significantly more likely to come 
from low income segments of society.” Id. at 70, 72.

4. The court of appeals affirmed. Pet. App. 1-15. 
The court concluded that the Voter ID Law was not sub­



8

ject to strict scrutiny because the record at most re­
vealed only a “slight” effect of eligible voters “dis- 
enfranchis[ing] themselves,” and that negligible concern 
was outweighed by the State’s interest in combating 
“voting fraud.” Id. at 6-7. Furthermore, the court ob­
served that the State was free to “take preventive ac­
tion” to deter voter fraud and, with it, the dilution of 
legitimate votes. Id. at 8.

Judge Evans dissented. He would have subjected 
the Voter ID Law to “strict scrutiny” or at least “strict 
scrutiny light,” Pet. App. 11, and concluded that the law 
failed that test, see id. at 11-15.

5. A petition for rehearing en banc was denied, with 
four judges dissenting. Pet. App. 151-155.

SUMMARY OF ARGUMENT

The court of appeals correctly held that petitioners 
have not carried the heavy burden of showing that the 
Voter ID Law is invalid on its face.

I. This Court requires a particularly demanding 
showing in facial challenges because such attacks run 
counter to numerous principles of judicial restraint: pru­
dential standing, ripeness, and invalidating no more of 
a legislature’s enactment than necessary. Petitioners’ 
facial challenge to the Voter ID Law raises all of those 
concerns. Indeed, petitioners have failed to identify a 
single individual in Indiana who would vote if, but only 
if, the Voter ID law were invalidated. And, as the dis­
trict court found, petitioners have utterly failed to show 
that the Voter ID law has had a discriminatory impact 
on any segment of society. Invalidating the Indiana law 
on its face would therefore require this Court to invert 
the analysis that it customarily applies to facial chal­
lenges, in which a law is constitutional unless there are



9

no circumstances in which it can be constitutionally ap­
plied.

II. In any event, the Voter ID Law clearly satisfies 
the inquiry established by this Court for reviewing the 
constitutionality of election laws. Because any election 
regulation necessarily imposes some burden on voters’ 
exercise of the franchise, the Court has rejected the ar­
gument that “a law that imposes any burden upon the 
right to vote must be subject to strict scrutiny.” 
Burdick v. Takushi, 504 U.S. 428, 432 (1992). Instead, 
“when a state election law provision imposes only ‘rea­
sonable, nondiscriminatory restrictions’” on voting, 
“‘the State’s important regulatory interests are gener­
ally sufficient to justify’ the restrictions.” Id. at 434 
(quoting Anderson v. Celebrezze, 460 U.S. 780, 788 
(1983)).

Petitioners have failed to demonstrate that the Voter 
ID Law imposes a severe burden on the right to vote. 
Photo ID requirements are ubiquitous in American soci­
ety today. For the 99% of voters in Indiana who already 
have a photo ID, the law requires no more than that the 
voter present the ID at the polls. For the less than 1% 
of Indiana voters who do not yet have an ID, the State 
offers them such an ID free of charge. And for those 
who are most likely to find it difficult to obtain even a 
free ID, state law provides alternative methods of vot­
ing that do not require presenting identification. Be­
cause petitioners have not shown that the Voter ID Law 
imposes a severe burden on the right to vote, it is sub­
ject to more generous review under the Burdick balanc­
ing analysis.

Any burden that is imposed by the Voter ID Law is 
more than justified by the State’s interest in combating 
in-person voter fraud. Voter fraud itself constitutes an



10

impairment of the right to vote. In a close race, even a 
handful of fraudulent votes could invalidate the entire 
election, as has happened in Indiana. Moreover, the 
well-publicized fact of voter registration lists with fraud­
ulent, deceased, or otherwise invalid names undermines 
the public confidence in the electoral process that is the 
lifeblood of democratic institutions. Particularly given 
that in-person voter fraud is difficult to detect without 
rigorous ID requirements and that as a practical matter 
it is important for the State to deter, not just detect and 
punish, voter fraud, the State has amply demonstrated 
its interest in passing its Voter ID Law.

III. HAVA does not preempt the Voter ID Law. 
HAVA explicitly states that its requirements do not pre­
vent States from adopting administrative requirements 
that are “more strict” than HAVA’s. 42 U.S.C. 15484. 
While Indiana’s ID requirement is “more strict” than 
HAVA’s, it is in no way “inconsistent with the Federal 
requirements.” Ibid. A contrary interpretation would 
deprive the States of the flexibility that Congress in­
tended to preserve under HAVA in enacting laws that 
would modernize and improve the electoral process as 
our democracy enters the 21st century.

ARGUMENT

Petitioners elected to bring a facial challenge to Indi­
ana’s Voter ID Law, and to bring such an action before 
the statute had ever been implemented in practice. Such 
a challenge is “the most difficult challenge to mount.” 
United States v. Salerno, 481 U.S. 739, 745 (1987). Peti­
tioners’ facial challenge is fatally undercut by the undis­
puted fact that they have failed to identify a single indi­
vidual in Indiana whose ability to vote depends on that 
law. In light of that fact, petitioners’ challenge flunks



11

any reasonable formulation of this Court’s standard for 
evaluating facial constitutional challenges to legislative 
acts. Petitioners would avoid that conclusion by having 
this Court revamp the settled framework for evaluating 
First Amendment challenges to election laws and hold 
that a law that imposes any burden on the right to 
vote—indeed, as in this case, even a hypothetical one 
—subjects a law to strict scrutiny. This Court rejected 
precisely such a proposal in Burdick, 504 U.S. at 432, 
and petitioners provide no reason for the Court to re­
verse course here. Any individual is free to bring an as- 
applied challenge to Indiana’s Voter ID Law grounded 
in their particular circumstances or actual experience 
and attempt to demonstrate that the law imposes an 
unconstitutional burden on his or her right to vote. But 
the court of appeals properly rejected petitioners’ facial 
challenge to the Voter ID Law on the record here.
I. PETITIONERS HAVE FAILED TO SHOW THAT THE

VOTER ID LAW IS INVALID ON ITS FACE

A. The only question presented for the Court’s re­
view is the constitutionality of the Voter ID Law on its 
face. See Dem. Br. i; Crawford Br. i. This Court long 
ago explained that “[a] facial challenge to a legislative 
Act is * * * the most difficult challenge to mount.” 
Salerno, 481 U.S. at 745. “The fact that [a statute] 
might operate unconstitutionally under some conceiv­
able set of circumstances is insufficient to render it 
wholly invalid.” Ibid. Rather, in the typical case, to suc­
ceed in a facial challenge, “the challenger must establish 
that no set of circumstances exists under which the Act 
would be valid.” Ibid. See Village of Hoffman Estates



12

v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 
(1982).3

The rule disfavoring facial invalidation is animated 
by several related principles of judicial restraint. First, 
as a matter of prudential standing, “a person to whom a 
statute may constitutionally be applied may not chal­
lenge that statute on the ground that it may conceivably 
be applied unconstitutionally to others in situations not 
before the Court.” New York v. Ferber, 458 U.S. 747, 
767 (1982); Warth v. Seldin, 422 U.S. 490, 499 (1975); 
United. States v. Raines, 362 U.S. 17, 21 (1960). Second, 
facial invalidation raises ripeness concerns because it 
invites “‘premature interpretation] of statutes’ on the 
basis of factually barebones records.” Sabri v. United

3 Although the Court has recognized that “[t]he First Amendment 
doctrine of overbreadth is an exception to [the] normal rule regarding 
the standards for facial challenges,” Virginia v. Hicks, 539 U.S. 113,118 
(2003), petitioners’ invocation of the First Amendment as a source of 
their constitutional claims, Dem. Br. 1, 44; Crawford Br. 2, does not 
bring them within that exception. The overbreadth doctrine has been 
applied “only where its effect might be salutary,” Massachusetts v. 
Oakes, 491 U.S. 576,582 (1989) (plurality opinion), such as, for example, 
where threat of enforcement of a law that “punishes * * * protected 
free speech,” “especially” one that “imposes criminal sanctions,” may 
“deter or ‘chill’ ” the speech, and individuals cannot be expected to “un­
dertake the considerable burden (and sometimes risk) of vindicating 
their rights through case-by-case adjudication.” Hicks, 539 U.S. at 118- 
119. The Voter ID Law does not threaten to “punish” anyone, and 
there is no “risk” to an individual (or association with standing to re­
present that individual) who challenges the law as applied to their 
circumstances. Moreover, the ability to cast a provisional ballot means 
even someone unsure of the law need not suffer any loss of voting 
rights. In any event, to the extent the doctrine applies, petitioners in­
ability to identify a single individual who is unable to vote as a result of 
the Voter ID Law fatally undercuts any suggestion of overbreadth 
here.



13

States, 541 U.S. 600, 609 (2004) (quoting Raines, 362 
U.S. at 22). Third, facial invalidation conflicts with the 
Court’s practice not to “nullify more of a legislature’s 
work than is necessary.” Ayotte v. Planned Parenthood, 
546 U.S. 320, 329 (2006). Relatedly, a facial challenge 
short-circuits the process by which potential constitu­
tional questions are avoided when a statute is narrowed 
through the course of its application. Broadrick v. Okla­
homa, 413 U.S. 601, 613 (1973).

B. Petitioners’ facial challenge to the Voter ID Law 
highlights all of those concerns.

1. As respondents have explained, serious questions 
exist regarding petitioners’ constitutional standing to 
bring this suit at all. See Resp. Br. 14-19. Petitioners’ 
suit also implicates prudential standing concerns be­
cause of the significant divergence between the facts on 
which petitioners base their claims of standing and the 
types of injuries they highlight in their broad attack on 
the Voter ID Law. Cf. Warth, 422 U.S. at 499 (“the 
plaintiff generally must assert his own legal rights and 
interests, and cannot rest his claim to relief on legal 
rights or interests of third parties”). For example, 
whereas the Democratic Party of Indiana asserts asso- 
ciational standing to represent individuals affiliated with 
the party, Dem. Br. 58-59, each of the individual voters 
the party identified as being burdened by the law and 
who consented to representation by the party is over 65 
years of age and therefore has a right under Indiana law 
to vote absentee by mail, without producing a photo ID. 
See Pet. App. 80-81; p. 5, supra. Those voters, because 
they have that option, would seem to have a markedly 
weaker claim. Indeed, the party’s argument with re­
spect to the constitutional adequacy of that alternative 
voting method is confined to a footnote, see Dem. Br. 32



14

n.17, and the party instead focuses its argument on 
those who “simply cannot vote” or who “will not * * * 
successfully complete all the steps needed to vote.” Id. 
at 23; see id. at 31-41. Yet, the party was unable to iden­
tify any such individual, much less one who it could rep­
resent through associational standing. See Pet, App. 80- 
81. Similarly, the individual plaintiffs themselves have 
failed to demonstrate that they have been directly in­
jured by the Voter ID Law. See Resp. Br. 15-16.

2. Petitioners’ inability to identify any concrete 
harms stemming from the Voter ID Law renders peti­
tioners’ arguments largely theoretical and speculative. 
Petitioners failed to identify any individual who would 
not vote as a result of the statute, Pet, App. 80-81, 94; id. 
at 5, and rely instead on their mere assertion that “there 
can be no doubt that these people exist.” Dem. Br. 59; 
Crawford Br. 26, 27, 32, 37 (“the Indiana law will deter 
some people from voting” (quoting the court of appeals’ 
opinion, Pet. App. 3)). But, as this Court has stressed, 
“[t]he delicate power of pronouncing an [act] unconstitu­
tional is not to be exercised with reference to hypotheti­
cal cases thus imagined.” Raines, 362 U.S. at 22. See 
McDonald v. Board of Election Co?nmr’s, 394 U.S. 802, 
808 (1969) (“Faced as we are with a constitutional ques­
tion, we cannot lightly assume, with nothing in the re­
cord to support such an assumption, that [a statute] has 
in fact precluded [petitioners] from voting.”).

The abstract quality of petitioners’ challenge is exac­
erbated by their decision to attack the statute before it 
went into effect. Without any experience under the stat­
ute, petitioners premised their challenge on an expert’s 
statistical analysis of registration rolls and BMV re­
cords. But the district court found that report to be 
“utterly incredible and unreliable.” Pet. App. 60. And,



15

in any event, the report revealed “no potential disparate 
impact * * * based on a voter’s race or education level 
and only a small potential disparate impact based on 
income level.” Id. at 70. Having failed to provide proof 
of a burden on voting in the district court, petitioners 
now ask this Court to decide the constitutionality of the 
Voter ID Law on the basis of reports that post-date the 
district court ruling and have never been subjected to 
cross-examination or peer review. See, e.g., Dem. Br. 
xiv-xvi (citing no fewer than 11 publications that post­
date the district court decision); id. at 34-35 (citing Oct­
ober 2007 “working paper” as “evidence” that Indiana’s 
law “placed significant burdens on voters” (quotation 
marks omitted)); id. at 12 (citing November 2006 report 
as evidence regarding incidence of lack of identification); 
Crawford Br. 15, 40 n.19, 41 n.20 (same). As we discuss 
below, see p. 22, infra, an even more recent unpublished 
study that focuses exclusively on Indiana’s experience 
points in the opposite direction. But, more fundamen­
tally, such speculation and as-yet untested evidence can­
not satisfy the standard for proving a statute facially 
unconstitutional.

The premature nature of petitioners’ challenge has 
also caused them and their amici to posit constructions 
of the Voter ID Law that are contrary to the State’s own 
interpretation and application of the statute. For exam­
ple, the Democratic Party repeatedly asserts (Dem. Br. 
11, 16) that indigent persons without identification and 
those with religious objections may not execute affida­
vits to that effect before the election, at the same time 
the individual casts an in-person absentee ballot. See 
also Lawyers’ Comm. Br. 27 (same). But the State’s 
published guidance is to the contrary. See <www.in.gov 
/sos/photoid/exemptions.html> . Likewise, the League

http://www.in.gov/sos/photoid/exemptions.html
http://www.in.gov/sos/photoid/exemptions.html


16

of Women Voters suggests (Br. 24-29) that recently 
married individuals, or others whose IDs vary slightly 
from the names on the rolls, will be rejected because the 
names do not “conform,” but the Indiana Election Divi­
sion’s Guidance says otherwise. Photo ID Interpreta­
tions 2.

3. The remedy petitioners seek—facial invalidation 
of the Voter ID Law—also bears no relation to the con­
stitutional harms petitioners assert. If, as petitioners 
contend, it is unconstitutional to require a homeless per­
son to vote absentee in person (or at the polls with sub­
sequent validation by affidavit) because he is unable to 
obtain a BMV-issued ID (see, e.g., Crawford Br. 18 (cit­
ing case of Kristjan Kogerma, J.A. 67)), then a narrower 
remedy would be to enjoin the BMV from denying an ID 
on the ground that a person has no address, or to enjoin 
the IDOH from collecting a search fee for a birth certifi­
cate in that circumstance. Such challenges should await 
actual circumstances in which those difficulties may or 
may not arise. But at a minimum, as the Court reiter­
ated in Ayotte, courts should “enjoin only the unconsti­
tutional applications of a statute while leaving other ap­
plications in force.” 546 U.S. at 329.

C. Petitioners not only have not identified a single 
individual who would be unable to vote because of the 
Voter ID Law, but they make no serious argument that 
the Voter ID Law imposes an unconstitutional burden 
on the more than 99% of Indiana voters who already 
possess an ID that satisfies the statutory requirements. 
Accordingly, instead of attempting to carry the “heavy 
burden,” Rust v. Sullivan, 500 U.S. 173, 183 (1991), to 
“establish that no set of circumstances exists under 
which the Act would be valid,” Salerno, 481 U.S. at 745, 
petitioners effectively ask this Court to invert the set-



17

tied inquiry and hold that the Voter ID Law must be 
struck down in toto “[e]ven if only a single citizen is de­
prived completely of her right to vote.” Dem. Br. 33 
(emphasis added; brackets in original) (quoting dissent 
from denial of rehearing, Pet. App. 154); see Crawford 
Br. 37 (focusing on the “burdens on individual voters”); 
id. at 38 (“[t]hat Indiana’s photo identification law may 
affect few voters is irrelevant”). That argument not only 
has no footing in this Court’s case law, but could have an 
extraordinary impact on election laws.

For example, although the Democratic Party sug­
gests that HAVA’s ID requirement (see p. 3, supra) is a 
valid example of an acceptable “less-restrictive voter- 
identification rule[],” Dem. Br. 37-39, 51, petitioners’ 
theory of the case—that an election law is invalid if one 
can hypothesize any single individual who would be pre­
vented from voting by the burden it creates—would cast 
serious doubt on the constitutionality of HAVA as well. 
HAVA’s ID requirements pose no serious obstacle to the 
99% of the population with photo IDs or alternative 
means of proving their residence and identification. But 
one can just as easily hypothesize a theoretical individ­
ual who would be prevented from registering to vote by 
HAVA because he lacks the documentation it requires. 
Compare 42 U.S.C. 15483(b)(2)(A)(i)(II) (accepting non­
photo ID that “shows the name and address of the 
voter”), with J.A. 67 (affidavit of individual denied BMV- 
issued ID because he “did not have anything on it with 
proof of my address”). But that is not the test. Rather, 
to make out a facial challenge, it is petitioners’ burden 
to “establish that no set of circumstances exists under 
which the Act would be valid,” Salerno, 481 U.S. at 745.

Because petitioners have not come close to meeting 
the high threshold set for facial invalidation of a legisla-



18

live act, petitioners’ facial challenge to the Voter ID 
Law must be rejected. As with any statute, the Voter 
ID Law remains “open to a proper as-applied challenge 
in a discrete case,” Gonzales v. Carhart, 127 S. Ct. 1610, 
1639 (2007), but this facial challenge lacks merit.
II. THE VOTER ID LAW IS A REASONABLE ADMINISTRA­

TIVE RULE THAT FURTH ERS THE STATE’S COM PEL­
LING IN TEREST IN COMBATING VOTER FRAUD

A. States Have Broad A uthority  To E stablish Rules To E n ­
sure The In teg rity  Of E lections

The Constitution expressly provides that state legis­
latures are to prescribe “[t]he Times, Places and Man­
ner of holding Elections for Senators and Representa­
tives.” U.S. Const. Art. I, § 4, Cl. 1. And this Court has 
long recognized that States “have broad powers to de­
termine the conditions under which the right of suffrage 
may be exercised,” Carrington v. Rash, 380 U.S. 89, 91 
(1965) (quoting Lassiter Northampton County Bd. of 
Elections, 360 U.S. 45, 50 (1959)); Mason v. Missouri, 
179 U.S. 328, 335 (1900), and a “compelling interest in 
preserving the integrity of [the] election process,” 
Purcell v. Gonzalez, 127 S. Ct. 5, 7 (2006) (per curiam) 
(citation omitted). This authority reflects the fact that 
“[v]oter fraud drives honest citizens out of the demo­
cratic process and breeds distrust of our government,” 
and that “[t]he right of suffrage can be denied by a de­
basement or dilution of the weight of a citizen’s vote just 
as effectively as by wholly prohibiting the free exercise 
of the franchise.” Ibid, (quoting Reynolds v. Sims, 377 
U.S. 533, 555 (1964)).

Because States must necessarily “play an active role 
in structuring elections” to ensure that they are “fair 
and honest * * * rather than chaos,” and because



19

“[ejection laws will invariably impose some burden upon 
individual voters,” this Court has stressed that a citi­
zen’s “right to vote in any manner” is not “absolute.” 
Burdick, 504 U.S. at 433. Likewise, the Court has held 
that not every voting regulation that “imposes [a] bur­
den upon [individual voters] must be subject to strict 
scrutiny.” Id. at 432. See Clements v. Fashing, 457 U.S. 
957 965-966 (1982) (plurality opinion); Bullock v. Carter, 
405 U.S. 134,143 (1972). Rather, “a more flexible stan­
dard applies.” Burdick, 504 U.S. at 434. Under that 
approach, “when a state election law provision imposes 
only ‘reasonable, nondiscriminatory restrictions’ ” on an 
individual’s right to vote, ‘“the State’s important regula­
tory interests are generally sufficient to justify’ the re­
strictions.” Ibid, (quoting Anderson, 460 U.S. at 788). 
In contrast, when the right to vote is “subjected to ‘se­
vere’ restrictions,” “the regulation must be ‘narrowly 
drawn to advance a state interest of compelling impor­
tance.’” Ibid, (quoting Norman v. Reed, 502 U.S. 279, 
289 (1992)).

Petitioners point to the fact that Burdick mentions 
the “extent to which [the States’] interests make it nec­
essary to burden the plaintiffs rights,” Burdick, 504 
U.S. at 434 (quoting Anderson, 460 U.S. at 789), and 
mistakenly characterize that and similar statements as 
establishing a “less restrictive]]” alternative standard 
for analyzing electoral regulations. Dem. Br. 26; id. at 
27 (emphasizing “necessary”)', id. at 41 (same). But this 
Court rejected that interpretation of the standard in 
Burdick itself, in which it characterized the dissenting 
opinion’s test as a form of “strict scrutiny” analysis pre­
cisely because it faulted the State for failing to pursue 
“less drastic means.” 504 U.S. at 440 n.10. In short, 
because election laws “invariably impose some burden



20

upon individual voters,” heightened scrutiny is reserved 
only for those laws that impose “‘severe’ restrictions” on 
the right to vote. Id. at 433-434 (emphasis added).

B. Because The Voter ID Law Is N either D iscrim inatory  
Nor A Severe Burden On The F ranchise, H eightened 
Scrutiny Is U nw arranted

Petitioners and their amici argue that the Indiana 
Voter ID Law imposes any number of severe burdens on 
the right to vote. But as the district court found, the 
fact is that, “[djespite apocalyptic assertions of whole­
sale voter disenfranchisement, [petitioners] have pro­
duced not a single piece of evidence of any identifiable 
registered voter who would be prevented from voting” 
by the Indiana law. Pet. App. 101.

1. The Voter ID Law does not discriminate with respect 
to the right to vote

a. Petitioners contend that the Voter ID Law should 
be subjected to heightened scrutiny because it has a 
“discriminatory impact” on “persons in lower socioeco­
nomic brackets.” Dem. Br. 35-36. That argument fails 
on at least two counts. First, the Court has refused to 
recognize poverty, without more, as a suspect classifica­
tion that warrants heightened scrutiny. Harris v. 
McRae, 448 U.S. 297, 323 (1980). And the same is true 
of the other groups that are alleged to suffer disparate 
impact of the Voter ID Law: the elderly and disabled. 
Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83 (2000) 
(age); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 
432, 441-442 (1985) (mental retardation). Second, even 
with respect to a protected class, disparate impact alone 
does not trigger heightened scrutiny under the Four- 
teenth Amendment. Personnel Adm’r v. Feeney, 442 
U.S. 256, 271-272 (1979); Village of Arlington Heights v.



21

Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977); 
Washington v. Davis, 426 U.S. 229, 237-239 (1976). 
Rather, “[sjtrict scrutiny of a classification affecting a 
protected class is properly invoked only where a plaintiff 
can show intentional discrimination by the Government.” 
Wisconsin v. City of New York, 517 U.S. 1,18 n.8 (1996). 
Petitioners offer no evidence that the Indiana legisla­
ture harbored such an improper purpose.

Petitioners contend that, notwithstanding the gen­
eral rule that a plaintiff must show discriminatory in­
tent, “[u]nder the Burdick standard, election laws that 
exhibit * * * discriminatory effects” are subject to 
heightened scrutiny, and “must be justified as necessary 
to serve very substantial state interests.” Dem. Br. 36. 
But this Court has applied the general equal protection 
rule to voting cases as well. As the Court recognized in 
Reno v. Bossier Parish School Board, 520 U.S. 471 
(1996), “[sjince 1980, a plaintiff bringing a constitutional 
vote dilution challenge, whether under the Fourteenth 
or Fifteenth Amendment, has been required to establish 
that the State or political subdivision acted with a dis­
criminatory purpose,” id. at 481 (citing City of Mobile v. 
Bolden, 446 U.S. 55, 62, 66 (1980) (plurality opinion)).

b. In any event, petitioners have failed to demon­
strate a discriminatory impact as well. The district 
court found that petitioners’ own expert’s report regard­
ing the effect of the Voter ID Law—which it found “ut­
terly incredible and unreliable,” Pet. App. 60—neverthe­
less “revealed no potential disparate impact * * * 
based on a voter’s race or education level and only a 
small potential disparate impact based on income level.” 
Id. at 70; see id. at 72; J.A. 279 (expert’s deposition tes­
timony: “we could not conclude one way or the other in 
terms of the distinction in terms of racial categories”).



22

That failure of proof should be the end of the matter for 
purposes of determining what level of review applies.

In an attempt to fill that evidentiary void, petitioners 
rely in this Court on studies and reports produced since 
the trial court litigation that have yet to be subjected to 
cross-examination or peer review. See Dem. Br. 12 & 
n.8 (citing Nov. 2006 survey); Crawford Br. 15, 40 n.19, 
41 n.20 (same). There is no basis to consider such extra­
record materials, but the most recent studies neverthe­
less undermine petitioner’s assertion of disparate im­
pact. The Cal. Tech./M.I.T. study petitioners cite as 
evidence of the statute’s burden (Dem. Br. 34), actually 
states that “there does not seem to be a discriminatory 
impact of the requirements for some subgroups, such as 
nonwhite registered voters.” R. Michael Alvarez et ah, 
CalTech/MIT Voting Technology Project, Working Pa­
per #57, Version 2, at 21 (Oct. 2007) <http://www.vote. 
caltech.edu/media/documents/wps/vtp_wp57.pdf>. 
Likewise, the one report that has been conducted look­
ing exclusively at voting in Indiana before and after the 
Voter ID Law found “no consistent evidence that coun­
ties that have higher percentages of minority, poor, el­
derly, or less-educated population suffer any reduction 
in voter turnout relative to other counties.” Jeffrey 
Milyo, The Effects of Photographic Identification on 
Voter Turnout in Indiana: A County-Level Analysis, 
Report 10-2007 1 (Nov. 2007) (Milyo Report) < http:// 
www.truman.missouri.edu/uploads/publications/report 
%2010-2007.pdf. >

Thus, even if impact alone were sufficient to warrant 
applying heightened scrutiny to the Voter ID Law, there 
is no evidence to support a finding of such impact.

http://www.vote.caltech.edu/media/documents/wps/vtp_wp57.pdf
http://www.vote.caltech.edu/media/documents/wps/vtp_wp57.pdf
http://www.truman.missouri.edu/uploads/publications/report%2010-2007.pdf._
http://www.truman.missouri.edu/uploads/publications/report%2010-2007.pdf._
http://www.truman.missouri.edu/uploads/publications/report%2010-2007.pdf._


23

2. The Voter ID Law does not impose a severe burden on 
the right to vote

a. Petitioners have also failed to show that the Voter 
ID Law imposes a severe burden on the right to vote. It 
is commonplace in virtually every polling place in Amer­
ica that voters are asked to identify themselves before 
they may cast a vote. Petitioners cannot seriously take 
issue with a requirement that someone arriving at the 
polls produce some indication of identity and residence. 
Indiana’s choice of a means to enforce such an identifica­
tion requirement does not cross any constitutional line, 
especially in light of the commonsense reality that a 
photo ID requirement is familiar in numerous other fac­
ets of everyday life, and is a particularly effective means 
of verifying a voter’s identity.

The record establishes that “the vast majority of Indi­
ana’s voting age population”—“an estimated 99%”— 
“possesses the requisite photo identification.” Pet. App. 
68-69. And being asked to present a photo ID as a 
means of verifying identity cannot be regarded as a se­
vere burden in any legal or practical sense. Indeed, as 
the district court noted, “presentation of photo identifi­
cation is routinely required for a multitude of everyday 
activities—from boarding a plane, entering a federal 
building, to cashing a check.” Id. at 108. See Foti v. 
McHugh, No. 05-16079, 2007 WL 2472340 (9th Cir. Aug. 
28, 2007) (rejecting constitutional challenge to federal 
courthouse’s requirement that visitors show photo ID); 
Gilmore v. Gonzales, 435 F.3cl 1125 (9th Cir. 2006) (re­
jecting constitutional challenge to requirement to show 
ID to board an airplane), cert, denied, 127 S. Ct. 929 
(2007). Federal law likewise requires any employee to 
show identification at the time of hire for purposes of 
Form 1-9. See 8 C.F.R. 1274a.2(b)(l)(i), (v). The Consti-



24

tution does not require that we afford less security to 
the important civic task of voting, especially in light of 
the obvious state interest in ensuring electoral integrity. 
See Pet. App. 3; id. at 109.

b. Nor does the Voter ID law impose a severe bur­
den on the 1% of the voting age population in Indiana 
that—it is assumed—does not already have a photo ID. 
To begin with, as discussed, the fact that 1% of the State 
presumably faces an additional hurdle to voting as a 
result of the Voter ID Law itself provides no basis for 
invaliding the Indiana statute on its face. See pp. 13-18, 
supra. But even putting that to one side, petitioners 
have failed to demonstrate that the Voter ID Law im­
poses an impermissible burden on the at most 1% of the 
Indiana voters who do not already possess a photo ID.

At the outset, there is no evidence of what portion of 
the 1% without a BMV-issued ID may have a federal 
government ID or already possess the documents neces­
sary to obtain a BMV photo ID, which Indiana provides 
for free. See Pet. App. 106 n.75. Accordingly, it is “fac­
tually impossible * * * at this juncture” to conclude 
that the Voter ID Law’s requirements impose an imper­
missible burden on anyone’s right to vote. Cutter v. 
Wilkinson, 544 U.S. 709, 725 (2005) (internal quotation 
marks and citation omitted). As the court of appeals 
noted, petitioners did not identify “a single plaintiff 
* * * who would vote were it not for the law.” Pet. App. 
5; id. at 101. Plaintiffs challenging other voter ID laws 
have likewise failed to identify such an individual. See 
Gonzalez v. Arizona, 485 F.3d 1041,1050 (9th Cir. 2007) 
(Arizona law); Common Cause/Ga. v. Billups, 504 F. 
Supp. 2d 1333,1380 (N.D. Ga. 2007) (Georgia law).

Petitioners also complain (Dem. Br. 31-32; Crawford 
Br. 41-42) about the time, cost, and inconvenience that



25

may be required of these voters to obtain a free photo 
ID from BMV. Such inconveniences, however, do not 
trigger heightened scrutiny. “Election laws will invari­
ably impose some burden upon individual voters” and 
strict scrutiny is not triggered merely because a law 
makes casting a ballot marginally more difficult for 
some voters. Burdick, 504 U.S. at 433; Kramer v. Union 
Free Sch. Disk, 395 U.S. 621, 626 n.6 (1969). Indeed, it 
is hard to imagine any election regulation that does not 
limit the opportunity of, or cause some inconvenience to, 
at least some citizens who choose to vote. A State’s 
choice of poll locations and hours of operation will incon­
venience some voters and could require them to find 
child care, incur transportation costs, or even miss work 
in order to vote in-person. Some citizens may also need 
to stand in long lines to vote in-person depending on 
where and when they go to the polls. And any identifica­
tion requirement—photo or otherwise—wall inconve­
nience some voters. Such routine costs and inconve­
niences, however, do not render a State’s electoral pro­
cess constitutionally defective.

Petitioners maintain (Pet. App. 45) that a dispropor­
tionate number of the 1% of prospective voters without 
a BMV-issued photo ID are elderly, disabled and poor 
voters. But to the extent such voters are disproportion­
ately elderly and disabled that fact hurts petitioners’ 
claim because such voters automatically qualify to vote 
absentee, see Ind. Code 3-ll-10-24(a)(4), (5); and accord­
ingly can cast a ballot by mail without obtaining any 
photo ID. See Pet. App. 81-82. Indiana law also allows 
an indigent person to vote in multiple ways, even with­
out obtaining an ID. See p. 6, supra. Accordingly, be­
cause the right to vote does not include the right to vote 
in-person, or by any particular method, the Voter ID



26

Law does not impose any burden on the right to vote for 
a majority of the 1% of Indiana voters who do not have 
a photo ID, but may nonetheless vote absentee or by 
provisional ballot. Cf. Rodriguez v. Popular Democratic 
Party, 457 U.S. 1, 9 (1982) (the Constitution does not 
“compel[] a fixed method of choosing state or local offi­
cers or representatives”).

In order to bolster their claim of burden, petitioners 
again rely on unreviewed studies that were not sub­
jected to the district court’s scrutiny to demonstrate a 
purported burden. See Dem. Br. 12; Crawford Br. 15. 
But as discussed, those studies—which were not consid­
ered below and are not part of the record—provide no 
basis for invalidating the Indiana law. In addition, the 
one study focused on the Indiana Voter ID Law found 
“no consistent evidence that counties that have higher 
percentages of minority, poor, elderly or less-educated 
population suffer any reduction in voter turnout relative 
to other counties.” Milyo Report abstract..4

c. Petitioners also contend (Dem. Br. 27; Crawford 
Br. 51-52) that the Voter ID Law imposes per se a se­
vere burden because it is analogous to a poll tax. That 
contention is mistaken. As this Court has held, the 
prototypical poll tax is a “capricious or irrelevant factor” 
that is “not germane” to one’s qualification to vote. 
Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668 
(1966). The Voter ID Law is the opposite. It is designed 
to ensure that the enforcement of concededly legitimate 
restrictions on the franchise—viz., limiting eligible votes 
to registered voters in the relevant district—-in a man­
ner that directly promotes the integrity of the electoral

4 In his study of the effects of the Voter ID Law, Professor Milyo 
discusses what he views as flaws in the methodology of certain studies 
on which petitioners and their amici rely. See Milyo Report 2-4.



27

process. The law does not impose a tax on any citizen, 
much less condition voting on payment of a fee.

Moreover, the State will issue a photo ID free of 
charge to every registered voter who will be over the 
age of 18 at the next election and does not have an Indi­
ana driver’s license. Nor is any indigent voter who does 
not possess a photo ID excluded from voting because he 
or she is unable to pay for the documentation that would 
be necessary to obtain one. Those voters can vote an in- 
person absentee ballot at the courthouse before election 
day and sign an affidavit of indigency or vote at the polls 
and go to the courthouse thereafter. See p. 6, supra. In 
short, the Indiana Voter ID imposes no more of a “tax” 
on the right to vote than the fact that to get to the polls 
a voter may need to pay for bus fare, parking, or a baby 
sitter. In other words, it is not a poll tax at all.

d. The conclusion that the Indiana Voter ID Law 
does not impose a severe burden on the right to vote 
follows a fortiori from Burdick. In that case, the Court 
held that a Hawaii law that banned write-in voting 
“impose[d] only a limited burden on voters’ rights to 
make free choices and to associate politically through 
the vote.” 504 U.S. at 439. Justice Kennedy, joined by 
Justices Blackmun and Stevens, disagreed. In their 
view, the Hawaii law imposed a “significant burden” on 
the right to vote because, as a result of the ban on write- 
in voting, a plaintiff had “no way to cast a meaningful 
vote” for a candidate who was not on the ballot. Id. at 
442 (emphasis added). Under the Indiana law at issue in 
this case, Indiana voters are not barred from voting for 
any candidate. They simply must present a photo ID at 
the polls, and if they do not have or cannot afford such 
an ID, the State has provided a number of reasonable 
options to ensure that they can obtain one or submit a



provisional ballot that can be counted upon subsequent 
proof of identification. See pp. 5-6, supra.0

C. The Voter ID Law Serves The S ta te ’s Com pelling In te r­
est In Preserving The Integrity  Of The Electoral Process

The State’s interest in preventing actual or threat­
ened voter fraud is more than sufficient to justify any 
burden that is imposed by Indiana’s Voter ID Law. As 
this Court has recognized, “[a] State indisputably has a 
compelling interest in preserving the integrity of its 
election process.” Purcell, 127 S. Ct. at 7 (quoting Eu v. 
San Francisco County Democratic Cent. Comm., 489 
U.S. 214, 231 (1989)). Indeed, as the court of appeals 
explained, “voting fraud impairs the right of legitimate 
voters to vote by diluting their votes—dilution being 
recognized to be an impairment of the right to vote.” 
Pet. App. 6 (citing, e.g., Purcell, 127 S. Ct. at 7; Sims, 
377 U.S. at 555). As the district court found, the Indiana 
Voter ID Law advances the State’s interest in prevent­
ing voter fraud in a way that strikes a “reasonable” bal­
ance “between discouraging fraud * * * and encourag­
ing turnout.” Pet. App. 106-107.

While recognizing a powerful state interest in deter­
ring election fraud, see Dem. Br. 42; Crawford Br. 46,

5 The Biirdick dissenters noted that Hawaii’s prohibition on write-in 
voting was at odds with the trend in “new5 * 7 democracies in foreign 
countries.” 504 U.S. at 444. Here, it is just the opposite. Photo ID 
requirements are prevalent in other countries’ elections. As the
Commission on Federal Election Reform, chaired by President Carter 
and former Secretary of State Baker, noted in support of its recommen­
dation that the United States adopt a photo identification requirement, 
“[vjoters in nearly 100 democracies use a photo identification card 
without fear of infringement on their rights.” Building Confidence in
U.S. Elections 5, 25 (2005) < http://www.american.edu/ia/cfer/report/ 
full_report. pdf>.

http://www.american.edu/ia/cfer/report/full_report._pdf
http://www.american.edu/ia/cfer/report/full_report._pdf


29

petitioners contend that Indiana lacks an interest in de­
terring the particular type of fraud to which the Voter 
ID Law is addressed—in-person voter impersonation— 
because of the lack of reported incidences of such fraud 
in Indiana. See Dem. Br. 43; Crawford Br. 47. Further, 
petitioners argue that, to the extent the State has a le­
gitimate interest in combating such fraud, the Voter ID 
Law is not “necessary” to serve that interest because 
less restrictive tools are available. Dem. Br. 41; Craw­
ford Br. 55-56. Both arguments are mistaken.

There is no requirement that the State show evi­
dence of past in-person voter impersonation for the 
State’s interest in preventing such fraud to qualify as 
important. A State need not wait to suffer a harm; it can 
adopt prophylactic measures to prevent it from occur­
ring in the first place. That is particularly true in a situ­
ation, like voter fraud, where the temptation is obvious 
and the consequences of undeterred and undetected vio­
lations are enormous. Thus, legislatures may “respond 
to potential deficiencies in the electoral process with 
foresight rather than reactively, provided that response 
is reasonable and does not significantly impinge on con­
stitutionally protected rights.” Munro v. Socialist 
Workers Party, 479 U.S. 189,195-196 (1986). This Court 
has declined to “second-guess” legislative determina­
tions on the “need for prophylactic measures where cor­
ruption is the evil feared.” FEC v. National Right to 
Work Comm., 459 U.S. 197, 210 (1982).

The State’s interest in deterring voter fraud before 
it happens is evident from the monumental harm that 
can come from such fraud. The East Chicago mayoral 
primary in Indiana proves the point. Although the 
plaintiff was only able to show 155 invalid absentee 
votes, the court found that the “[widespread corrup­



30

tion” had left the putative winner’s 278-vote victory “in­
herently deceptive and unreliable,” and the court invali­
dated the entire election. Pabey, 816 N.E.2d at 1151, 
1154. Thus, the fraudulent votes of even a small number 
can, in a close election, invalidate the votes of every 
other citizen who participated in the election. Even 
when the election is not so close, “[ejvery false registra­
tion and every fraudulent ballot cast harms the system 
by cancelling votes cast by legitimate voters.” 148 Cong. 
Rec. 20,833 (2002) (HAVA conference report) (statement 
of Sen. Bond). “If your vote is canceled by the vote of a 
dog or a dead person, it is as if you did not have a right 
to vote.” Id. at 20,832 (same). Moreover, whatever its 
exact incidence, even the prospect of voter fraud may 
undermine the integrity of the voting process. In light 
of the obvious temptation to engage in such fraud and 
the enormous costs if the integrity of the process is un­
dermined, States have an obvious incentive to deter such 
violations before they happen.

In any event, as the Carter-Baker Commission 
found, there is “no doubt” that in-person voter fraud oc­
curs. J.A. 138. Moreover, the record includes reported 
incidents of in-person voting fraud in nine States, Pet. 
App. 109, and there is no reason to believe that Indiana 
is immune from such fraud. If anything, as the district 
court noted, ibid., there is a greater “opportunity for in- 
person voter fraud to occur” in Indiana since the State’s 
voter rolls are “significantly inflated.” That evidence, 
combined with the fact that impersonation fraud is ex­
tremely difficult to detect in the absence of some reli­
able means of checking the voter’s identity (like a photo 
ID), provides more than ample support for the State’s 
legislative judgment that a photo ID requirement was 
warranted to combat voter fraud in Indiana.



31

Petitioners contend that signature matching is an 
adequate alternative to verify voters’ identities at the 
polls and point to the fact that a photo is not required 
for absentee ballots. Dem. Br. 51-52; Crawford Br. 
55-56. But a photo ID requirement is less easily admin­
istered in the case of absentee ballots as opposed to in- 
person voting and a State may deal with the added risk 
of fraud in the absentee context by limiting it, as Indiana 
has, to special contexts.

Petitioners’ amici suggest other alternatives, includ­
ing affidavits, utility bills, social security numbers, or 
dates of birth (see AALDEF Br. 9-11; Lawyers’ Comm. 
Br. 29-31; NLCHP Br. 25-28; Secretaries of State Br. 
24; Brennan Ctr. Br. 33), but none of those methods is as 
reliable as a photo ID. In addition, under petitioners’ 
analysis, those methods would themselves be subject to 
constitutional challenge. Indeed, a utility bill require­
ment might be more burdensome than a photo ID re­
quirement for, say, a homeless person. A State might 
reasonably rely on one (or more) of those methods, but 
the Constitution does not require Indiana to use the 
least restrictive alternative in establishing the time, 
place, and manner of its elections.
III. HAVA’S IDENTIFICATION REQUIREMENTS DO NOT 

PR E E M PT  INDIANA’S VOTER ID LAW

Petitioners’ amici (Sen. Feinstein Br. 2-3, 19) argue 
that HAVA’s identification requirements preempt Indi­
ana’s stricter requirements. That argument—-which was 
neither raised nor decided below—is without merit. By 
its terms, HAVA establishes mandatory “minimum” 
voter identification requirements and explicitly provides 
that “nothing in [it] shall be construed to prevent a State 
from establishing * * * requirements that are more



32

strict.” 42 U.S.C. 15484. See 148 Cong. Rec. at 20,834 
(“this bill in no way limits the ability of the states from 
taking steps beyond those required”) (statement of Sen. 
Bond); U.S. Election Assistance Commission, EAC Ad­
visory 2005-006: Provisional Voting and Identification 
Requirements 1 (2005).

While Indiana’s requirements are “more strict” than 
those of HAVA, they are not “inconsistent with the Fed- 
eral requirements.” 42 U.S.C. 15484. HAVA’s identifi­
cation requirements, which apply only to first-time vot­
ers who registered by mail and whose identities were 
not established from information submitted at that time, 
42 U.S.C. 15483(b)(3)(A), (B), relate to authentication of 
a voter’s registration, whereas the Voter ID Law con­
firms the identity of those casting ballots. Amici’s argu­
ment would convert HAVA into both a floor and a ceil­
ing, thereby divesting States of the flexibility that Con­
gress intended them to retain. See 42 U.S.C. 15485.



33

CONCLUSION

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted.

Paul D. Clement 
Solicitor General

Grace Chung Becker 
Acting Assistant Attorney 

General
Gregory G. Garre 

Deputy Solicitor General
Douglas Hallward-Driemeier  

Assistant to the Solicitor 
General

Diana K. F lynn 
Christy A. McCormick 

Attorneys

Dec em b er  2007