Crawford v. Marion County Election Board Brief Amicus Curiae

    Nos. 07-21, 07-25

In  T he

Supreme Court of tlje SJntteb i§>tate3
No. 07-21

WILLIAM CRAWFORD, ET. AL.,
Petitioners,

v.
MARION COUNTY ELECTION BOARD, ET AL.

_____________ _ Respondents,
No. 07-25

INDIANA DEMOCRATIC PARTY, ET AL.,
Petitioners,

v.
TODD ROKITA, ET AL.,

Respondents.

On Writs of Certiorari to the United States 
Court of Appeals for the Seventh Circuit

BRIEF FOR LAWYERS DEMOCRACY FUND AS AMICUS 
CURIAE IN SUPPORT OF THE RESPONDENTS

H a r v e y  M . T e t tl e b a u m  
HUSCH & EPPENBERGER, LLP 
235 East High Street 
Jefferson City, M O  65102 
(573) 635-9118

M a r k  G. A r n o ld
HUSCH & EPPENBERGER, LLP 
190 Carondalet Plaza, Suite 600 
St. Louis, MO 63105 
(314) 480-1500

C h a r l e s  H. B e l l , J r . 
Counsel of Record 
B e l l .M cA n d r e w s  &
HlLTACHK, LLP 
455 Capitol Mall, Suite 801 
Sacramento, CA 95814 
(916) 442-7757
cbell@bmhlaw.com

Attorneys for the Amicus Curiae 
[December 10, 2007]

mailto:cbell@bmhlaw.com


1

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE .......... .......... . 1
INTRODUCTION AND SUMMARY OF

ARGUMENT.......................     1
ARGUMENT......................       4

I. NONE OF THE PETITIONERS 
IN THIS CASE HAVE 
STANDING TO PURSUE THE 
CLAIMS IN THIS LITIGATION......... 4

A. Article III Standing and
Case or Controversy......................4

B. The Organizational
Plaintiffs Lack Standing to 
Assert Any Claims.....................   6

2. The organizational 
plaintiffs cannot 
assert claims in their 
own right..............................6

3. The organizational 
plaintiffs cannot 
assert claims by 
those who forget or 
lose their photo 
identification...... .............11



C. Individual Plaintiffs Lack 
Standing to Assert Any 
Claim s........................ .............. 12

II. THE VOTER ID LAW IS A 
REASONABLE MEANS TO 
SERVE THE STATE’S 
COMPELLING INTEREST IN 
PRESERVING THE ACTUAL 
AND PERCEIVED INTEGRITY 
OF ELECTIONS........ ....................  14

A. Courts should defer to the
legislative judgment about 
the wisdom of the Voter ID 
law................................    15

B. The Indiana Legislature 
could reasonably have 
concluded that Photo ID 
was a reasonable response
to voter fraud ..........   23

1. The Legislature 
could reasonably 
have concluded that 
both the fact and the 
perception of voter 
fraud was a serious

ii

problem 24



i l l

2. The Legislature
could reasonably 
have concluded that 
Voter ID is a 
reasonable wav to 
combat vote fraud. .......... 28

3. The Legislature 
could reasonably 
have concluded that 
Voter ID would not 
seriously impact 
eligible voters who 
currently lack such
identification....................31

CONCLUSION.............................................................. 32



IV

TABLE OF AUTHORITIES

CASES

Anderson u. Celebrezze, 460 U.S. 780 (1983)..... ......  17

Burdick v. Takushi, 504
U.S. 428 (1992).... .................. ...............16, 17, 22, 23, 27

City of Los Angeles u. Lyons, 461 U.S. 95 (1983)...... 12

Clingman v. Beaver, 544 U.S. 581 (2005)  ...........  20

Cook v. Gralike, 531 U.S. 510 (2001)............... . 15

Common Cause/Georgia v. Billups, 504 
F.Supp.2d 1333 (N. D. Ga. 2007) ................ .......  4, 8, 13

Crawford v. Marion County Election Bd., 472
F.3d 949 (7th Cir. 2007).................. ......... .......... ......  7, 9

Eu v. San Francisco County Democratic Cent.
Comm., 489 U.S. 214, 231 (1989) ..............................  29

Fed. Election Comm’n v. Nat’l Right to Work 
Committee, 459 U.S. 197 (1982) ........................... ......  18

Friends of the Earth v. Laidlaw, 528 U.S. 167 
(2000) ................. ........... ............................ .................... ......... 6

Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004), cert, 
denied, 544 U.S. 923 (2005)................. ................. ......17



V

Havens Realty Corp, v. Coleman, 455 U.S. 363 
(1982)..................................................................     7

Indiana Democratic Party v. Rokita, 458
F.Supp.2d 775, 783 (2006)......      4

Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992) .....................................................................  5, 12

Metro. Wash. Airports Auth. v. Citizens for the 
Abatement of Aircraft Noise 501 U.S. 252 (1991)....... 9

New State Ice Co. v. Liebmann, 285 U.S. 262 
(1932)..............................................................................   21

Nixon v. Shrink Missouri Government PAC,
528 U.S. 377 (2000).................................................22, 30

Purcell v. Gonzalez,___U .S .___ , 166
L.Ed. 2d 1 (2006).............. ....... ..........................14, 27, 29

Reynolds v. Sims, 377 U.S. 533, 555 (1964)..............14

Rosario v. Rockefeller, 410 U.S. 752 (1973)...... ..20, 21

San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1 
(1973 ................................................................................  21

Smiley v. Holm, 285 U.S. 355 (1932)......   16

Tex. Democratic Party v. Benkiser, 459 F.3d 582 
(5th Cir. 2006)................................................................. 11

Timmons v. Twin Cities Area New Party, 520 U.S.
351 (1997)........................................................................ 16



VI

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 
(1995).... .................. ............ ............................... ........... 15

Warth v. Seldin, 422 U.S. 490, 498 (1975)..............4, 9

CONSTITUTIONAL PROVISIONS

U.S. Const, art. I, § 4............................... ................2, 15

U.S. Const, art. II, § 1 .......................................... . 16

FEDERAL STATUTES

42 U.S.C. § 1973gg................................ ....... ....... ...... ...18

42 U.S.C. § 15483............... .................................. ......... 18

49 U.S.C. § 30301............... .............................. . 18
STATE STATUTES

Ind. Code § 3-11-1-24....................................................31

Ind. Code § 3-10-1-7.2...................................................31

Ind. Code §3-ll-8-25.1(e)............................................ .31

OTHER AUTHORITIES

Comm’n on Fed. Election Reform, Report, Building 
Confidence in U.S. Elections (Sept. 2005) (Baker- 
Carter
Report)........ ........................ ................. ........ ..................25



Fund, Stealing Elections: How Voter Fraud Threatens 
Our Democracy (2004).......................................... .........25



INTEREST OF AMICUS CURIAE1

Amicus curiae Lawyers Democracy Fund,2 a non­
profit, tax exempt organization under section 
501(c)(4) of the Internal Revenue Code, has as its 
mission to promote fair and honest elections, free of 
coercion, intimidation and fraud. Lawyers Democracy 
Fund seeks to assure that all citizens are able to 
exercise their right to vote and that reasonable, 
common sense anti-fraud protections be enacted to 
prevention dilution of each person’s honest vote.

INTRODUCTION AND SUMMARY OF 
ARGUMENT

The Seventh Circuit panel below confirmed the 
common sense rationale for Indiana’s Voter ID 
requirement. Citing the 2005 Carter-Baker 
Commission Report, the panel observed that today, 
no person in the United States can board an airline, 
enter a government building, or purchase liquor or 
cigarettes, without providing photo identification. 
Voting is one of the core elements of our American 
freedoms, and the right to vote is precious. Yet the 
historic record of vote fraud in America is clear. 
Attempts to steal the vote, and thus steal a measure

Pursuant to Rule 37, letters of consent from the parties 
have been filed with the Clerk of the Court.
No counsel for a party authored this brief.in whole or in 
part, and no person or entity other than amicus, its 
members or its counsel contributed monetarily to this brief.



of each honest citizen’s franchise, are neither 
imagined, nor implausible. Unfortunately, a long list 
of such attempts can be compiled since the turn of 
this century just seven years ago.

Article I § 4 o f the Constitutional vests the States 
with power to enact procedural requirements for 
elections, including the power to prevent vote fraud. The 
Court views such requirements with deference unless 
they impose a “ severe burden” on the right to vote.

The Voter ID law does not impose a severe burden on 
the right to vote. On the contrary, by reducing vote 
fraud, it preserves the right to vote. An eligible voter 
whose ballot is nullified by an illegal vote has been 
disenfranchised just as much as an eligible voter who 
cannot cast a ballot.

More than 99% o f Indiana voters already have photo 
ID and possession o f such documentation is necessary to 
exercise numerous other constitutional rights, such as the 
right to file suit in federal court or to travel aboard 
commercial aircraft. Petitioners have not identified a 
single person whom photo ID would prevent from voting 
and the district court excluded their statistical evidence 
as “utterly incredible.”

Indigent persons or persons with religious objections 
to photo ID may cast a provisional ballot, which will be 
counted if they file an affidavit to that effect within ten 
days after the election. Non-indigent persons can obtain 
the documents necessary to obtain photo id by exercising 
a minimal amount o f  foresight and initiative. This is no

2



more burdensome than the requirement to register to vote 
before the election.

If the Voter ID requirement creates a severe burden, 
it is hard to imagine any rule requiring voter 
identification that would pass muster.

More than half the states have enacted voter ID laws, 
and the Court should allow those experiments in 
democracy to continue.

There is no question that vote fraud is, in some 
places, a serious problem. The bipartisan Baker-Carter 
Commission concluded that there is “no doubt” that 
voter fraud and multiple voting take place and “could 
affect the outcome o f a close election.” The 1600 
fraudulent ballots cast in the 2004 Washington 
gubernatorial elections substantially exceeded the 129 
vote plurality o f  the winner, but the result stood because 
no one knew who the beneficiary o f the fraud was.

Perhaps the most telling evidence however, is that 
Petitioners were unable to identify a single person 
injured by the law. This problem also confronted 
challengers to Georgia’s and New Mexico’s Voter ID 
statutes, as well as Arizona’s citizen ID statute. 
These cognizable facts before the Court lead to only 
one conclusion. This reasonable, non-discriminatory 
voting requirement is akin to advance voter 
registration requirements, and subject to limited 
constitutional scrutiny.

3



ARGUMENT
4

I. NONE OF THE PETITIONERS IN THIS 
CASE HAVE STANDING TO PURSUE 
THE CLAIMS IN THIS LITIGATION

A. Article III Standing and Case or 
Controversy

The opponents of photo identification laws in 
this case find themselves facing the same stunning 
omission that every lawsuit challenging photo 
identification requirements up to this point has 
faced—no individual or group has standing to 
challenge the law in question. Opponents again fail 
to identify a single voter that is actually harmed by 
the provisions of any photo identification for voting 
requirement. Indiana Democratic Party v. Rokita, 
458 F.Supp.2d 775, 783 (2006); see also Common 
Cause/Georgia v. Billups, 504 F.Supp.2d 1333, 1374, 
1380 (N. D. Ga. 2007).

Although the Seventh Circuit addressed the 
issue of standing very succinctly, Article III standing 
is the “ ‘irreducible’ constitutional minimum” that 
must be satisfied when a party brings a claim in 
federal court. Warth v. Seldin, 422 U.S. 490, 498 
(1975). In order to assert a claim under federal 
jurisdiction, a plaintiff must show that (1) he or she 
has suffered an actual or threatened injury (an 
“injury in fact”), (2) the injury is fairly traceable to 
the challenged conduct of the defendant, and (3) the 
injury is likely to be redressed by a favorable ruling. 
Id. at 498-99.



5
Petitioners in this case are unable to 

demonstrate even the first element of standing, 
because there is no entity or individual that has 
suffered an injury in fact. In order to show an injury 
in fact, a plaintiff must show an “invasion of a legally 
protected interest which is (a) concrete and 
particularized, and (b) actual or imminent, not 
conjectural or hypothetical.” Lujan u. Defenders of 
Wildlife, 504 U.S. 555, 560 (1992) (quotation marks 
and citations omitted).

Because of the lack of any individuals or 
entities that are harmed, if the Court reaches the 
merits of this case, there is no evidence in the record, 
or elsewhere, that it will actually grant relief to 
anyone. Indiana and Georgia first passed laws 
requiring photo identification for in-person voting in 
2005. Ind. Public Law No. 109-2005; 2005 Ga. Laws, 
Act 53. Since that time, the plaintiff organizations 
opposing these laws politically and legally have failed 
to identify any individual who has actually had his or 
her right to vote violated by requiring photo 
identification for in-person voting. Common 
Cause/Georgia, 504 F.Supp.2d at 1374, 1380; Rokita, 
458 F.Supp.2d at 783.

Petitioners can be divided into two distinct 
groups: (1) the organizational plaintiffs, including the 
Indiana Democratic Party, which are asserting claims 
on behalf of their members or in their own right; and 
(2) the individuals who are asserting individual and 
representative claims, including the state legislators. 
Each group lacks standing in this case.



6

B. The Organizational Plaintiffs Lack
Standing to Assert Any Claims

1. The Democratic Party and other
organizations cannot represent claims of 
their members in this case

Only under limited circumstances may 
organizations represent claims of their members. See 
Friends of the Earth v. Laidlaw, 528 U.S. 167, 181 
(2000). In order for an organization to pursue an 
action on behalf of its members, the organization 
must show at least one member who has standing in 
their own right. Id. Like the plaintiffs in Georgia, 
the organizational plaintiffs in this case, including 
the Indiana Democratic Party, fail to locate a single 
member of any organization that has standing to sue. 
Rokita, 458 F.Supp.2d at 817 (“None of the 
Organization Plaintiffs has identified a single 
member who does not already possess the required 
photo identification and has an injury beyond ‘mere 
offense’ at having to present photo identification in 
order to vote which, as we have said, does not confer 
standing.”); see also Common Cause/Georgia, 504 
F.Supp.2d at 1380. As discussed below, the 
requirement of photo identification does not result in 
a denial of equal protection, and thus the district 
court’s determination that the Democratic Party can 
assert claims on behalf of its members is incorrect. 
Rokita, 458 F.Supp.2d at 813-814. Thus, the 
organizational plaintiffs do not have standing to sue 
on behalf of their members.

2. The organizational plaintiffs cannot 
assert claims in their own right



7

The Seventh Circuit found that the Indiana 
Democratic Party had standing to pursue the claims 
outlined in the complaint independently, then quickly 
moved to the merits of the case. Crawford v. Marion 
County Election Bd., 472 F.3d 949, 951-952 (7th Cir. 
2007). The Seventh Circuit relied on Havens Realty 
Corp. v. Coleman, 455 U.S. 363 (1982), to establish 
that the Indiana Democratic Party suffered an injury 
in fact, because the Indiana Democratic Party claims 
it would devote resources it would not otherwise 
spend to get its supporters to the polls if the state 
enforced the photo identification requirement. 
Crawford, 472 F.3d at 951. However, the assertion 
that the Indiana Democratic Party would reallocate 
resources is only that— an assertion. The Indiana 
Democratic Party has not demonstrated that it 
actually reallocated any of its resources, nor are there 
any facts, beyond vague assertions, to suggest that it 
plans to do so. Rokita, 458 F.Supp.2d at 816.

This Court should not stretch Havens to reach 
the same conclusion as the Seventh Circuit. In 
Havens, this Court found an organization had 
standing because counteracting the discriminatory 
housing practices of the defendants resulted in the 
organization devoting significant resources away 
from its core mission. Havens, 455 U.S. at 379. 
Havens is distinguishable because here, as opposed to 
the context of the discriminatory housing practices, 
an injury in fact cannot be clearly demonstrated. 
Resources the Indiana Democratic Party would 
expend for elections with or without the photo 
identification requirement relate to the exact same 
mission: getting Democratic voters to the polls.



8
Unlike the situation in Havens, where the 
organization had to devote specific resources away 
from its core mission, the method by which the 
Indiana Democratic Party performs or encourages its 
activities does not detract from its core mission. Id.

In addition, the organization in Havens had 
already expended significant resources to counteract 
the defendants’ policies, id., while the Indiana 
Democratic Party has expended nothing outside of its 
legal fees, only saying it will devote some funds to the 
subject in the future. Rokita, 458 F.Supp.2d at 816. 
The district court in Common Cause/Georgia refused 
to extend Havens when the NAACP made an 
argument almost identical to that of the Indiana 
Democratic Party in this case. Common 
Cause/Georgia, 504 F.Supp.2d at 1372. The district 
court found that the “injury” of reallocating funds is 
completely of the making of the organization, without 
evidence that the organization had expended any 
funds as a result of the photo identification law. Id. 
at 1372-1373. As is the case here, and unlike the 
organization in Havens, the NAACP also only said it 
would devote funds at some point in the future. 
Havens, 455 U.S. at 379; Common Cause/Georgia, 
504 F.Supp.2d at 1372-1373.

Extending the holding of Havens, as the 
Seventh Circuit did in this case, undermines the 
concept of standing by allowing any organization to 
create standing by merely claiming that a law would 
result in a reallocation of its funds at some point in 
the future. Id. at 817. The requirement of an “injury 
in fact” is reduced to a mere “allegation of possible 
harm,” and potentially allows every organization to



9
assert standing in its own right instead of bringing 
claims on behalf of its members. This Court and 
other federal courts face the distinct possibility of 
rendering a large number of opinions where no actual 
case or controversy exists. It is a major change in 
U.S. law to conclude that the “ ‘irreducible’ 
constitutional minimum” of standing by showing an 
injury in fact is not required for an organization to 
pursue a claim in federal court. Warth, 422 U.S. at 
498-99.

But even if this Court did extend Havens, there 
is no clear evidence that those less likely to possess 
photo identification are members of the Indiana 
Democratic Party. The Seventh Circuit relies on 
conclusory statements related to the likelihood of 
lower-income individuals to lack photo identification 
to support the concept that Democrats are less likely 
to possess photo identification, but the Seventh 
Circuit does not point to a specific study that yields 
that same conclusion. See Crawford, 472 F.3d at 951. 
The district court in Georgia dismissed a similar 
attempt to show a connection between partisan and 
income-based likelihood to lack photo identification 
under a Daubert motion. Common Cause /Georgia, 
504 F.Supp.2d at 1371. The district court in Indiana 
discussed at length why the expert report offered by 
Petitioners to show discrimination was generally 
unhelpful. Rokita, 458 F.Supp.2d at 802-809.

Petitioners’ reliance on Metro. Wash. Airports 
Auth. v. Citizens for the Abatement of Aircraft Noise 
501 U.S. 252 (1991) is also inappropriate in this case. 
While Petitioners argue that this Court found 
standing for an organization based on frustration of



10
the group’s primary purpose, this Court focused on 
the alleged personal injury to the respondents due to 
“increased noise, pollution, and danger of accidents,” 
before also citing the increased difficulty for the 
group to fulfill its purpose. Id. at 264-265. The 
assertion of frustration of purpose without more was 
insufficient to establish an injury in fact. Id. If 
frustration of purpose alone is a sufficient basis for 
finding jurisdiction without any additional injury 
requirement, then groups wishing to challenge laws 
could create organizations with a “purpose” that 
would be affected by a law without ever having to 
show any injury in fact. Extending the doctrine of 
standing to this point renders it almost meaningless.

If the Court finds that frustration of purpose 
alone is sufficient to confer standing, Metro 
Washington still does not provide support for 
Petitioners’ position. Id. CAAN had a very clear 
purpose in Metro Washington: to reduce noise and 
aircraft activity at Washington National Airport. Id. 
at 265. There is a clear connection between the 
challenged authority and a reduction in aircraft 
activity. Id. The primary purpose of the Indiana 
Democratic Party is not nearly as clear-cut as the 
purpose of CAAN, and there is no clear connection 
between photo identification requirements and the 
purpose of the Indiana Democratic Party. The 
Indiana Democratic Party will undertake the same 
activities regardless of whether the photo 
identification requirement is enforced. Thus, Metro 
Washington is inapplicable to this case.

Tex. Democratic Party v. Benkiser is also 
distinguishable in that it involved a very clear



11
financial injury that occurred to the state party, not a 
vague potential injury. 459 F.3d 582 (5th Cir. 2006). 
In Benkiser, the Fifth Circuit upheld the standing of 
the Texas Democratic Party because the party had a 
clear injury in fact. Id. at 586. If the state allowed 
the withdrawal of then-Congressman Tom DeLay, the 
Texas Democratic Party would be required to raise a 
large amount of funds for a specific time frame to run 
a more competitive race. Id. The court could readily 
identify the actual injury in Benkiser. Id. In 
contrast, the Indiana Democratic Party merely offers 
vague assertions of changes to internal accounts 
based on the photo identification requirement. 
Rokita, 458 F.Supp.2d at 816. The court in Benkiser 
also relied on the harm to the election prospects of 
the Texas Democratic Party, providing another basis 
for an injury in fact that the Indiana Democratic 
Party is unable to show in this case, because it cannot 
conclusively state the partisan impact of the law. 
Benkiser, 459 F.3d at 586-587.

3. The organizational plaintiffs cannot assert 
claims by those who forget or lose their 
photo identification

The district court incorrectly determined that 
the Indiana Democratic Party has the ability to bring 
claims on behalf of voters who forget or lose their 
photo identification. Rokita, 458 F.Supp.2d at 812. 
An individual who forgets photo identification is no 
different from an individual who forgets any other 
form of identification that may be required by his or 
her state, or that was required by the state of Indiana 
prior to passage of the photo identification 
requirement. Additionally, the Indiana Democratic



12
Party is unable to identify these voters. Id. at 811- 
812. It is entirely possible that the voters who forget 
their identification are part of different political 
parties. Id. The Court has made clear that a mere 
hypothetical harm is not enough to grant standing to 
a particular plaintiff. City of Los Angeles v. Lyons, 
461 U.S. 95, 101-102 (1983). The Court should not 
rely on this potential issue to create standing in this 
case.

The Indiana Democratic Party and the other 
organizational plaintiffs do not have standing to 
assert claims on behalf of individual members or in 
their own right. They have not suffered a legally- 
cognizable harm to themselves, and have no members 
which have standing to bring an independent action.

C. Individual Plaintiffs Lack Standing to
Assert Any Claims

The individual plaintiffs do not have standing 
to pursue claims that their constitutional rights are 
violated by the photo identification requirements. In 
order to assert a claim, the individual plaintiffs must 
show an actual or imminent invasion of a legally- 
protected interest. Lujan, 504 U.S. at 560. The 
individual plaintiffs in this litigation simply cannot 
show that any legal interest is even affected, let alone 
invaded. Some of the individual plaintiffs in this case 
already have photo identification, and others have 
ready access to photo identification, including one 
plaintiff that actually works at the Bureau of Motor 
Vehicles (“BMV”). Rokita, 458 F.Supp.2d at 798-799.

Contrary to the finding of the district court, 
merely not having photo identification does not confer



13
standing on an individual. The district court in 
Common Cause/Georgia recognized that failure to 
possess photo identification does not invade a legally- 
protected interest, because there are clear 
alternatives available to vote without identification. 
504 F.Supp.2d at 1373-1374. Individuals who lack 
photo identification could easily obtain a free card 
from the state, or the individuals could choose to vote 
by absentee ballot with no photo identification 
requirement. Id. at 1377-1379; Rokita, 458 
F.Supp.2d at 812-813, 827. While the Rokita court 
found that the imposition of a barrier to voting is 
sufficient to show invasion of an interest and grant 
standing to individual plaintiffs, it failed to take into 
account that no barrier has actually been erected by 
the statute because of the available alternatives to in- 
person voting. Rokita, 458 F.Supp.2d at 813-814. 
Individuals can obtain absentee ballots and freely 
vote without photo identification. Id. at 812-813, 827. 
Individuals can go to the BMV and obtain free 
identification cards that allow them to vote in person 
if they so choose. Id. Individuals can vote a 
provisional ballot and return with sufficient 
identification prior to certification of the election 
results. Id. The court in Common Cause/Georgia 
correctly recognized that simply requiring photo 
identification is not by itself a burden on the right to 
vote. 504 F.Supp.2d at 1377-1378.

Because no individuals are harmed by the 
photo identification law, there are no individuals with 
standing to pursue any claims in this litigation. 
Without any individual plaintiffs, the legislators 
cannot represent the interests of their constituents or 
any other individuals who may be affected by the



14
photo identification law. See Laidlaw, 528 U.S. at 
181.

In spite of the best efforts of the Petitioners, no 
group or individual before this Court has standing to 
pursue the claims in the Petition. No individual or 
group has demonstrated the invasion of any legally- 
protected interest by the actions of the defendants, 
and cannot show standing to pursue any claims.

II. THE VOTER ID LAW IS A REASONABLE 
MEANS TO SERVE THE STATE’S
COMPELLING INTEREST IN
PRESERVING THE ACTUAL AND
PERCEIVED INTEGRITY OF ELECTIONS.

There are two ways to disenfranchise a voter. One 
is to deny an eligible voter the opportunity to cast a 
ballot. The other is to allow an ineligible voter to cast 
a ballot that negates the properly-cast vote of an 
eligible voter. The latter is just as effective a means 
of disenfranchisement as the former:

[T]he right of suffrage can be denied by a 
debasement or dilution of the weight of a 
citizen’s vote just as effectively as by wholly 
prohibiting the free exercise of the franchise.

Purcell v. Gonzalez, ___U.S. ____ , 166 L.Ed. 2d 1, 4
(2006), quoting Reynolds u. Sims, 377 U.S. 533, 555 
(1964).

The inability of petitioners and their amici to 
recognize that simple truth infects every aspect of 
their briefing, from the standard of review to the



deference due to the State of Indiana to the 
reasonableness of the Voter ID law.

A. Courts should defer to  the
legislative judgm ent about the 
w isdom  o f  the V oter ID law

This Court has always recognized the difference 
between substantive restrictions on the right to vote 
and procedural requirements for the exercise of that 
right. The Constitution specifically delegates to the 
states the authority to implement the latter. Because 
the Voter ID law does not impose a severe burden on 
the right to vote, the Court should defer to the 
legislative judgment about the wisdom and necessity 
of such a law to avoid corruption in the electoral 
process.

This Court has held that many voting 
requirements were “constitutional because they 
regulated election procedures and did not even 
arguably impose any substantive qualification. U.S. 
Term Limits, Inc. v. Thornton, 514 U.S. 779, 835 
(1995) (emphasis original). Accord, Cook v. Gralike, 
531 U.S. 510, 523 (2001).

Article I § 4 of the Constitution grants “broad 
power,” Cook, 531 U.S. at 523,” to the states to 
regulate the procedure for elections: “The Times,
Places, and Manner of holding Elections for Senators

15



1 6

and Representatives, shall be prescribed in each 
State by the Legislature thereof.”3

The Court has held that this delegation includes, 
not just the nuts and bolts of holding elections, but 
fraud prevention as well:

[Tjhese comprehensive words embrace 
authority to provide a complete code for 
congressional elections, not only as to times 
and places, but in relation to notices, 
registration, supervision of voting, protection 
of voters, prevention of fraud and corrupt 
practices, counting of votes, duties of 
inspectors and canvassers, and making and 
publication of election returns . . . .

Smiley v. Holm, 285 U.S. 355, 366 (1932) (emphasis 
added).

Voting being a fundamental right, the deference 
due the state legislature is not unlimited. The Court 
must weigh “the character and magnitude of the 
asserted injury” against “the precise interests” the 
state is seeking to serve. Burdick v. Takushi, 504 
U.S. 428, 434 (1992). A restriction deserves strict 
scrutiny only when it places “severe burdens on 
plaintiffs’ rights.” Timmons v. Twin Cities Area New 
Party, 520 U.S. 351, 358 (1997). When the burden is 
not severe, the review is “less exacting” and a “State’s 
important regulatory interests will usually be enough

3 Article II § 1 also vests authority in the state legislatures to 
determine the method of choosing electors for the 
presidency.



17
to justify reasonable, non-discriminatory 
restrictions.” Id., quoting Burdick, 504 U.S. at 434 
(internal punctuation omitted). Accord, Anderson u. 
Celebrezze, 460 U.S. 780, 788 n.9 (1983) (“ [w]e have 
upheld generally applicable and evenhanded 
restrictions that protect the integrity and reliability 
of the electoral process”).

For a variety of reasons, the Court should find 
that the burden here imposed is insufficiently severe 
to warrant strict scrutiny. Instead, the Court should 
defer to the expertise of the legislature.

First and foremost, as the Seventh Circuit 
recognized, strict scrutiny “would be especially 
inappropriate in a case such as this, in which the 
right to vote is on both sides of the ledger.” 472 F.3d 
at 852. The objective of voter ID is to prevent an 
ineligible voter from disenfranchising an eligible 
voter by nullifying the latter’s ballot:

[T]he striking of the balance between 
discouraging fraud and other abuses and 
encouraging turnout is quint-essentially a 
legislative judgment with which we judges 
should not interfere unless strongly convinced 
that the legislative judgment is grossly awry.

Griffin v. Roupas, 385 F.3d 1128, 1131 (7th Cir. 2004), 
cert, denied, 544 U.S. 923 (2005).

In the context of campaign finance laws, the Court 
has refused to “second-guess a legislative 
determination as to the need for prophylactic 
measures where corruption is the evil feared. Fed.



18
Election Comm'n v. Nat’l Right to Work Committee, 
459 U.S. 197, 210 (1982). As vote fraud is one type of 
electoral corruption, the Court should apply the same 
standard here.

The National Voter Registration Act, the so-called 
Motor Voter Law, 42 U.S.C. § 1973gg et seq., and the 
voter id provisions of the Help America Vote Act 
(HAVA), 42 U.S.C. § 15483, both make it
substantially easier to register to vote. The minimal 
voter ID provisions in HAVA make it considerably 
easier for ineligible voters to register.

Suppose an eligible voter challenged these 
statutes on the ground that they increased the 
likelihood of vote fraud. One doubts that this Court 
would apply strict scrutiny to such a challenge. 
Instead, the Court would defer to Congress on just 
where on the continuum the line should be drawn.

Second, photo ID is a widely used form of 
identification that virtually everyone has and is 
relatively easy to get. The district court found as a 
fact that more than 99% of all Indiana voters already 
had photo ID in the form of a valid driver’s license. 
458 F.Supp. 2d at 807. Indiana’s requirements for 
obtaining photo ID are not materially different from 
those in the federal National Driver Register, 49 
U.S.C. § 30301.

Photo ID is essential for the exercise of numerous 
rights. To exercise the constitutional right of access 
to the federal courts, one must present valid photo ID 
even to enter the building. To exercise one’s 
constitutional right to travel to the seat of



government to petition Congress, photo ID is a 
prerequisite to boarding the aircraft. Most banks will 
not disburse cash without a photo ID; many 
commercial office buildings deny access to visitors 
without photo ID. As the district court held:

The incontrovertible fact that many public and 
private entities already require individuals to 
present photo identification substantially 
bolsters the State’s contention that among all 
the possible ways to identify individuals, 
government-issued photo identification has 
come to embody the best balance of cost, 
prevalence, and integrity.

458 F.Supp. 2d at 826 (internal punctuation omitted).

Third, the district court found as a matter of fact 
that petitioners could not identify a single eligible 
voter who would be unable to cast a ballot due to the 
photo ID law, 458 F.Supp. 2d at 822, and that 
petitioners’ statistical evidence was “utterly 
incredible and unreliable.” Id. at 803:

[I]t is a testament to the law’s minimal burden 
and narrow crafting that Plaintiffs have been 
unable to uncover anyone who can attest to the 
fact that he/she will be prevented from voting 
despite the concerted efforts of the political 
party and numerous interested groups who 
arguably represent the most severely affected 
candidates and communities.

19

Id. at 823.



20
Fourth, the law provides an escape hatch for those 

who forget their photo ID or cannot obtain one for 
religious or economic reasons. The voter may cast a 
provisional ballot and validate that ballot by 
appearing at the clerk of courts or county election 
board within ten days of the election and providing 
photo ID. If the voter has religious objections to 
photo ID, or is indigent, the voter can execute an 
affidavit to that effect and the provisional ballot will 
be counted.

This is no more burdensome than a state 
requirement that a voter register, in order to vote, 
“within a state-defined reasonable period of time 
before an election” — a burden that this Court 
characterized as “minimal.” Clingman u. Beaver, 544 
U.S. 581, 590-91 (2005) (internal punctuation
omitted). It is considerably less onerous than the 
rule upheld in Rosario v. Rockefeller, 410 U.S. 752 
(1973), requiring such registration eight months 
before the presidential primary and 11 months before 
the non-presidential primary.

To be sure, it is theoretically possible to imagine 
an eligible first-time applicant, not indigent, who 
encounters unexpected difficulties in obtaining the 
necessary primary documents. But this is a one-time 
problem; once in possession of photo ID, the applicant 
need not submit any more primary documents.

It is also a problem that can be easily resolved by 
a little foresight and a little diligence. If the 
applicant starts the process of obtaining primary 
documents early enough before the election, those



21
obstacles can be overcome in time to be in possession 
of photo ID once the election rolls around.

In Rosario, the voter had to have enough foresight 
and initiative to act eight months before the 
presidential primary. The Court held that was not an 
undue burden in light of the importance of preserving 
“the integrity of the electoral process.” 410 U.S. at 
761. It is inconceivable that any significant number 
of people could not track down primary documents in 
eight months.

Fifth, applying strict scrutiny to this modest 
reform would almost surely end any further efforts to 
stamp out vote fraud. Justice Brandeis was right: 
“ [0]ne of the peculiar strengths of our form of 
government” is “each State’s freedom to ‘serve as a 
laboratory; and try novel social and economic 
experiments.”’ San Antonio Sch. Dist. v. Rodriguez, 
411 U.S. 1, 50 (1973), quoting New State Ice Co. u. 
Liebmann, 285 U.S. 262, 280 (1932) (Brandeis, J., 
dissenting).

Prompted by the Baker-Carter Report, many 
states are tinkering with their election laws to root 
out vote fraud. Perhaps some of those efforts will 
work better than photo ID. Or perhaps there are 
better ways to implement photo ID than Indiana s. 
Rodriguez held that “ [n]o area of social concern 
stands to profit more from a multiplicity of 
viewpoints and from a diversity of approaches than 
does public education,” 411 U.S. at 50, and the same 
is true of efforts to eradicate vote fraud.



22
The flexible and deferential legal standard 

announced in Burdick permits the states to function 
as laboratories of democracy. It recognizes that the 
legislature is far better equipped than courts to draw 
the delicate balance between encouraging all eligible 
voters to cast ballots and discouraging ineligible 
voters from trying to do so.

Petitioners and their amici argue that they are 
entitled to strict scrutiny if they can prove that photo 
ID prevents so much as one eligible voter from voting. 
This Court has never adopted so draconian a rule. 
Burdick itself recognizes that every election rule 
affects “at least to some degree” an eligible voter’s 
right to vote. 504 U.S. at 433:

Accordingly, the mere fact that a State’s 
system creates barriers tending to limit the 
field of candidates from which voters might 
choose does not of itself compel close scrutiny.

Id. (citations and internal punctuation omitted).4

Instead, the Court required a balancing test, 
weighing the “magnitude” of the injury against the 
state’s interests. 504 U.S. at 434. As the Seventh 
Circuit recognized in the instant case, the “fewer 
people harmed by a law, the less total harm there is 
to balance against whatever benefits the law might 
confer.” 472 F.3d at 952. See Nixon v. Shrink

The Court has repeatedly equated ballot access and voting 
rights cases as equivalent for purposes of constitutional 
analysis. Burdick, 504 U.S. at 438, quotingJBullock v. 
Carter, 405 U.S. 134, 143 (1972).



Missouri Government PAC, 528 U.S. 377, 396 (2000) 
(“a showing of one affected individual does not point 
up a system of suppressed political advocacy that 
would be unconstitutional”).

One suspects that petitioners and their amici 
would not be thrilled if their logic were applied to 
laws like the Motor Voter Law or HAVA that are 
designed to encourage voter registration. Such laws 
inevitably make vote fraud easier. If the 
disenfranchisement of a single voter is enough to 
require strict scrutiny, then a single act of vote fraud 
requires strict scrutiny and, most probably, 
invalidation of these laws. That is no more 
reasonable than ousting photo ID if it excludes a 
single eligible voter.

Petitioners simply refuse to recognize that vote 
fraud disenfranchises eligible voters just as much as 
refusing to count their ballots in the first place. 
Reasonable people can, of course, disagree on where 
the line should be drawn. But that is precisely why 
Burdick adopts a deferential standard of review that 
the Court should apply in the instant case, just as it 
did in Nat 7 Right to Work.

B. The Indiana Legislature could 
reasonably have concluded that 
Photo ID was a reasonable response 
to voter fraud

The district court made a number of factual 
findings, none of which are seriously contested. 
Those factual findings clearly establish that the 
Indiana legislature could reasonably have concluded

23



24
that vote fraud was a serious problem; that photo ID 
was a reasonable solution; and that photo ID would 
not seriously impact eligible voters.

1. The Legislature could reasonably have 
concluded that both the fact and the 
perception of voter fraud was a serious 
problem.

The district court held that, to the extent that 
Indiana was required to provide empirical support for 
its concerns about vote fraud, “it has clearly done so.” 
458 F.Supp. 2d at 826. The foundation for that 
factual finding is the conclusions of the bi-partisan 
Baker-Carter Report and the experience of other 
states with serious vote fraud.

The Comm’n on Fed. Election Reform, Report, 
Building Confidence in U.S. Elections (Sept. 2005) 
(Baker-Carter Report) (co-chaired by former 
Democratic President Jimmy Carter) concluded that 
“there is no doubt” that both vote fraud and multiple 
voting occur and “could affect the outcome of a close 
election.” App. 138. The Report also concluded that 
the “electoral system cannot inspire public confidence 
if no safeguards exist to deter or detect fraud or to 
confirm the identity of voters.” Baker-Carter Report 
at 18.

The most egregious illustration of actual fraud is 
the 2004 Washington State gubernatorial election, in 
which the winner had a plurality of 129 votes. In 
post-election litigation, the trial court concluded that 
more than 1,600 ballots had been fraudulently cast. 
Since the court could not determine how many of



25
those fraudulent votes had been cast for the winner, 
it refused to set aside the election. State S.J. Ex. 3 at 
4-5; 19.

Other recent examples of election fraud, accepted 
as true by the district court, include:

• In Milwaukee in the 2004 general
election, more that 200 ineligible felons 
voted; more than 100 persons voted
twice, used fake names or false 
addresses, or voted in the name of dead 
people. More than 4,500 votes were cast 
than voters listed. State S.J. Ex. 4 at 2- 
4.

• In St. Louis, in the 2000 general
election, there were more than 1,000 
fraudulent ballots cast, including 14
dead people, 68 multiple votes, and 79 
vacant-lot votes. Fund, Stealing 
Elections: How Voter Fraud, Threatens 
Our Democracy (2004) at 64.

« In the 1997 Miami mayoral election, 
dozens and perhaps hundreds of persons 
not residing in the city cast fraudulent 
ballots. State S.J. Ex. 10 at 1-2.

• The Department of Justice has
conducted more than 180 investigations 
into voter fraud since 2002, making 89 
charges and securing 52 convictions. 
State S.J. Ex. 2 at 23.



26
• Dead people voted in Georgia, Illinois, 

and Pennsylvania. State S.J. Ex. 12-14; 
18. The Seventh Circuit has held that 
voter fraud “is a serious problem in U.S. 
elections generally” and Illinois has a 
“particularly gamey history” of voter 
fraud. Roupas, 385 F.3d at 1130-31.

That is precisely the kind of empirical information 
on which this Court has held a legislature may 
reasonably rely in making policy. In Nixon, the Court 
rejected a First Amendment challenge to Missouri’s 
restrictions on campaign contributions based on the 
State’s interest in avoiding corruption. The evidence 
on which the Court relied included:

• The state treasurer gave the state’s 
banking business to a bank that had 
contributed $20,000 to the treasurer’s 
campaign.

• The state auditor got $40,000 from a 
brewery and $20,000 from a bank.

• A political action committee linked with 
an investment bank gave $420,000 to 
candidates in northern Missouri.

• A state representative was accused of 
taking kickbacks for sponsoring 
legislation.

• A state attorney general was indicted for 
using the state workers compensation 
fund to benefit campaign contributors.



Nixon, 528 U.S. at 393-94. The Court described this 
evidence as “not presenting] a close call.” Id. at 393. 
Accord, Buckley v. Valeo, 424 U.S. 1, 27 n.28 (1976) 
(relying on the Seventh Circuit’s description of 
incidents of corruption caused by campaign 
contributions).

Petitioners and their amici make much of the fact 
that no one in Indiana has ever been charged with 
voter fraud based on impersonating another voter. 
The inference they seek to draw from that fact is that 
such fraud never occurs. As the Seventh Circuit 
observed, it was at least as reasonable for the 
legislature to infer that the “extreme difficulty of 
apprehending a voter impersonator” explains the 
absence of such prosecutions. 472 F.3d at 953. 
Under Burdick, the Court should defer to the 
legislature on which inference is most plausible.

The legislature was also entitled to consider the 
ample evidence of a public perception that voter fraud 
was a serious problem. This Court has recognized 
that the appearance of corruption in elections is “ [o]f 
almost equal concern” as actual corruption. Nixon, 
528 U.S. at 389, quoting Buckley, 424 U.S. at 26, and 
cases there cited (internal punctuation omitted). The 
“avoidance of the appearance of improper influence is 
also critical . . .  if confidence in the system of 
representative government is not to be eroded to a 
disastrous extent.” Id. (internal punctuation
omitted). Accord, Purcell,___U.S. a t ____, 166 L.Ed.
2d at 4 (“ [confidence in the integrity of our electoral 
processes is essential to the functioning of our 
participatory democracy”).

27



28
There is substantial evidence in the record 

proving that the public believes, by wide margins, 
that vote fraud occurs:

• Before the 2000 elections, a Rasmussen 
poll showed that 59% of the electorate 
believed that there was “some” or “a lot” 
of vote fraud. State S.J. Ex. 22 at 1.

• After those elections, a Gallup poll 
showed that 67% of adults had only 
“some” or “very little” confidence in the 
way votes were cast. State S.J. Ex. 23 at 
8-9.

• A 2004 Zogby poll found that 10% of 
voters believed their votes were not 
accurately counted. Fund, Stealing 
Elections at 2.

• More than 13.6% of Americans believed 
that the 2004 presidential vote was 
unfair. State S.J. Ex. 24 at 1.

Thus, the Indiana legislature had an ample basis 
for believing that vote fraud was a serious problem 
requiring a reasonable response

2. The Legislature could reasonably have 
concluded that Voter ID is a reasonable 
wav to combat voter fraud.

There is no question that combating voter fraud is 
a compelling state interest, and for precisely the 
same reason that access to the ballot box is a



29
fundamental right: voter fraud disenfranchises
eligible voters whose votes are nullified by fraudulent 
ones. Voter ID is a reasonable means to accomplish 
that compelling interest.

“A State indisputably has a compelling interest in 
preserving the integrity of its election process.”
Purcell, ___U.S. a t ____, 166 L.Ed. 2d at 4, quoting
Eu v. San Francisco County Democratic Cent. Comm., 
489 U.S. 214, 231 (1989) (internal punctuation 
omitted). Petitioners and their amici admit as much.

We have already alluded to some of the reasons 
why voter ID is a reasonable response to the problem 
of voter fraud: virtually everyone has government- 
issued photo ID; such ID is required for a host of 
activities; and a voter without photo ID can cast a 
provisional ballot and then validate that ballot with 
relative ease.

Perhaps the best evidence that voter ID is a 
reasonable response to the problem is that the 
bipartisan Baker-Carter Commission recommended 
it. The Baker-Carter Report recites that:

• Effective voter ID is one of the “bedrocks 
of a modern election system.” Report at 
10.

• “[I]n close or disputed elections, and 
there are many, a small amount of fraud 
could make the margin of difference.” 
Report at 18.



30
• “Photo IDs are currently needed to board 

a plane, enter federal buildings, and 
cash a check. Voting is equally 
important.” Id.

Indeed, the Baker-Carter Report is considerably 
stricter than the Indiana law here at issue with 
respect to provisional ballots. The Report 
recommends that voters be allowed to cast such 
ballots. After the 2010 elections, however, it 
recommends that the voter only have 48 hours to 
validate the provisional ballot, compared with ten 
days under Indiana law. And it does not have the 
escape hatch for indigent voters or those with 
religious objections to photo ID. Report at 20-21.

Moreover, there is a wide and growing consensus 
in favor of voter ID. In 2001, only 11 states required 
it. By September 2005, when the Baker-Carter 
Commission issued its report, 24 states required it 
and 12 more were considering doing so. Report at 18. 
Indiana’s requirements for verifying citizenship are 
quite similar to those set forth in the National Driver 
Register, 49 U.S.C. § 30301.

Finally, there is strong public support for voter 
ID. As the district court found, 458 F.Supp. 2d at 
794, a 2004 Zogby poll found that 82% of respondents, 
including 75% of Kerry supporters, favored photo ID. 
Nixon relied on similar, though less overwhelming 
public support, in finding Missouri’s campaign 
finance restrictions to be reasonable. 528 U.S. at 394. 
It should do the same with voter ID.



31
Thus, the legislature had ample basis for believing 

that voter ID is a reasonable way to combat vote 
fraud.

3- The Legislature could reasonably have 
concluded that Voter ID would not 
seriously impact eligible voters who 
currently lack such identification.

Likewise, the Legislature had ample reason to 
conclude reasonably that Voter ID would not 
seriously impact eligible voters who currently lack 
such identification. First, there are the exemptions 
discussed above, principally the exemption for 
absentee ballot voting by mail. Among those 
automatic entitled to cast absentee ballots are 
Indiana’s disabled and senior voters over age 65. Ind. 
Code § 3-11-1-24. In addition, residents of state- 
licensed care facilities who vote at polling places 
within those facilities are exempted from the Voter 
ID requirement. Ind. Code § 3-10-1-7.2; 3-11-8- 
25.1(e). Thus, the Legislature provided exemptions 
for foreseeable categories persons who were less 
likely to be able to travel to obtain Voter ID. Finally, 
the Voter ID law allowed any person who failed to 
present photo identification at the polls to complete a 
provisional ballot, and to provide the photo 
identification to an election office within 10 days. 
Thus, the Indiana law is replete with exemptions 
adopted to mitigate potential impacts of the Voter ID 
Law. The fact the law has been administered without 
any indication of problems with compliance since its 
enactment in 2005, combined with the 2006 data 
indicating that 99% of Indiana’s voting age 
population had the requisite Voter ID, demonstrates



32
the Voter ID law does not “severely burden” voting 
rights, and is constitutional.

CONCLUSION

For the foregoing reasons, this Court should 
affirm the judgment of the Seventh Circuit.

Respectfully submitted.

HARVEY M. 
TETTLEBAUM 
HUSCH &
EPPENBERGER, LLC 
235 East High Street 
Jefferson City, MO 
65102
(573) 635-9118

MARK G.ARNOLD 
HUSCH &
EPPENBERGER, LLC 
190 Carondalet Plaza 
Suite 600
St. Louis, MO 63105 
(314) 480-1500

CHARLES H. BELL, JR. 
Counsel of Record 

BELL, MCANDREWS & 
HILTACHK, LLP 
455 Capitol Mall 
Suite 801
Sacramento, CA 95814 
(916) 442-7757

Attorneys for the Amicus Curiae



CERTIFICATE OF WORD COUNT

As required by Supreme Court Rule 33.1(h), I certify 
that the document contains 7,130 words, excluding 
the parts of the document that are exempted by 
Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the 
foregoing is true and correct.

Executed on December__, 2007.

Charles H. Bell, Jr.



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