Crawford v. Marion County Election Board Brief Amicus Curiae

    Nos. 07-21 & 07-25
In the

S u p r e m e  C o u r t  o f tfje © m te b  S ta te s ;

W illiam  Crawford, et al.,
Petitioners,

v.
Marion County Election Board, e t al.,

Respondents,
&

Indiana Democratic Party , et a l,

Todd Rokita, Indiana Secretary of State, et al.
- Respondents.

On Appeal from the United States Court Of Appeals for 
the Seventh Circuit

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.

AS AMICUS CURIAE W  SUPPORT OF PETITIONERS

Theodore M. Shaw 
Director- Counsel 

Jacqueline A. Berrien 
*Debo P. A degbile 
Ryan P. Haygood 
Jenigh J. Garrett 
Alexis Karteron 
NAACP Legal Defense 

and Educational Fund,
INC.

99 Hudson Street 
New York, NY 10013 
(212) 965-2200 
*Counsel of Record

Kristen M. Clarke 
NAACP Legal Defense 

and Educational Fund, 
Inc.

1444 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Amicus 
Curiae



1

TABLE OF CONTENTS

TABLE OF AUTHORITIES............................. ........ii

INTEREST OF AMICUS..................................  1

SUMMARY OF ARGUMENT..................   2

ARGUMENT................................................................4

I. The Proliferation of Photo Identification Laws
Like Indiana’s Would Have A Devastating 
Impact on Access to the Franchise for Many 
Poor African Americans................................... 4

II. Photo Identification Laws Create
Constitutionally Forbidden Restrictions on the 
Right to Vote that Disparately Impact African 
Americans.....................   10

III. Indiana’s Government-Issued Photo
Identification Requirement Will Exclude 
Otherwise Qualified Voters from the 
Franchise, and Have a Disparate Impact on 
African Americans.......................................... 14

A. The Class of Citizens Effectively
Disfranchised by Photo Identification 
Laws Like Indiana’s Is Disproportion­
ately African-American.......................... 14

B. The Combination of Intense Segregation 
and Photo Identification Laws Could 
Erode Participatory Democracy at the 
Local Level in Many American Cities. ..18

CONCLUSION ..20



TABLE OF AUTHORITIES

FEDERAL CASES
Anderson v. Celebrezze,

460 U.S. 780 (1983)........................................ 7, 14
Bullock v. Carter,

405 U.S. 134 (1972)........................................ 7, 14
Burdick u. Takushi,

504 U.S. 428 (1992).................. ......................3, 13
Bush v. Vera,

517 U.S. 952 (1996)............................... ...............1
Carrington v. Rash,

380 U.S. 89 (1965).................................... ..........13
Chisom v. Roemer,

501 U.S. 380 (1991)......... .....................................1
Ciriano v. City of Houma,

395 U.S. 701 (1969).............................. ..............12
Clingman v. Beaver,

544 U.S. 581 (2005)........................................ 7, 14
Crawford v. Marion County Election Board,

472 F.3d 949 (7th Cir. 2007)................................ 2
Dunn v. Blumstein,

405 U.S. 330 (1972).................................. 7, 12, 13
Easley v. Cromartie,

532 U.S. 234 (2001)........... ...................................1
Evans v. Cornman,

398 U.S. 419 (1970)............. ...............................12
Georgia v. Ashcroft,

539 U.S. 461 (2003)

ii

1



Ill

Gomillion v. Lightfoot,
364 U.S. 339 (1960)..... ............................... ..........7

Harman v. Forssenius,
380 U.S. 528 (1965)............................................ 10

Harper v. Virginia,
383 U.S. 663 (1966).............  13

Houston Lawyers' Association v. Texas 
Attorney General,
501 U.S. 419(1991)............................................ ...1

Kramer v. Union Free School District,
395 U.S. 621 (1969)................................ 12, 14, 20

League of United Latin American Citizens v. 
Clements,
999 F.2d 831 (5th Cir. 1993), cert, denied,
510 U.S. 1071 (1994).............................................2

League of United Latin American Citizens v.
Perry,
126 S. Ct. 2594 (2006)...........  1

NAACP v. Button,
371 U.S. 415 (1963).........................  1

Purcell v. Gonzalez,
126 S. Ct. 5 (2006) (per curiam) .........................13

Reynolds v. Sims,
377 U.S. 533 (1964)........................................ 2, 12

Schneider v. State,
308 U.S. 147 (1939)............................................. 13

Shaw v. Hunt,
517 U.S. 899 (1996)..........  1

Thornburg v. Gingles,
478 U.S. 30 (1986).................................................2



IV

United States v. Hays,
515 U.S. 737 (1995)............................................... 1

Whitcomb v. Chavis,
403 U.S. 124 (1971)................................ ............U

Williams u. Rhodes,
393 U.S. 23 (1968)............................................... 12

Yick Wo v. Hopkins,
118 U.S. 356 (1886)...................................... ......12

STATE CASES

Weinschenk v. State,
203 S.W.2d 201 (Mo. 2006)..................................17

MISCELLANEOUS

National Urban League Equality Index in 
T he State  of Blac k  Am e r ic a  2007 17, 20 
(Stephanie J. Jones, ed., 2007)..............................8

Press Release, President Discusses Hurricane 
Relief in Address to the Nation, (Sept. 15,
2005)................................................  5

To Assure Pride and Confidence - Task Force 
Reports to Accompany the Report of the 
National Commission on Election Reform, 
Chapter I - Verification of Identity (2001).........14

U.S. Census Bureau, State & County 
QuickFacts ,http ://quickfacts.census. go v/ qf 
d/states/ 55/55079.html....................................... 19

Matt A. Barreto, Stephen A. Nuno, Gabriel R. 
Sanchez, Voter ID Requirements and the 
Disenfranchisements of Latino, Black and 
Asian Voters, Am. Pol. Sci. Ass’n 
Presentation (Sept. 1, 2007)................................ 16



V

Alan Berube & Bruce Katz, Brookings 
Institution, Katrina’s Window:
Confronting Concentrated Poverty Across 
America, (Oct. 2005)........................................6, 19

Craig Leonard Brians & Bernard Grofman, 
Election Day Registration’s Effect on U.S.
Voter Turnout, 82 SOC. SCI. Q. 170 (2001)..........17

Bill Dolan, The Great Divide, N.W. IND. & ILL.
Times (Dec. 10, 2006)................................................6

Frances  F ox P iven  & R ichard  A. Clo w a r d ,
W hy  Am erican s  D on ’t V ote  (1988).................. 16

M.V. Hood, III & Charles S. Bullock, III,
Worth a Thousand Words? An Analysis of 
Georgia's Voter Identification Statute (Apr.
2007)..............................................................15, 16

John Iceland et al., U.S. Census Bureau,
Racial and Ethnic Segregation in the 
Untied States: 1980-2000 (2002)..... .....................9

John Iceland, Racial and Ethnic Residential 
Segregation and the Role of Socioeconomic 
Status, 1980-2000, in FRAGILE RIGHTS 
W ith in  Citie s : G overn m en t , H ousing  &
FAIRNESS (John Goering ed., 2007)...................... 9

D ouglass  S. M assey  & Na n c y  A. D en ton , 
Am e ric an  Apa r th e id : Segregation  and  
the  M akin g  of the  U nderclass  140 
(1993).................................................................8, 9

Bruce Nolan, In Storm, N.O Wants No One 
Left Behind; Number of People Without 
Cars Makes Evacuation Difficult, TlMES- 
PlCAYUNE, July 24, 2005, at 1 ............................ 19



V I

Spencer Overton, The Donor Class: Campaign 
Finance, Democracy, and Participation,
153 U. PA. L. R e v . 73 (2004)............ ............ 18 n.4

John Pawasarat, Employment and Training 
Institute, University of Wisconsin- 
Milwaukee, The Driver's License Status of 
the Voting Age Population in Wisconsin 
(June 2005), www.uwm.edu................................19

Steven  J. R osenston e  & J ohn  M a rk  
H a n se n , M o bilizatio n , Pa rtic ipa tio n , 
an d  D em ocracy  in  Am e r ic a  (1993)........  10

Sean B. Seymore, Set the Captives Free! 
Transit Inequity in Urban Centers, and the 
Laws and Policies Which Aggravate the 
Disparity, 16 Geo. M ason U. Civ . Rts. L.J. 57 
(2005).........................................................   ...7

Raym o n d  E. W olfinger  & Steven  J.
R osen sto n e , W ho V otes? (1980)....................... 16

http://www.uwm.edu


INTEREST OF AMICUS1

The NAACP Legal Defense and Educational 
Fund, Inc. (“LDF”) is a nonprofit corporation 
chartered by the Appellate Division of the New York 
Supreme Court as a legal aid society. The Legal 
Defense Fund’s first Director-Counsel was Thurgood 
Marshall. Since its founding in 1939, LDF has been 
committed to enforcing legal protections against 
racial discrimination and to securing the 
constitutional and civil rights of African Americans. 
See NAACP v. Button, 371 U.S. 415, 422 (1963) 
(describing LDF as a “‘firm’ . . . which has a 
corporate reputation for expertness in presenting 
and arguing the difficult questions of law that 
frequently arise in civil rights litigation”).

LDF has an extensive history of participation 
in efforts to eradicate barriers to the full political 
participation of African Americans and to eliminate 
racial discrimination from the political process. LDF 
has represented parties or participated as amicus 
curiae in numerous voting rights cases before this 
Court and the United States Courts of Appeals. See, 
e.g,, League of United Latin Am. Citizens v. Perry, 
126 S. Ct. 2594 (2006); Georgia u. Ashcroft, 539 U.S. 
461 (2003); Easley v. Cromartie, 532 U.S. 234 (2001); 
Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 
517 U.S. 899 (1996); United States u. Hays, 515 U.S. 
737 (1995); Chisom u. Roemer, 501 U.S. 380 (1991); 
Houston Lawyers’ Ass’n v. Tex. Attorney Gen., 501

1 Letter of consent by the parties to the filing of this brief have 
been lodged with the Clerk of this Court. No counsel for any 
party in these consolidated cases authored this brief in whole or 
in part, and no person or entity, other than amicus, made any 
monetary contribution to its preparation.



2
U.S. 419 (1991); Thornburg v. Gingles, 478 U.S. 30 
(1986); League of United Latin Am. Citizens v. 
Clements, 999 F.2d 831 (5th Cir. 1993) (en banc), 
cert, denied, 510 U.S. 1071 (1994).

Because of its longstanding commitment to 
the elimination of racial discrimination in the 
political process and the protection of the voting 
rights of African Americans, LDF has an interest in 
these appeals, which present important issues 
concerning minority voters’ ability to meaningfully 
access the political process in the face of Indiana’s 
adoption of a government-issued photo identification 
requirement.

SUMMARY OF ARGUMENT

Although the Court of Appeals seems to 
trivialize the value of the right to vote, describing 
“the benefits of voting to the individual” as “elusive,” 
Crawford v. Marion County Election Bd., 472 F.3d 
949, 951 (7th Cir. 2007), that characterization is 
plainly contrary to the Constitution and this Court’s 
jurisprudence. Instead, “the right to exercise the 
franchise in a free and unimpaired manner is 
preservative of other basic civic and political rights.” 
Reynolds v. Sims, 377 U.S. 533, 562 (1964). The 
Indiana statute at issue in these cases demands, 
therefore, not only a searching review of the burden 
imposed on individuals, but also consideration of the 
disproportionate burdens faced by voters who have 
enjoyed unfettered access to the vote as a result of 
this Court’s precedents.

We agree with petitioners that the impact on 
some individuals — effective vote denial — is 
significant and requires Indiana’s law to be



invalidated. See Burdick v. Takushi, 504 U.S. 428, 
434 (1992). We urge the Court to consider the 
likelihood that laws like Indiana’s photo 
identification requirement will disfranchise some of 
the most vulnerable communities in our nation, 
whose access to the ballot is critical to the integrity 
of our participatory democracy.

Millions of Americans do not possess the form 
of government-issued photo identification required 
under Indiana’s law, and that group is 
disproportionately poor and minority. Accordingly, 
the impact of laws like Indiana’s, which conditions 
the right to vote on the presentation of identification, 
will effectively fence out of the electorate significant 
numbers of African Americans, and will have a 
particularly burdensome impact in the places where 
impoverished African Americans are concentrated. 
Significantly, Indiana’s law stands as a barrier not 
only to voters who have previously participated 
under state voting standards that afforded greater 
access, as also to the political mobilization of eligible, 
but yet unregistered citizens whose right to 
participate is of no less constitutional import.

The demographic profile of Indiana bears this 
out. Although Indiana’s law requiring the 
presentation of government-issued photo 
identification may not, at first glance, appear to have 
a pernicious impact, poor African Americans will 
bear the burden of the restriction more than any 
other group.

Moreover, because there can be no question 
that areas of concentrated poverty include a 
disproportionately high number of citizens who lack 
the type of identification that would meet the

3



4
demands of Indiana’s law, there is significant reason 
for concern that the adoption of similar photo 
identification requirements would have an 
extraordinary impact at the local level in many 
places. Such statutes would threaten to disfranchise 
significant portions of the electorate in many cities 
and counties.

Taken together, the primacy of voting in our 
democracy, the stringency of the Indiana law, and 
the reality that the franchise has long provided our 
nation’s socio-economically disadvantaged racial 
minorities with the only tangible means of accessing 
the political process and asserting their interests, 
should lead this Court to employ its strictest review 
and invalidate the statute.

ARGUMENT

I. The Proliferation of Photo Identification 
Laws Like Indiana’s Would Have A 
Devastating Impact on Access to the 
Franchise for Many Poor African 
Americans.

Stringent photo identification laws like 
Indiana’s, which condition access to the franchise on 
the presentation of government issued photo 
identification, present extraordinary barriers to the 
most marginalized individuals in American society.

Although the Indiana photo identification law 
may not have a significant impact on the rights of 
some voters, its impact on the rights of poor citizens, 
who are disproportionately African American, is 
significant. Certainly, a segment of the population 
of Indiana carries identification deemed sufficient to



5
satisfy the strictures of the Indiana law. Just as 
certainly, however, there are significant segments of 
the population that do not possess the necessary 
documentation, and many of these persons face real- 
world barriers in obtaining it. The reality faced by 
those who possess qualifying identification may be a 
world apart from those who do not and will not.

Indeed, recent experience provided powerful 
reminders that socio-economic disadvantage can 
have very serious consequences. As President Bush 
observed following Hurricane Katrina:

[TJhere’s also some deep, persistent poverty in 
the region . . . .  That poverty has roots in a 
history of racial discrimination, which cut off 
generations from the opportunity of America.

Press Release, President Discusses Hurricane Relief 
in Address to the Nation, (Sept. 15, 2005),
http://www.whitehouse.gov/new/releases/2005/09/200 
50915-8.html.

President Bush’s reference to the social and 
political reality of New Orleans’ African-American 
poor, exposed to the world in the wake of Hurricane 
Katrina, could have just as easily referred to any of 
the countless communities across the United States 
where African Americans are segregated and live in 
concentrated poverty.

People who live in concentrated poverty are 
disproportionately poor, underemployed, have less 
education and wealth, and lower rates of access to 
quality healthcare. Whatever doubts existed before 
the flood waters inundated New Orleans, it quickly 
became clear that significant numbers of the city’s

http://www.whitehouse.gov/new/releases/2005/09/200


residents simply did not have the resources to 
evacuate when Katrina loomed. Although some 
tried to sound the alarm before the storm about the 
desperate condition of that group — for example, the 
Times-Picayune reported that approximately 
134,000 New Orleanians would be unable to access 
transportation and evacuate in the face of a major 
hurricane — those warnings were obviously not 
heeded. Bruce Nolan, In Storm, N.O Wants No One 
Left Behind; Number of People Without Cars Makes 
Evacuation Difficult, TlMES-PlCAYUNE, July 24, 
2005, at 1.

Moreover, in Indiana, as in the nation, 
segregated African-American communities are very 
often defined both by race and poverty. “Despite 
positive trends in the 1990s, almost every major 
American city still contains neighborhoods that 
mirror the Lower Ninth Ward demographically and 
economically.” Alan Berube & Bruce Katz, 
Brookings Institution, Katrina’s Window:
Confronting Concentrated Poverty Across America, 
(Oct. 2005), (“Katrina’s Window”)
http://www.brookings.edu/metro/pubs/20051012_Con 
centratedpoverty.pdf. Among them is Indianapolis, 
which has three “extreme poverty neighborhoods,” 
i.e., census tracts in which at least 40 percent of the 
population lives in families with incomes below the 
federal poverty threshold.” Id. (App. A). African 
Americans in these neighborhoods have the highest 
concentrated poverty rate as compared to whites and 
Latinos in Indianapolis. Id. In addition, Gary, 
Indiana is among the most segregated metropolitan 
areas in the country. See Bill Dolan, The Great 
Divide, N.W. In d . & II I . T imes (Dec. 10, 2006), 
available at http://www.nwitimes.com/articles/2006/

6

http://www.brookings.edu/metro/pubs/20051012_Con
http://www.nwitimes.com/articles/2006/


12/10/news/top_news/9127e826329a71ca8625723f00
82d99d.txt.

Critical to the analysis of laws like Indiana’s 
that limit access to the franchise is the 
Constitution’s demand that no class of voters be 
systematically excluded from the franchise. Aside 
from the Fifteenth Amendment’s prohibition on 
“fencing Negro citizens out” of the ballot box, 
Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960), the 
Fourteenth Amendment demands “strict review of 
statutes distributing the franchise.” Dunn v. 
Blumstein, 405 U.S. 330, 337 (1972). “[Sjtrict 
review” is particularly important when such statutes 
may have a discriminatory impact. See Clingman v. 
Beaver, 544 U.S. 581, 603 (2005) (O’Connor, J., 
concurring); Anderson v. Celebrezze, 460 U.S. 780, 
792-93 & n.15 (1983); Bullock v. Carter, 405 U.S. 
134, 144 (1972).

In America, which continues to be marked by 
intense racial and economic segregation, the 
franchise is the one tool that places citizens on equal 
footing with all others. Moreover, in areas of 
concentrated poverty, African-American suffrage has 
always been a key element for providing access to 
the political, social and economic capital necessary to 
bring about change. Laws like Indiana’s place such 
onerous burdens on access to the ballot box for these 
voters.

7

Race remains a barometer of social, political, 
and economic opportunity in America. And, 
although some African Americans have made 
significant progress, widespread racial inequality 
persists. For example, the African-American poverty 
rate is among the highest of all races at 24.9 percent,



8
and nearly three times the poverty rate for whites, 
which is 8.3 percent. National Urban League 
Equality Index in T he STATE OF BLACK AMERICA 
2007 17, 20 (Stephanie J. Jones, ed., 2007). 
Similarly, the African-American unemployment rate 
is nearly twice the unemployment rate for whites. 
Id. at 23. This limitation on economic equality also 
influences other areas. African Americans are more 
likely to rely on public transportation than whites, 
id. at 24, more likely to lead single parent 
households than their white counterparts, DOUGLASS 
S. Ma s s e y  & Na n cy  A. D e n to n , Am erican  
A pa r th e id : Segreg ation  and  the  M akin g  of the 
U nderclass  140 (1993), and, if they can obtain 
employment, more likely to live outside the 
community where they are employed. Sean B. 
Seymore, Set the Captives Free! Transit Inequity in 
Urban Centers, and the Laws and Policies Which 
Aggravate the Disparity, 16 G e o . MASON U. ClV. Rt s . 
L.J. 57, 70 (2005).

It is the combination of poverty and racial 
segregation, however, that exacerbates the critical 
dividing line that race plays in American society. 
The persistence of segregation is particularly 
striking among African Americans despite 
increasing racial diversity in the nation as a whole. 
As described in a seminal work on the topic:

No group in the history of the United States 
has ever experienced the sustained high level 
of residential segregation that has been 
imposed on blacks in large cities for the past 
fifty years. . . . Not only is the depth of black 
segregation unprecedented and utterly unique 
compared with that of other groups, but it



shows little sign of change with the passage of 
time or improvements in socioeconomic status.

Massey & Denton at 2.

Recent data reveals that little, if anything, 
has changed since Massey and Denton described this 
phenomenon in 1993. A recent review of census data 
revealed that “[t]he 1980 to 2000 period saw 
moderate declines in black-white segregation, 
though blacks continued to be highly segregated and 
more segregated from non-Hispanic whites than 
other groups.” John Iceland, Racial and Ethnic 
Residential Segregation and the Role of 
Socioeconomic Status, 1980-2000, in FRAGILE RIGHTS 
Within Cities: Government, Housing & Fairness 
107, 117 (John Goering ed., 2007). Indeed, African 
Americans remain the most residentially segregated 
group in the United States. John Iceland et al., U.S. 
Census Bureau, Racial and Ethnic Segregation in the 
Untied States: 1980-2000 at 95 (2002), available at 
http://www.census.gov/hhes/www/housing/housing_p 
atterns/p df/ch 7. p df.

Some laws can have the effect of amplifying 
residential segregation, concentrated poverty, and 
their resulting social disadvantages, and transfer 
inequality into the political process. As described by 
two scholars:

Participation in electoral politics is costly. 
Without money, it is impossible to contribute 
financially to a campaign. Without time, 
energy, transportation, and child care, it is 
difficult, even impossible, to volunteer to work 
for a candidate. Even the simple act of voting 
requires people to register, to gather and

9

http://www.census.gov/hhes/www/housing/housing_p


digest a mass of information about the 
candidates, to make choices, and to get to the 
polls come election day. Participation in 
electoral campaigns puts many strains on 
people’s resources, and people with ample 
resources are better able to participate than 
people with meager resources.

Steven  J. R osenston e  & Joh n  Ma r k  Ha n se n , 
M o b ilizatio n , Partic ipa tio n , and  D em ocracy  in 
AMERICA 133-34 (1993). In short, the legacy of 
official discrimination against African Americans in 
the United States continues to have an appreciable 
impact on the lives of African Americans, 
particularly those who live in areas with 
concentrated poverty, which restricts their ability to 
vote.

10

Voter identification laws like Indiana’s will, 
therefore, have a disproportionate impact on African 
Americans. In striking comparison to a former 
Virginia law that required presentation of a 
certificate indicating payment of a poll tax before 
adult citizens could vote, the Indiana photo 
identification law will “tend[] to eliminate from the 
franchise a substantial number of voters who did not 
plan so far ahead.” Harman v. Forssenius, 380 U.S. 
528, 539-40 (1965).

II. Photo Identification Laws Create 
Constitutionally Forbidden Restrictions 
on the Right to Vote that Disparately 
Impact African Americans.

Given that the communities in which many 
poor African Americans live are characterized by 
tremendous disadvantage, access to the franchise is



critically important. Indeed, exercise of the
franchise represents one of the few vehicles available 
to impact or change the very fragile conditions faced 
by many African Americans who remain isolated in 
inner cities characterized by concentrated poverty.

This Court cogently described the importance 
of the interest in the franchise for African-American 
residents of Indianapolis over 35 years ago: “There 
exists within Marion County an identifiable racial 
element, ‘the Negro residents of the Center 
Township Ghetto,’ with special interests in various 
areas of substantive law, diverging significantly 
from interests of nonresidents of the ghetto.” 
Whitcomb u. Chavis, 403 U.S. 124, 134-35 (1971). 
“These Negro residents have interests in areas of 
substantive law such as housing regulations, 
sanitation, welfare programs . . . garnishment 
statutes, and unemployment compensation, among 
others, which diverge significantly from the interests 
of nonresidents of the Ghetto.” Id. at 135 n.12 
(internal quotation marks omitted). Today, the 
social disadvantage plaguing the African-American 
residents of Marion County bears striking 
resemblance to the conditions they faced over 35 
years ago. Thus, unfettered access to the ballot box 
remains a crucial method — and perhaps the only 
realistic one — for marginalized African-American 
communities in Indianapolis, and others similarly 
situated, to pursue the goals of racial and social 
equality.

In short, these citizens can least contend with 
barriers that restrict or deny the exercise of the right 
to vote, and are most likely to be excluded by 
requirements that condition access to the ballot box

11



12
on the presentation of photo identification. The 
Fourteenth and Fifteenth Amendments to the 
Constitution do not permit unnecessary 
impediments to political participation in our 
democratic process. Consequently, laws such as 
Indiana’s photo identification measure, which erect 
clearly discernible barriers for poor African 
Americans, without concomitant benefits, deserve 
careful scrutiny.

As this Court has repeatedly explained, the 
right to vote is a “fundamental political right, . . . 
preservative of all rights.” Yick Wo v. Hopkins, 118 
U.S. 356, 370 (1886); see also Williams v. Rhodes, 
393 U.S. 23, 31 (1968); Reynolds, 377 U.S. at 562. 
Any measures that serve to restrict a certain class of 
otherwise eligible citizens from the franchise are 
therefore subject to strict review. “In decision after 
decision, this Court has made clear that that a 
citizen has a constitutionally protected right to 
participate in elections on an equal basis with other 
citizens in the jurisdiction.” Dunn, 405 U.S. at 336. 
The right to vote has never been dependent upon a 
voter’s station in life, viewpoint, or intelligence, and 
any qualifications that would impose such 
preconditions can not survive scrutiny under this 
Court’s precedents. See id. at 355-60 (citing, inter 
alia, Evans v. Cornman, 398 U.S. 419 (1970); 
Ciriano v. City of Houma, 395 U.S. 701 (1969); 
Kramer v. Union Free Sch. Dist., 395 U.S. 621 
(1969)).

Therefore, election regulations that serve to 
“fenc[e] out from the franchise,” entire classes of 
people otherwise eligible to vote threaten the 
“'[cjxercise of rights so vital to the maintenance of



13
democratic institutions.’” Carrington v. Rash, 380 
U.S. 89, 94 (1965) (quoting Schneider v. State, 308 
U.S. 147, 161 (1939)). The Fourteenth Amendment 
demands that the right to vote is not limited to 
citizens at the center of our society but extends to 
our most marginalized. Thus, a regulation that 
unnecessarily excludes eligible voters from the 
franchise must be carefully reviewed. See Purcell v. 
Gonzalez, 126 S. Ct. 5, 7 (2006) (per curiam) (“[T]he 
possibility that qualified voters might be turned 
away from the polls would caution any district judge 
to give careful consideration to the plaintiffs’ 
challenges.”); Dunn, 405 U.S. at 336 (“[A]s a general 
matter, before that right [to vote] can be restricted, 
the purpose of the restriction and the assertedly 
overriding interests served by it must meet close 
constitutional scrutiny.” (internal quotation marks 
and citation omitted)). This close review is required 
because of the severity of the restriction on the right 
to vote, i.e., effective vote denial. See Burdick, 504 
U.S. at 434 (“[T]he rigorousness of our inquiry into 
the propriety of a state election law depends upon 
the extent to which a challenged regulation burdens 
First and Fourteenth Amendment rights.”); Dunn, 
405 U.S. at 336. An appropriate analysis ensures 
that a state regulation does not create barriers that 
fence out those voters who face the greatest difficulty 
in satisfying the requirement, regardless of whether 
the burden is attributable to their poverty, limited 
time, or limited mobility. Cf. Harper u. Virginia, 383 
U.S. 663, 667-68 (1966) (discussing financial
impediments to the ballot).

Statutes like Indiana’s that selectively limit 
the franchise and pose the “danger . . .  of denying 
some citizens any effective voice in the governmental



14
affairs which substantially affect their lives,” 
Kramer, 395 U.S. at 626-27, warrant particular 
concern because of their targeted impact. See 
Clingman, 544 U.S. at 603 (O’Connor, J., 
concurring); Anderson, 460 U.S. at 792-93 & n.15; 
Bullock, 405 U.S. at 144.

III. Indiana’s Government-Issued Photo 
Identification Requirement Will Exclude 
Otherwise Qualified Voters from the 
Franchise, and Have a Disparate Impact 
on African Americans.

A. The Class of Citizens Effectively 
Disfranchised by Photo Identi­
fication Laws Like Indiana’s 
Is Disproportionately African- 
American.

All the available evidence indicates that the 
most marginalized African-American communities, 
where the poor are concentrated, are least likely to 
overcome the barriers imposed by stringent photo 
identification laws like Indiana’s.

Nationally, “6 to 10 percent of the American 
electorate does not have official state identification.” 
To Assure Pride and Confidence -  Task Force 
Reports to Accompany the Report of the National 
Commission on Election Reform, Chapter I — 
Verification of Identity, at 4 (2001), available at 
http://millercenter.virigina.edu/programs/natl_comm 
issions/commission_final_report/task_force_report/eo 
mplete.pdf. However, that part of the citizenry is 
not evenly distributed across racial and income 
groups. A recent national survey found that 25 
percent of African-American voting age citizens have

http://millercenter.virigina.edu/programs/natl_comm


no current government-issued photo ID, compared to 
8 percent of white voting-age citizens. Brennan 
Center for Justice, Citizens Without Proof: A Survey 
of Americans’ Possession of Documentary Proof of 
Citizenship and Photo Identification (Nov. 2006), at 
3, available at http://www.vote.caltech.edu/VoterID/ 
CitizensWithoutProof.pdf.2 Moreover, the same 
study found that “[cjitizens earning less than 
$35,000 per year are more than twice as likely to 
lack current government-issued photo identification 
as those earning more than $35,000.” Id.

Other studies demonstrate similar disparities. 
In Georgia, for example, African-American 
registered voters are nearly twice as likely to be 
without driver’s licenses as white registered voters. 
M.V. Hood, III & Charles S. Bullock, III, Worth a 
Thousand Words? An Analysis of Georgia’s Voter 
Identification Statute, 15 (Apr. 2007), http://www. 
vote .caltech.edu/VoterID/GAVoterlD (BullockHood) .p 
df. In addition, rural and urban Georgia voters were 
less likely to possess a driver’s license than 
suburban voters. Id. at 16.

Similarly, a study of California, New Mexico 
and Washington voters found that minority voters 
are less likely to have various forms of identification, 
such as driver’s licenses, birth certificates, or bank 
statements. Matt A. Barreto, Stephen A. Nuno, 
Gabriel R. Sanchez, Voter ID Requirements and the

15

2 This conclusion is consistent with the results of the U.S. 
Department of Transportation’s 2001 National Household 
Travel Survey revealed that only 57 percent of African- 
Americans are drivers, as compared to 73 percent of whites. 
See National Household Travel Survey (2001), available at 
http://nhts.ornl.gov.

http://www.vote.caltech.edu/VoterID/
http://www
http://nhts.ornl.gov


16
Disenfranchisements of Latino, Black and Asian 
Voters, Am. Pol. Sci. Ass’n Presentation (Sept. 1, 
2007).

In addition, statutes that condition access to 
the ballot on the presentation of government-issued 
photo identification, like other restrictive 
prerequisites and burdens that have been tied to 
voting historically, will constrict the size of the 
electorate and present a barrier to the franchise for 
both registered and unregistered citizens. 
Numerous political scientists have found a 
correlation between the number and complexity of 
qualifications tied to the exercise of the franchise 
and depressed turnout and participation rates.3

Empirical evidence demonstrates that turnout 
declines as administrative barriers to voting, such as 
voter registration requirements, are erected. See 
Raym o n d  E. W olfing er  & Steven  J. R osen ston e , 
WHO VOTES? 61 (1980). In addition, some
commentators assert that registration laws are the 
primary reason voting rates vary according to socio­
economic status. See FRANCES F ox  PlVEN & RICHARD 
A. Clo w a r d , W h y  Am erican s  D on ’t V ote 117-18 
(1988).

Therefore, it is reasonable to conclude that a 
law like Indiana’s demanding the acquisition of 
government-issued photo identification for those who 
do not have it, or maintaining a valid one, like

3 It is also worth noting that any photo identification that might 
allow a voter to cast a ballot is likely to be difficult to obtain for 
poor people. We concentrate our discussion on driver’s license 
possession here because it is the type of photo identification 
most likely to fulfill the Indiana statute’s requirement because 
it is the most available.



17
registration, “raises the costs of voting,” WOLFINGER 
& ROSENSTONE, at 61, and will operate to depress 
turnout. In stark contrast, one study of three states 
allowing Election Day registration, found an 
increase in average turnout and participation rates. 
Craig Leonard Brians & Bernard Grofman, Election 
Day Registration’s Effect on U.S. Voter Turnout, 82 
SOC. SCI. Q. 170 (2001).

The Crawford petitioners have discussed at 
length the barriers that a voter may encounter when 
attempting to procure such identification and the 
particular difficulty for those who lack resources, 
and we will not repeat them here. See Br. of 
Crawford Pet’rs at 15-19. The Missouri Supreme 
Court’s analysis of the difficulties of obtaining photo 
identification applies, however, with equal force 
everywhere that Americans live in poverty. There, 
the court found that “for Missourians who live 
beneath the poverty line, the $15 they must pay in 
order to obtain their birth certificates and vote is $15 
that they must subtract from their meager ability to 
feed, shelter and clothe their families.” Weinschenk 
u. State, 203 S.W.2d 201, 214 (Mo. 2006).

The cost imposed by a government issued 
photo identification requirement is not limited to the 
fee one must pay to obtain or renew the 
identification or underlying documents. Such 
requirements also strip voters with limited means of 
the ability to participate in elections in the only 
realistic way members of marginalized communities



18
exercise influence over the political process — 
casting a vote that counts.4

In sum, all data strongly support an inference 
that laws like Indiana’s that require the 
presentation of government issued photo 
identification as a prerequisite for in-person voting 
will have a significant disparate impact on African 
Americans, particularly in areas of concentrated 
poverty.5

B. The Combination of Intense 
Segregation and Photo Identi­
fication Laws Could Erode 
Participatory Democracy at the 
Local Level in Many American 
Cities.

Aside from the burden imposed on the right to 
vote described above, photo identification laws like 
Indiana’s have the potential to disfranchise 
significant portions of the electorate in local 
elections. A conclusive study of driver’s license 
possession in Wisconsin confirms this suspicion, and

4 Typically, impoverished inner city residents do not make
campaign contributions, or encounter living room fundraisers 
in their neighborhoods. For example, in the 2000 presidential 
election cycle, “people of color were grossly underrepresented, 
not only among contributors of amounts over $200, but also 
among contributors of $100 or less.” Spencer Overton, The 
Donor Class: Campaign Finance, Democracy, and
Participation, 153 U. PA. L. REV. 73, 102 & n.109, 118 n.162 
(2004) (noting that approximately 96 percent of donors in the 
2000 election cycle who contributed over $200 were white).

5 Though the impact in urban centers may be most 
concentrated, the impact on poor African Americans in rural 
and other settings is significant as well.



19
foretells what could become a national problem with 
the adoption of restrictive photo identification laws 
like Indiana’s in urban areas throughout the 
country.

Wisconsin is an appropriate example because 
it is a state with a significantly segregated African- 
American population. The state is only 5.9 percent 
African-American, but over 73 percent of the state’s 
African-American population resides in Milwaukee 
County. See U.S. Census Bureau, State & County 
QuickF acts, http ://quickfacts .census. gov/ qfd/ states/ 
55/55079.html. Milwaukee County’s most densely 
populated area, the City of Milwaukee, is 37.3 
percent African-American, and contains 42 extreme 
poverty census tracts, where at least 40 percent of 
the population reside in households with incomes 
below the federal poverty threshold. Katrina’s 
Window, App. A. A disproportionate number of 
these families are African-American. Id.

Although 80 percent of men and 81 percent of 
women have valid driver’s licenses statewide, only 
45 percent of African-American men, and 51 percent 
of African-American women have valid driver’s 
licenses. John Pawasarat, Employment and 
Training Institute, University of Wisconsin- 
Milwaukee, The Driver’s License Status of the Voting 
Age Population in Wisconsin, 3 (June 2005), 
www.uwm.edu/ETI/ barriers/DriversLieense.pdf. 
This disparity is similarly stark in Milwaukee 
County, where 73 percent of white residents, but just 
47 percent of African Americans have valid driver’s 
licenses. Id. at 22.

Applying a law like Indiana’s to an electorate 
like Milwaukee’s would effectively disfranchise a

http://www.uwm.edu/ETI/


significant portion of the city’s African-American 
citizenry. Such a law would, therefore, effectively 
and dramatically shrink the size of the electorate in 
races for Milwaukee’s mayor, city council, and other 
elected positions and increase the weight of votes 
cast by those who could satisfy the voter 
identification requirement.

The disparities in driver’s license possession 
in Wisconsin strongly support the inference that the 
citizens of racially isolated and impoverished urban 
centers are likely to be excluded from the franchise 
at a disparate rate, and thereby fenced out of the 
state’s democratic process. Such laws pose precisely 
the type of threat to the “legitimacy of representative 
government” that compromises the integrity of our 
democracy. See Kramer, 395 U.S. at 626.

CONCLUSION

African Americans isolated in communities 
characterized by concentrated poverty are less likely 
to possess government-issued photo identification. 
As a result, voter identification requirements like 
Indiana’s deny marginalized communities the 
opportunity to participate equally in the political 
process and undermine the principles at the root of 
our participatory democracy. For the foregoing 
reasons, the judgment of the Court of Appeals should 
be reversed.

20



21
Respectfully submitted,

Theodore M. Shaw 
Director- Counsel 

JACQUELINE A. BERRIEN 
*DEBO P. Adegbile 
Ryan P. Haygood 
Jenigh J. Garrett 
Alexis Karteron 
NAACP Legal Defense 

and Educational Fund , 
Inc .

99 Hudson Street,
Suite 1600 

New Y ork, NY 10013 
(212) 965-2200

^Counsel of Record

Kristen M. Clarke 
NAACP Legal Defense 

and Educational Fund, 
Inc .

1444 Eye Street, N.W. 
Washington , D.C. 20005 
(202) 682-1300

Attorneys for Amicus Curiae

Dated: November 13, 2007