Crawford v. Marion County Election Board – Oral Argument – January 09, 2008

Media for Crawford v. Marion County Election Board

Audio Transcription for Opinion Announcement – April 28, 2008 in Crawford v. Marion County Election Board

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John G. Roberts, Jr.:

We’ll hear argument first today in Case 07-21 and 07-25, Crawford v. Marion County Election Board and Indiana Democratic Party v. Secretary Rokita.

Mr. Smith.

Paul M. Smith:

Mr. Chief Justice, and may it please the Court: This case involves a law that directly burdens our most fundamental right, the right to vote.

Those Indiana voters who lack the identification now required by the new photo ID law must overcome substantial practical and financial burdens before they can continue to exercise their constitutional right.

Now, the State says that those burdens are justified by the need to stamp out the scourge of voter impersonation fraud at the polls, but this Court has made clear many times that such a justification should not just be accepted at face value, but instead it should be scrutinized to assure that the claimed State interest is both real and sufficiently weighty to justify the burden being imposed on constitutional rights.

Antonin Scalia:

Before… before we get to that, can we talk about standing a little?

Who are the… who are the complainants here?

Paul M. Smith:

There are many plaintiffs, Your Honor, including the ones that the courts below found have standing, the Democratic Party.

Antonin Scalia:

Courts below are sometimes wrong.

Paul M. Smith:

Yes, Your Honor, absolutely, and especially when I’m a petitioner I agree with you on that.

But in this case, Your Honor, the Democratic Party was found to have standing correctly, I believe, on at least two grounds, associational standing as well as what you might call haven standing, the organizational interest being impaired by virtue of this law.

Antonin Scalia:

Well, they still have to identify individuals who are members.

Now, what does it take to be a member of the Democratic Party here?

Paul M. Smith:

Your Honor, in Indiana you become a member of the Democratic Party by participating in party affairs.

They did identify members who are activists, who are poll workers, and that’s why the district court said that as, as to the equal protection claim those people were sufficient to satisfy associational standing.

Antonin Scalia:

I thought… I thought they took the position that anybody who voted or intended to vote Democratic is a member of the Democratic Party.

Paul M. Smith:

Well, there are different degrees of membership, different ways to become a member, as this Court has recognized–

Antonin Scalia:

Is there any way in which you can say… and I thought this was the theory of associational standing… that this individual has voluntarily given this organization the right to represent that person for particular purposes?

Paul M. Smith:

–There is no formal method of induction as you would have in the Elk’s Club or something, Your Honor.

But there clearly are methods by which you become a participant in the affairs of the party.

For example, to vote in the primary you have to aver that you have either supported Democratic candidates in the last election or intend to in a future election.

Antonin Scalia:

But that doesn’t mean that I’m willing to have the Democratic Party represent me for all sorts of purposes.

And these people can bring their own individual challenges.

I mean, I’m not questioning their ability to do it.

But, but why is the Democratic Party their representative?

Paul M. Smith:

Because they have… the Democratic Party is an association of people joined together to elect candidates of a particular kind and those people include many people who are burdened by this law.

This seems to be the absolutely quintessential case for associational standing, Your Honor.

David H. Souter:

As I understand it, though, Mr. Smith, the trial court didn’t rely on, simply on the associational standing of the Democratic Party, did it?

Paul M. Smith:

No, that’s correct, Your Honor.

Well, the court of appeals relied as well on Havens Realty and said that the organizational interests of the party are being impaired by virtue of the fact that this is putting a burden on them achieving their goal, the Democratic Party’s goal, of electing its candidates.

David H. Souter:

And is doing so by forcing them to get people properly identified.

Paul M. Smith:

Extend resources getting people, get their identification.

It’s very much like the Metropolitan Washington Airports Authority case which we cited in our brief, which involved a nonprofit organization aimed at trying to keep the noise level down at National Airport that was impaired by an unconstitutional statute in that case as well.

Antonin Scalia:

That organization had members.

I mean, you did join that organization.

Paul M. Smith:

Well, Your Honor–

Antonin Scalia:

And they identified members who would be, who would be annoyed by the noise.

Paul M. Smith:

–I’d note, Your Honor, that in the Hunt case itself there were no members.

The Court said it doesn’t really matter because the State agency that had associational standing in Hunt functioned for all purposes as the representatives of those, of those apple farmers, but there was no formal membership organization, no members per se at all.

But the Court said that shouldn’t make a difference because there’s really no actual functional difference between the two situations.

I would certainly submit–

Anthony M. Kennedy:

I just think it’s hard to confine your rationale if you say that any association could sue.

If it says, you know, there are people that if they knew what we were doing, if they knew this problem they would really want us to sue on their behalf, I don’t know if I’m going to confine your rationale.

Paul M. Smith:

–Well Your Honor, the thing that confines the rationale is it has to be something that relates as well to the purpose of the organization, of the association, the reason why these people are bound together as a group, and that is of course to get people to vote and vote to support… support the goals of the organization, support the candidates, the nominees of the organization.

John G. Roberts, Jr.:

We can limit your standing argument to… I guess it’s based on the affidavits of Ms. Holland and Ms. Smith, the one who is a clerk for the Democratic Party and the other who is a judge for the Democratic Party.

We don’t have to agree with you that anybody who votes, might vote Democratic, is enough to give you standing.

Paul M. Smith:

But we also have other people in the record, Your Honor… for example, Theresa Clemente, others who are active poll workers, activists in the party, who… had been polled and found that they didn’t have IDs and that they would be burdened by the difficulty of getting IDs.

So that that… there is specific standing evidence in there of specific people who, much more than just your average voter, are active in party affairs.

They may not have a… be card carrying members of the Democratic Party, but they are as much a part of the Democratic Party as anybody possibly could be, who were identified in response to interrogatories, about 9 or 10 of them, and were found to be satisfactory for purposes of standing by the district court on the equal protection claim.

Now, in addition I would note as I suggested to Justice Souter, you don’t have to go to the associational standing because the Democratic Party clearly is injured in its own right as an organization.

Now, if I could turn to the merits then, the–

Antonin Scalia:

Excuse me.

Even in its own right, it has to identify somebody that’s a member or not.

Paul M. Smith:

–No.

When it’s in its own right the association, the organization, is injured, Your Honor.

Now, the question… if what you’re suggesting, is there enough evidence here that people are actually being prevented from voting?

Antonin Scalia:

Exactly, Democrats in particular, I suppose.

Paul M. Smith:

A great deal of evidence in the record of the burdens that are imposed on people who try to comply with this law and continue exercising their constitutional right to vote.

John G. Roberts, Jr.:

Well, I understood Judge Barker to say that you had not come up with a single instance of somebody who was denied the right to vote because they didn’t have a photo ID.

Paul M. Smith:

Well, Your Honor, the record in this case was made when an election had not yet happened.

Paul M. Smith:

So that comment, while it was certainly made, I don’t quite understand its significance.

This case was brought to try to prevent an irreparable loss of constitutional rights in advance of the implementation of this law.

I think it had been used in two little towns in ’05, Montezuma, Indiana, but other than that–

John G. Roberts, Jr.:

So elections were conducted under this law?

Paul M. Smith:

–I’m not even… there were a couple of hundred people that had voted under the law, but nobody else had yet, at that point.

Now, the–

Antonin Scalia:

Well, did you have anybody who said, I don’t have a voter ID?

Paul M. Smith:

–Yes, we did, Your Honor.

Antonin Scalia:

I plan to come in this next election, I plan to vote, and I don’t have a voter ID card?

Paul M. Smith:

Yes, we did, Your Honor.

That’s the 9 or 10 people who came from the poll worker survey.

There was also a considerable amount of testimony about other people who said they wanted to vote, who spoke to many of the other plaintiffs, Mr. Crawford, the NAACP chapter.

There’s a lot of other plaintiffs who also submitted evidence of people saying: I don’t have an ID, I’m not going to be able to get one, I’m not going to be able to vote.

John G. Roberts, Jr.:

But why… and they’re not going to be able to get one even though the State will provide them with one if they don’t have one, subject to some identification?

Paul M. Smith:

Yes, Your Honor.

But what the State did in 2002 was it ratcheted up the difficulty of getting one by requiring for the first time that you have an original certified birth certificate that you paid for and that… and then you have to go through the hoops of what kind of identification you need for that.

Samuel A. Alito, Jr.:

Well, is it your position that a State can’t require any form of identification and can only require a signature, or would some lesser form of identification than Indiana has required be constitutional?

Paul M. Smith:

Your Honor, it may well be possible that there’s certain situations that it could require it.

Each case is a balancing test.

As the Court said in Timmons, you have to make hard judgments on the specific facts of each case and identify both the State interest being served, the incremental State interest being served, and the degree of the burdens.

Samuel A. Alito, Jr.:

What was the answer to my question?

Is any form of voter identification beyond a signature permissible or not?

Paul M. Smith:

If it’s readily available and not especially burdensome and there is some reason to think that it is preventing a fraud of some sort, serving some–

Anthony M. Kennedy:

But clearly you answer all of those questions that you’ve just posed, that you’ve just responded with, “no”.

So then your answer to Justice Alito should be no.

Paul M. Smith:

–Well, Your Honor, it is true–

Anthony M. Kennedy:

Although that leads to the next question, is whether or not there are ways in which the… the central purpose of this law can be preserved but it could be less stringent.

But I’d like you to respond to both of those things.

Paul M. Smith:

–Well, it is certainly true that, in fact, there is no evidence in this record of any significant amount of fraud that is still occurring with the existing system of voter identification.

Anthony M. Kennedy:

That wasn’t… that wasn’t the problem I had with your answer to that question.

Anthony M. Kennedy:

You posed a number of questions to Justice Alito, or a number of responses, but to each one of those your own answer in the brief was no, and therefore your question… the answer to Justice Alito’s question should be no, there is no system that you know of that can impose a photo ID.

Paul M. Smith:

I think… I think that the current system works just fine.

So if there’s any degree of burden being imposed on the voter by some additional identification requirement, then I would say it’s unconstitutional.

Ruth Bader Ginsburg:

Mr. Smith–

Anthony M. Kennedy:

Your answer is no.

Paul M. Smith:

Yes, Your Honor.

Ruth Bader Ginsburg:

–suppose at the time of registration there was a photograph taken right in the registration place and on the spot they gave you an ID with that photo, and everybody who registers would get one and there isn’t any question of paying money to get a birth certificate.

Would that be satisfactory?

Ir that… if you could make a photographic ID universally available, you would still have the problem of the religious objectors, but wouldn’t everybody else be covered?

Paul M. Smith:

If you had a world in which that were true, Your Honor, I think that would be potentially constitutional.

That’s a very different world than the one we live in, and–

John G. Roberts, Jr.:

That would be potentially constitutional?

Paul M. Smith:

–Yes, Your Honor.

John G. Roberts, Jr.:

Okay.

So we should ignore your religious objection argument in this case?

Paul M. Smith:

Well, I was assuming that we would make some additional exemptions for particular people with those kinds of problems, if people can’t have one.

If the question is, if everybody has a photo ID in their pocket is it constitutional to require them to show them at the voting booth, the answer to that I think is yes.

Antonin Scalia:

Well, do we know that that religious exemption won’t be made?

Paul M. Smith:

Excuse me, Your Honor?

Antonin Scalia:

Do we know that that religious exemption won’t be made?

Nobody’s asserted it.

case.

Paul M. Smith:

No, I’m not… I’m not–

Antonin Scalia:

No, no.

I mean in this In this case you’re claiming there’s a problem for people who, for religious reasons, don’t want to have their photograph taken.

Do we know that if that’s the reason that they assert, I can’t get the photograph, the State will say you can’t vote?

Paul M. Smith:

–I must be misunderstanding.

We have every reason to think that they will let them vote.

The only problem with that exemption, like the indigency exception, is that it’s kind of gratuitively burdensome in that you have to go down to the county seat to vote every time; you can’t vote in your polling place because you have to fill out this affidavit every time you vote.

Ruth Bader Ginsburg:

And you could, you could do it twice.

Ruth Bader Ginsburg:

You could make the two trips, one to your local place and one to the distant place.

Paul M. Smith:

Either way, your real voting place is going to be the county clerk’s office in the county seat, forever.

That’s… it’s not that they won’t do it; it’s–

John G. Roberts, Jr.:

Well, how far away is the furthest county seat for somebody in the county,–

Paul M. Smith:

–I don’t know the–

John G. Roberts, Jr.:

–County seats aren’t very far for people in Indiana.

Paul M. Smith:

–No.

If you’re an indigent person, Your Honor, in Lake County, in Gary, Indiana, you’d have to take the bus 17 miles down to Crown Point to vote every time you want to vote.

And if you’re indigent that’s a significant burden, and–

Antonin Scalia:

It’s not a burden if you’re not indigent?

Paul M. Smith:

–Well, it’s… it’s less of a burden, Your Honor, considerably less of a burden.

You–

Antonin Scalia:

17 miles is 17 miles for the rich and the poor.

Paul M. Smith:

–public transportation, because the person presumably has no access to an automobile because they don’t have a driver’s license and they’re indigent and they’re living in Gary, Indiana.

John G. Roberts, Jr.:

We have… the record shows that fewer than 1 percent of people in Indiana don’t have a photo ID.

Paul M. Smith:

That is not what the record shows, Your Honor, and it’s not what the district court said.

I think it’s… it would be really a travesty if this Court decided the case on that assumption.

What the district court said is if you compare the voting age population in the census to the total number of driver’s licenses and IDs that have been issued, you get that disparity of 43,000 or 1 percent, but what the district court went on to say is this is probably not accurate because the total of licenses and IDs includes all the people who have died and left the State and their licenses are still unexpired.

John G. Roberts, Jr.:

Well, so do the voting rolls.

I thought the district court found 41–

Paul M. Smith:

No, no.

The population–

John G. Roberts, Jr.:

–Mr. Smith.

Paul M. Smith:

–So sorry.

John G. Roberts, Jr.:

–41.4 percent of the people on the voting rolls in Indiana were either dead or they were duplicate entries.

Paul M. Smith:

But she wasn’t looking at the voting rolls.

She was comparing population in the census as of 2005 with the driver’s license records.

John G. Roberts, Jr.:

Do you take issue with the 41.4 percent figure for bad entries on the voting registration rolls?

Paul M. Smith:

No, I have no reason to… it may have gotten better now.

They apparently have instituted a lot of efforts in the last 3 years to make it better, but–

John G. Roberts, Jr.:

And this is one of them, I suppose, requiring photo ID?

Paul M. Smith:

–No, I was referring to actually cleaning up the voter rolls in compliance with the consent decree they signed with the United States.

John G. Roberts, Jr.:

Well, don’t you think if you have the voter rolls with a significant number of bad registrants, either dead or duplicates, that that presents a significant potential for fraud?

Paul M. Smith:

I suppose.

I don’t know if I can say significant.

The situation has existed for now a number of years, and the salient fact here is that there’s not a single recorded example of voter impersonation fraud.

John G. Roberts, Jr.:

Well, that’s because it’s less of an issue.

If somebody wins an election by 500,000 votes, you may not be terribly worried if some percentage were cast by fraud, but you might look to the future and realize there could be a closer election and there… it’s a type of fraud that, because it’s fraud, it’s hard to detect.

Paul M. Smith:

No, it’s actually not, Your Honor.

It’s the type of fraud that the Elections Commission said… found is unlikely, the most unlikely, because it’s not that hard to detect.

When you’re going into the polls and saying, I’m Joe Smith, you’re dealing with a neighborhood person who knows a lot of people who are there, you have to match that person’s signature.

And if that person shows up later on to vote–

John G. Roberts, Jr.:

But the problem with the duplicate entries is there may be two entries for John Smith because John Smith has moved and the voter registration hasn’t been updated.

So all you need is somebody else to go in and say: I’m John Smith, this is my address.

And later in the day somebody else comes in and says: I’m John Smith and this is my address.

And because they’re duplicates it’s really difficult to check.

Paul M. Smith:

–Well, the duplicates, presumably, are in two different places, right.

So they would vote in two different places.

But if… what the… the fraudfeasor doesn’t know is where the real John Smith is going to vote.

So if he goes in and votes in one place and says, well, I’m going to… I expect he’s going to go in the other place, sooner or later, if you had any significant amount of this kind of fraud occurring, people would be coming in and saying I can’t vote.

Somebody says I already voted.

It’s not happening and, indeed, every single indication in this record is that the evidence of this kind of fraud occurring, to call it scant is to overstate it.

Antonin Scalia:

The people who are dead or have moved away would certainly not be objecting.

Paul M. Smith:

No, Your Honor.

I was talking about the disparity between the number of people in the voting age population and the number of licenses and saying you can’t assume it’s only a one percent differential.

It’s actually more like an eight or nine percent differential.

Antonin Scalia:

I wasn’t talking about that.

I was talking about whether there is a genuine threat of fraud which the State is moving to eliminate–

Paul M. Smith:

The question is–

Antonin Scalia:

–and your assertion that, you know, it’s not much of a problem because the person whom you’re impersonating would find out about it.

Antonin Scalia:

I mean… but that’s certainly not the case for people who have moved away or people, you know, the people in the graveyards that are still on the rolls.

Paul M. Smith:

–It’s certainly possible that someone could commit this kind of a crime.

Antonin Scalia:

I’d say likely.

Paul M. Smith:

Well, one of the things that makes it less likely is if you try to actually affect an election you need to sway a lot of votes.

And in order to do that this way you’d have to have 100 or 200 or 500 co conspirators, each of them assigned an identity, learning the signature of that person, and–

Stephen G. Breyer:

You don’t really… I mean, that’s what I wonder if there is no such evidence.

How could you get evidence?

It used to be common maybe urban legends, but of political bosses voting whole graveyards of dead people.

All right.

Now, that would be almost impossible to catch, I think.

Someone walks in, saying: I’m Joe Smith.

He doesn’t say: I’m Joe Smith dead.

He says, I’m Joe Smith, and he signs something.

And the poll worker looks at it and the signature looks very weird.

Well, what’s the poll worker supposed to do?

He’s not going to go disrupt the election.

And is there going to be a policeman there to follow this person home?

Of course not.

So that’s their claim.

Their claim is that we have a lot of anecdotes and there is a certain kind of fraud that you really just can’t catch at the poll.

Paul M. Smith:

–Your Honor–

Stephen G. Breyer:

Now, what’s your response to that?

Because that’s their argument on the other side.

Paul M. Smith:

–First of all, on the point of the anecdotes, I would encourage you to look at the Brennan Center brief.

Stephen G. Breyer:

I know there are arguments on both sides.

But at the heart of this is what was Judge Posner’s claim and others that this isn’t the kind of fraud that you can just dismiss and say it never happens because the person would walk into the poll later and try to vote.

What they are talking about is what Justice Scalia was talking about, and I’m simply trying to focus your answer on that part of the question.

Paul M. Smith:

Well, Your Honor, many kinds of fraud do get caught, and they are no more easily detected than this kind of fraud to be detected.

But this kind of fraud is not being caught.

No one has been punished for this kind of fraud in living memory in this country.

Paul M. Smith:

This is not–

Stephen G. Breyer:

Well, they say that’s because you can’t catch it.

Paul M. Smith:

–Well, but Your Honor–

Stephen G. Breyer:

How would you catch it, which is my question.

Paul M. Smith:

–First of all… first of all, you talk about deterring it.

You deter it by the signature match, by having to have the same age, by having to get past people who know a lot of the people in the precinct, and by having very severe criminal penalties.

And then you have–

Samuel A. Alito, Jr.:

If this is not a problem at all, how do you account for the fact that the Commission on Federal Election Reform that was co chaired by former President Carter and former Secretary of State Baker recommended a voter ID requirement, and many other countries around the world have voter ID requirements?

Paul M. Smith:

–What they recommended, Your Honor, is exactly what Justice Ginsburg anticipated, which is get everybody the cards, and then we’ll be like Europe, and everything will work really fine, and it’ll actually help the poor to have these IDs for a lot of other purposes.

Ruth Bader Ginsburg:

As I understand, they were going to have some years in between when their proposal was enacted, and they were going to have a mobile unit going around to all the neighborhoods, lots of advertising, because a premise of that Carter-Baker report was that everybody would easily and costlessly get this photo ID.

Paul M. Smith:

I would encourage the Court to refer to the Democratic Party Exhibit 18, which is an article by Carter, President Carter, and Secretary Baker, following on their report, saying, look, there’s a problem here; that 12 percent of the voting age population of this country doesn’t have a license; we did not recommend this being a mandatory thing until we get those licenses in those people’s hands.

Samuel A. Alito, Jr.:

Well, why would they even require that if it’s not any problem at all?

Doesn’t it at least show that it is a problem of some dimension, maybe not as severe as Indiana claims, but there would be no need for any sort of photo ID problem, requirement, if there were no problem whatsoever.

Isn’t that true?

Paul M. Smith:

Some States don’t have signature matches.

There may have been a minimal amount of additional benefit in some States from having that added.

That was a decision they ultimately made, with some dissents.

The reality, though, is if you do it not their way, but the Indiana way, which is to say you need an ID, we’re not going to help you get it, in fact we’re going to ratchet up the requirements for making you get it, and we’re going to charge you money for it, then what you have is a very different system.

Then you have–

John G. Roberts, Jr.:

They help you get it.

They say if you don’t have an ID we’ll give you one.

If you don’t have a photo ID, come in and we’ll give you one.

Paul M. Smith:

–But what the record shows is that 60 percent of the time, when people go in and ask for one, they get sent home, because they don’t have the right documentation because the rules–

John G. Roberts, Jr.:

What documentation did President Carter and Secretary Baker propose to require for their photo IDs?

Paul M. Smith:

–Your Honor, I think they were very strong on having this birth certificate requirement, as well.

So they… they were talking about the real ID law and that sort of thing.

So I’m not specific about what the report says on that, but they certainly thought there should be… obviously, in the wake of 9/11 there is some concern about giving out these things too readily.

So I’m reasonably sure they supported a birth certificate requirement as well.

Samuel A. Alito, Jr.:

Well, if you concede that some kind of voter ID requirement is appropriate, the problem that I have is where you draw the line on a record like this where there’s nothing to quantify in any way the extent of the problem or the extent of the burden, how many people will actually be prevented from voting or significantly burdened from voting as a result of the requirement?

How do we tell whether this is on one side of the line or the other side of the line?

Paul M. Smith:

Well, it is a difficult area of the law for you for that reason, Justice Alito.

But if you like at Timmons what it says is there’s no litmus test, there’s no escaping the hard judgments.

This is the area where the courts have to be not too deferential even though there are hard judgment calls about matters of degree, because this is an area where the concern is that the Legislative Branch and the Executive Branch are going to abuse their power to regulate the electoral process to find subtle ways to skew the outcome on election day.

As John Hard Ely says, this is an area where judicial review is the most important, the most legitimate.

And so you can’t shy away from that even though there are difficult matters of balancing involved and–

David H. Souter:

Well, you’re telling us that, you know, we’ve got to be careful and it’s difficult.

But Justice Alito’s question is: What are we supposed to look at, how are we supposed to do it?

Paul M. Smith:

–You are supposed to look at how difficult it is to get the ID, what assistance is provided or not being provided, how much it costs.

David H. Souter:

Let’s get down… let’s get down to the question of quantification, which is one of the issues that he raised.

What’s your response to the issue that there is no quantification of the actual burden measured by the number of voters who are going to be adversely affected?

What’s the answer to that?

Paul M. Smith:

The answer is that there’s plenty of evidence in the record about the number of people in this country who don’t have IDs.

David H. Souter:

Well, let’s talk about Indiana.

What have you got… what is… what is your best argument for Indiana?

Paul M. Smith:

The best argument for Indiana is if you take the district court’s 43,000 figure and you adjust it for the two factors, death and departure, that I mentioned before, the number becomes more like 400,000 people in the State of Indiana who lack IDs and are of voting age, eligible… voting age population people.

David H. Souter:

And how many of them are going to suffer from an unreasonable denial of an opportunity to get the ID which the State will provide through the Bureau of Motor Vehicles?

How do we quantify that?

Paul M. Smith:

It is obviously for each person a different matter of degree.

The burdens here are along a whole spectrum because some people don’t have a birth certificate, some people have… don’t have a birth certificate, but they have money.

Some people don’t have a birth certificate and they don’t have money.

David H. Souter:

Well, I know that.

That’s why it’s a tough issue.

But how do… how are we going to… how is a court going to arrive at some kind of a bottom line judgment on this issue?

Paul M. Smith:

Well, because you… you basically have to take into account all of those factors: How many people are potentially affected; how difficult it is; how similar it is to, say, a poll tax, for example, and say… and then look at what purpose is being served here.

Is there any real incremental benefit to anything by–

David H. Souter:

Okay, that’s on… that’s on the other side of the issue.

Paul M. Smith:

–Right.

David H. Souter:

But walk… walk us through… if you were writing the opinion and what you wanted to put in the opinion was a reasonable estimate of the number of people who are going to be substantially burdened in having… who do not now have the identification, substantially burdened in getting it.

What approximate number would you arrive at and how would you… how would you get to it?

Paul M. Smith:

Well, Your Honor, I would say of that 400,000 voting age people, probably about half of them are registered voters.

Paul M. Smith:

It stands to reason that most of them are lower income people, and that therefore, the burden even of having to pay for the birth certificate is a significant one.

That… so that a very substantial portion of that 200,000 people in order–

John Paul Stevens:

Mr. Smith, is there anything in the record about the extent to which the political parties help people get their IDs, as they sometimes drive them to the polls for voting and so forth, the part they play in this process?

Paul M. Smith:

–I’m not aware of anything, Your Honor.

This is a fairly new law at the time this record was being put together in 2005.

But certainly, the parties–

John Paul Stevens:

Isn’t it fair to presume that the parties would play a role in helping people get registered and getting to the polls?

Paul M. Smith:

–But, you know, what there is in the record, Your Honor, is the testimony from the Lafayette Urban Ministry, which helps the needy in Lafayette, Indiana.

They had 150 people come to them and say: We want your help to get IDs.

A year later, less than 75 had succeeded because they found themselves caught in this Catch-22, where they went to get a birth certificate, they didn’t have a driver’s license, they didn’t have the other kinds of very narrowly specified IDs they needed, and so they were basically in this bureaucratic maze, and they couldn’t get out of it even with the kind of assistance you’re imagining, Your Honor.

If I might reserve the balance of my time for rebuttal.

John G. Roberts, Jr.:

Thank you, Mr. Smith.

Mr. Fisher.

Thomas M. Fisher:

Mr. Chief Justice, and may it please the Court: There is no evidence in the record of any kind suggesting that 400,000 people in Indiana lack this form of identification.

The only evidence in the record–

David H. Souter:

I take it you accept the figure of, what, about 50,000, to be further discounted by those who might vote absentee and so on?

Thomas M. Fisher:

–We’ve never had a problem.

In fact, that data was submitted by the plaintiffs.

It came from the Bureau of Motor Vehicles and was matched against census data.

I don’t think there’s ever been any dispute about the accuracy of the record.

Now, the judge did acknowledge that there might be some outliers one direction or another, but those cannot possibly account for 10 times the number.

David H. Souter:

No, I just want to… I just want to know what your figure.

Mr. Smith was starting with 400 and then getting it down 2 and so on.

And my recollection in the red brief is that you said, all right, let’s take the 43,000 figure.

I forget what you discounted it for, but it got it down to 25,000.

Some of those would be able to vote absentee, but this… I take it you’re conceding that, at least subject to some discount, there are probably about 25,000 people who may be affected by this adversely.

Is that clear?

Thomas M. Fisher:

Well, I think we would say that that’s the number… that’s the number that could conceivably be inconvenienced by this law.

Now, to put that in perspective, I think you have to compare it, for example, to the number of people who are not registered to vote, because there again that’s an incidental burden.

That is something that inconveniences some people.

Thomas M. Fisher:

And we’re talking about 35 times more… in terms of a percentage, we’re talking about 66.8 percent or so of the population that reports being registered to vote, far short of the percentage based on the calculations of the district court or anything in the ballpark of that that don’t have photo identification.

So we’re talking about an infinitesimal portion of the electorate that could even be, conceivably be burdened by this.

David H. Souter:

Well, isn’t that a little bit of a stretch, too, when you say “infinitesimal”?

I mean, if you take your two thirds figure and so on, isn’t it fair to say that you’re probably going to get down to something like 10,000 people or 10,000 plus who are going to be affected in the sense that they’re going to have to scurry around if, if they’re going to get the appropriate ID?

Thomas M. Fisher:

And at that level, you’re talking about less than a half a percent of the total electorate.

This is… this is–

David H. Souter:

Okay.

But 10… isn’t the concern over 10,000 voters a sufficiently substantial concern to… to be considered as something more than merely de minimis and is something that should count in a facial challenge?

Thomas M. Fisher:

–Well, if that’s going to be the case, then you’re going to have a big problem with voter registration, which is a far bigger problem for more voters.

That is a procedure that the Court has long accepted, has endorsed multiple times, and yet continues–

David H. Souter:

Well, we haven’t endorsed… I mean, correct me if I’m wrong, but we haven’t endorsed a registration procedure that would require as much documentation and as much travel as… as the… as this voter ID procedure would have.

Thomas M. Fisher:

–The point I’m making is that if we’re going to look at the percent conceivably burdened by the law, then voter registration is called into question.

And I don’t think that the Democratic Party argues against that.

I think in their reply brief they accepted that that’s a possible response.

Now, it’s also terribly significant that we don’t have anybody in front of this Court in this case who’s injured by this law.

Antonin Scalia:

And why, why can’t the people injured by this law appear themselves and say the law can’t be applied to us?

You seem to accept that a facial challenge is appropriate here.

Why is… some different kind of a facial challenge.

I thought in the usual facial challenge you have to show that there is no situation in which the law cannot be constitutionally applied.

Thomas M. Fisher:

I agree with that.

I don’t think that that… that we take any issue with that notion.

Antonin Scalia:

Then why are we arguing about whether there is one half of one percent of the electorate who may be adversely affected and as to whom it might be unconstitutional?

That one half of one percent, if and when it is sought to be applied to them, have a cause of action to say you can’t apply it to me.

But why… what precedent is there for knocking down this entire law on a facial challenge when I think everybody agrees that in the vast majority of cases it doesn’t impose a significant hardship?

Thomas M. Fisher:

None.

I think that that’s exactly the point.

That’s why we argue there’s no standing.

David H. Souter:

You agree that if you’re going to take the… if this Court takes the Salerno standard, there can never be a facial challenge to a registration requirement, a voter ID requirement.

In other words, it’s not merely that this facial challenge would be knocked out; there never could be one.

Thomas M. Fisher:

Well, I’m not sure that’s the case.

Thomas M. Fisher:

And if you look back at Marston, the voter registration–

David H. Souter:

Salerno says unless there are no cases, the facial challenge is inappropriate.

And that… in the real world that will never be true with respect to a… a voter ID law, will it?

Thomas M. Fisher:

–Well, I hope not.

But I think that the Court has shown–

David H. Souter:

It never will be true, will it?

Thomas M. Fisher:

–Right.

David H. Souter:

It never be… if that’s going to be the standard, there will never be a facial challenge.

Thomas M. Fisher:

I’m not sure that that’s terribly significant, because if you have an as applied challenge–

David H. Souter:

There never will be there one, will there?

Thomas M. Fisher:

–As to an as applied challenge?

I don’t know why not.

David H. Souter:

No, as to a pre enforcement facial challenge to a law like this.

Thomas M. Fisher:

I think it could be pre enforcement and as applied in a way that could have ultimately–

David H. Souter:

Yes, but I want you to answer my question.

Thomas M. Fisher:

–I’m sorry.

Yes, I think that’s true.

David H. Souter:

We’re not going to have facial challenges here, are we?

Thomas M. Fisher:

Right.

David H. Souter:

Okay.

Antonin Scalia:

Does that scare you, Mr. Fisher, that there can’t be a facial challenge?

Thomas M. Fisher:

No.

Antonin Scalia:

I mean, every facial challenge is an immense dictum on the part of this Court, isn’t it?

Thomas M. Fisher:

I think that’s right.

Antonin Scalia:

This Court is sitting back and looking at the ceiling and saying, oh, we can envision not the case before us, but other cases.

Maybe it’s one half of one percent or maybe it’s 45 percent, who knows.

But we can imagine cases in which this law could be unconstitutional, and therefore, the whole law is unconstitutional.

That’s not ordinarily the way courts behave, is it?

Thomas M. Fisher:

I should hope not.

Antonin Scalia:

Now, we’ve done that in the First Amendment area.

Ruth Bader Ginsburg:

That is not the case that you are confronting.

Thomas M. Fisher:

That’s right.

Ruth Bader Ginsburg:

I mean, the reason they are bringing a facial challenge is because the horse is going to be out of the barn.

They will have the election, and just what they are afraid of could happen, that the result will be skewed in favor of the opposite party, because there are people who have not been able to vote.

So, if you’re going to talk about what is the impact of this, they are in this bind after the election… well… they’ve always… already lost that one.

Now, there is something in the briefs that happened after this case was instituted, but we know from Marion County that there were 34 people who were not able to have a vote counted.

And of those 34, only two ended up qualifying after the fact.

So, we know that in that one particular county, most of the people who were unable to satisfy the requirement initially ended up not satisfying it.

Is that… I mean that’s not hypothetical.

That’s real.

But it does give you some confirmation that it isn’t mere speculation that there are going to be many people who will not… whose vote will not count.

Thomas M. Fisher:

With respect, Your Honor, for all we know, those may have been fraudulent ballots.

It may well be the case that all 32 did not show up to validate their votes are fraudulent.

Ruth Bader Ginsburg:

It’s the same board that said in all our experience, in all of our memory, there has never been an impersonator.

Thomas M. Fisher:

And that goes back to how we would know, because without an ID check, it’s impossible to detect this kind of fraud.

Stephen G. Breyer:

Well, if you’re worried about fraud–

Thomas M. Fisher:

I’m sorry.

Stephen G. Breyer:

–If you’re worried about fraud, what I don’t understand, and I’d like to track it through with you, is the registration system.

As I read the Indiana voter registration application, all a person has to do to register is to write in, enclose a utility bill that has his name and address, and if he doesn’t have a photo ID, he can write the four numbers of his Social Security; and if he doesn’t have that either he doesn’t have to do anything, and they will give him a number… and you mail it in.

And you’re registered.

So all a person who have to do if he wants to be fraudulent is make out a fraud one of those, and he has a photo ID; he can go to the polls.

So my question to you is this: given that system of registration, focusing on the issue before us, why don’t you just say and we’ll give to you… you put on… if you don’t have a photo ID, we’ll give you one.

Now there it would not stand as an obstacle; that apparently is what Georgia has done.

And it doesn’t require people to go out and spend $10 or $5 or something digging up their birth certificate, which if you tried to do, is quite a job for many people.

And therefore, you’d have all the things you want.

All you would do is with the 43,000 people who don’t have the IDs, you’d say we’ll get you one.

No big deal.

You have a photo machine there when they come in to register; they have to go down; you take a picture of them and you hand it to them.

And I would think that that less restrictive way would satisfy your anti fraud interests far better than the way you’ve chosen, but I leave my judgment out of it.

I just would like you to talk through why that isn’t a less restrictive way, which is far better in achieving your anti fraud interests, or at least as good.

Thomas M. Fisher:

Well, because I think we want to have an idea that has some integrity to it.

I mean, this is a balancing test that the legislature itself went through, which is to say they wanted to adopt a form of identification that might be effective and has been proven effective and has been accepted the world over as the standard form of identification.

And–

Stephen G. Breyer:

We are going to give… all we are doing is, we will give you the photo.

It has nothing to do with validity.

That photo proves that Mr. Smith who comes in and asks for it is the same Mr. Smith who registered to vote.

And that’s all your system does in the first place.

So what is the answer to that?

Thomas M. Fisher:

–I think again that we, on the front end part of it is we are hamstrung on how we can regulate voter registration, in part by the National Voter Registration Act.

Let me just make that part of it clear.

Stephen G. Breyer:

I’m not arguing about that.

I’m saying your whole… I’ll repeat it once more.

I’m saying your whole system is a system designed to assure that the person at the voting booth is the same as the person who registers.

I accept that, absolutely right.

And I’m simply saying given that, why didn’t you say Mr. Proto… Mr. Likely, like to register:

“Come in. “

“If you don’t have a photo ID, we will give you one. “

Now, what’s the objection to that?

Thomas M. Fisher:

I think in part it’s the administrative apparatus.

I mean, we are buying into… right now into a system that already exists, and in fact with voter registration at the DMV as it’s required, in many ways that is what we have.

You go to the DMV anyway for other things.

Antonin Scalia:

Suppose you… you have your photograph taken when you register.

You’re really an out of state person, you go in and register, you make up an address, you come in, you have your photograph taken; it proves that you were the person that registers.

It doesn’t prove that you were the person that lives at that address, or that you are of such and such an age and whatnot, which the… the means of identification that you require would show, wouldn’t it?

John Paul Stevens:

But you don’t… you don’t have the photo identification required at registration, do you?

Thomas M. Fisher:

No, we don’t.

That’s right.

Antonin Scalia:

You can’t, can you?

Thomas M. Fisher:

I think there are problems with that.

That… that was a different battle–

Anthony M. Kennedy:

And even so is, there anything that prohibits the State from confirming the validity of the registration at the polling place?

Thomas M. Fisher:

–No.

I think that’s the main point here, which is it’s at that point where the ballot is being cast, which is where we want identification, and where we want to–

John Paul Stevens:

Why wouldn’t you have the same from in being sure the registration is correct?

I don’t understand that.

Thomas M. Fisher:

–Well, we… well, I think we may very well, but I think the policy–

John Paul Stevens:

Why wouldn’t you require photo ID then?

Thomas M. Fisher:

–Well, I think the policy struck nationally, under the motor voter, is to have an easy registration system, so that it may be problematic to introduce additional limits.

John Paul Stevens:

Is it the policy to have it tougher to vote than to register?

That doesn’t make sense to me.

Thomas M. Fisher:

Well, I think the theory is easy–

Antonin Scalia:

The national policy it to make it both easy to register and easy to vote.

Thomas M. Fisher:

–Well, and tough to cheat, hopefully, is the backside of that, which is what the idea is trying to do.

John G. Roberts, Jr.:

Mr. Fisher, you make… rely on the argument that 40 percent of the registrants… or not registrants, the people on the… yes, registrants… on the voter list are… are not accurate.

That argument is a little difficult to… to take because what you’re saying is we do such a lousy job on registration that we should be able to do a… have a more stringent voting requirement.

Why do you do such a lousy job on registration?

Thomas M. Fisher:

Well, I think that… that part of the responsibility there does lie again with the National Voter Registration Act which limits how we may maintain those lists.

The problem has grown since–

John G. Roberts, Jr.:

I thought you were sued by the Federal Government because you did such a bad job.

Thomas M. Fisher:

–There may be… there’s part of it is the responsibility on our end, but part of it is also the… the hoops we have to jump through pursuant to the National Voter Registration Act, and we’ve got a situation unfortunately where with inflated voter lists, with reports of fraud around the country, the General Assembly is generally concerned about voter confidence and the legitimacy of elections, and that’s precisely what this law is trying to target.

Trying to reassure voters–

Ruth Bader Ginsburg:

How does Indiana stack up against other States in the inflation of the voter rolls?

Thomas M. Fisher:

–We are among the most inflated.

I can’t give you precise ranking but the expert that we brought forward said we are among the most inflated.

Ruth Bader Ginsburg:

And you are under a consent decree to do something about that?

Thomas M. Fisher:

That’s right, and we are taking those steps.

Now I think it’s important to bear in mind that… that the parties to the consent decree at the State level, while they can’t identify individuals who have… have dormant registrations, and they can send those names, names that can be canceled to the local authorities, the local authorities are under no… no responsibility under the consent decree or otherwise to… to cancel those.

And in fact the expert report that we had indicated that there were a number… in 1998, I think… a number of duplicates and decedent registrations that were sent to the local authorities, only 30 percent of which were canceled.

David H. Souter:

Well, are you making the argument that you can place a heavier burden on voters to identify themselves because your State officials refuse to follow the law?

Thomas M. Fisher:

Well, I think it’s part of it, is–

David H. Souter:

I think that’s the argument you were just making.

Thomas M. Fisher:

–Well–

David H. Souter:

Even when we identify the duplicates, the local officials are still leaving them in the polls.

I mean, surely you’re not going to rest your case on that, are you?

Thomas M. Fisher:

–Well, I think the larger point is that when we’ve got a situation where there is an obvious gap in security at the polls, where the public expects to show ID… and… as they would in any ordinary, everyday situation… that is going to create a lack of confidence, particularly when combined with what we have ended up with.

David H. Souter:

But you’re still making the argument that there’s a lack of confidence because our local officials won’t cull the rolls of dead voters.

Thomas M. Fisher:

Not explicitly.

That is true; that’s part of the argument, but the other part is that there is a reasonable and obvious step to take to ensure that there is no fraud at the polls.

David H. Souter:

Maybe there is a reasonable, obvious step you can take to make your officials obey the law when you tell them how to do it.

Thomas M. Fisher:

Well, we are limited even at that by the NVRA.

David H. Souter:

Now wait a minute.

Are you telling me that you are limited by some Federal statute from preventing local officials… I’m sorry, from forcing local officials to take the action to cull the rolls of dead voters, when you have identified those dead voters for them?

Thomas M. Fisher:

No, I’m not saying that, but I am saying–

David H. Souter:

Then… then it’s Indiana’s responsibility to cull those rolls.

Right?

Thomas M. Fisher:

–Consistent with the NVRA, yes.

David H. Souter:

It’s not a legitimate argument to say we can put a heavier burden on identifying… on voters to identify themselves because our officials are being contumacious.

You don’t rest on that argument?

Thomas M. Fisher:

No, not at all–

David H. Souter:

Okay, good.

I thought you were.

Thomas M. Fisher:

–No, that’s not my theory.

But–

Ruth Bader Ginsburg:

One aspect of your system… I know your time is about to expire… but it seems to me that every indigent person in… who doesn’t have a photo ID is put to a burden that the mass of voters are not put to… that is either the two step process and not going to my local precinct, but having to go to the county courthouse.

That burden is on every indigent person who doesn’t have a photo ID, so we are not speculating about numbers.

That would be true for every indigent person who doesn’t have photo ID, right?

Thomas M. Fisher:

–Who… right, and who would have to pay a fee to get… to get the ID.

Antonin Scalia:

And for nonindigent people.

I mean, there may be–

Thomas M. Fisher:

Well, that’s right.

Thomas M. Fisher:

Anybody who–

Antonin Scalia:

–Some very well to do elderly, you don’t drive, and they are in the same position.

Thomas M. Fisher:

–Well, and who can also vote absentee without ID.

But anybody who forgets their identification on election day, for example, would have to go through the same process, where they would cast a provisional ballot and then have to return to the clerk with in 10 days.

Ruth Bader Ginsburg:

Well, they can go home and get the identification and go back to their precinct; that’s what the indigent can’t do.

Thomas M. Fisher:

Or a nonindigent person who doesn’t have ID but then needs to go to the DMV.

Anthony M. Kennedy:

If we thought that the birth certificate requirement for indigent people was… was burdensome, are there any States that have alternates to birth certificates?

Do neighbors come in and testify that this is the person?

And I was going to ask the Petitioners’ counsel if there’s some areas where this statute… where the central purpose and the central function of this statute can be preserved but there can be some reasonable alternatives for people who have difficulty?

Thomas M. Fisher:

Well, let me do point out one category where there are some reasonable alternatives.

With respect… in Indiana… with respect to the elderly who can swear that they were never issued a birth certificate, there is an alternate means of identification, but that’s the only category.

The other thing we run into is the REAL ID Act.

If Indiana wants to have an identification card that can be acceptable in Federal facilities, it’s going to have to have minimal criteria for issuing those photo identifications.

And so I think with respect to that, it would not be permissible to get around a birth certificate, which is kind of a foundational document.

I mean there are alternatives, such as a passport, but I don’t… you know, I don’t mean to suggest that that’s necessarily going to be easier than it is to get a birth certificate.

It’s just that–

Antonin Scalia:

Don’t you need a birth certificate to get a passport?

Thomas M. Fisher:

–Well, that’s what I mean.

Antonin Scalia:

Yes.

So maybe that’s unconstitutional too.

[Laughter]

Thomas M. Fisher:

Yes.

And it… it’s worth bearing in mind that this form of identification is necessary to do so many everyday activities, and it’s not as if the State of Indiana went out and created an entirely new system to impose on the entire electorate, that everybody would have to start from square one.

The vast majority of voters are already in compliance with this law, and the decision of the General Assembly, that it is a reasonable step to take for a measure of election security to bring the State’s voting system into the 21st century and to require the same photo identification that you have to show typically to get on an airplane, to get into many Federal courthouses, is a reasonable step in the right direction to preserve voter confidence.

John G. Roberts, Jr.:

Thank you, Mr. Fisher.

Thomas M. Fisher:

Thank you.

John G. Roberts, Jr.:

General Clement.

Paul D. Clement:

Mr. Chief Justice, and may it please the Court: Any system of voting that involves registrations or precincts will necessarily require some mechanism for ascertaining a voter’s identity.

Accordingly Petitioners cannot take issue that the constitutionality of some mechanism for ascertaining voter ID.

And I take it from today’s argument that they would concede the constitutionality of a signature match requirement.

Paul D. Clement:

Likewise, nobody can really dispute the proposition that a government issued photo ID is an awfully good way of verifying someone’s identity.

So the dispute really boils down to, in a system where the States can legitimately ask for some kind of basis to ascertain ID, can they insist on a particularly good one, the photo ID?

And we would suggest that there’s nothing in the First or Fourteenth Amendments that precludes that from happening.

Now, with respect to the nature of this challenge, I think one thing that’s very evident from the questions is this was a challenge that was brought to the statute on its face and was brought before there was any enforcement of the statute or any significant enforcement of the statute.

Now, I would respectfully suggest that there’s a better way to test the constitutionality of these statutes.

Ruth Bader Ginsburg:

Before you do that, General Clement, I’d like to you to concentrate on the one group of people where I think you can make a facial challenge and may not all speculating, and that’s the indigent people who can’t get… don’t have the photo ID.

They don’t drive, and they can’t get up the money to get the birth certificate or whatever else.

They do have a burden that, it seems to me, the State could easily eliminate if they want those people to vote, and that is to say okay, do the affidavit, the whole thing in your local precinct; we’ll make it easy for you and not send you away, send you off to the county courthouse to get it validated.

Why… why, if you really wanted people to vote, wouldn’t you do it that way?

Paul D. Clement:

Well, Justice Ginsburg, I mean I can understand that you’re concerned with that aspect of the statute and the fact that you can’t execute an indigency affidavit in the polling place.

I don’t know why that’s a basis for a facial challenge though.

In particular, I think if you look at the Plaintiffs, the individual members, if they are members of the Indiana party that have been identified, they’ve certainly identified people who do not have the ID currently.

I’m not sure that they were specific as to whether they were indigent or not.

I’m not sure the individuals, the nine individuals, were really parsed out that way.

And I would think the far better way to go about dealing with that issue is to take as a starting point… I mean you pointed out that there were 32 provisional ballots cast in the Marion County election.

Now, I gather from the State that’s something like 0.02 percent of the ballots cast.

So it suggests that this is not a monumental problem, but those 32 provisional ballots seem to me to be 32 possible plaintiffs with a much more concrete case–

Ruth Bader Ginsburg:

But I’m–

Paul D. Clement:

–than anything we have before us.

Ruth Bader Ginsburg:

–Just on… just on that one class of people.

Paul D. Clement:

Sure.

Ruth Bader Ginsburg:

And that’s not going to change after the election.

I mean here is a group of people who are being put to a burden of going someplace else.

And my only question is, why couldn’t the system make it easy for them if we really want to help America to vote, all Americans, and say we’ll do it in the local precinct, somebody will be there to help you fill out the affidavit, instead of doing it in a way that’s really going to discourage people from voting?

Paul D. Clement:

And, Justice Ginsburg, I mean I see your concern, and I think if we had an as applied challenge that wasn’t this kind of grab bag challenge that looks at all the various different classes of people that might be adversely affected, if we had a challenge that focused on that particular issue, I would imagine… I don’t know for sure… I would imagine that the State would probably put on some evidence that says, look, there’s a reason we did it that way; we piggybacked on the general provisional ballot provisions and what we decided is that, if we had people executing indigency affidavits at the polling place, it would add to the lines as the the polls.

David H. Souter:

They didn’t make that argument now.

I mean we don’t have to wait until after an election to hear that, any more than we have to wait until after an election to identify the voters that Justice Ginsburg has.

Paul D. Clement:

But with respect, Justice Souter, I mean that’s not the way this challenge proceeded.

I mean there was a challenge to everything under the sun, to the whole sort of… this statute ab initio, and it wasn’t something that really put the State on notice that that was the nub of the dispute and would put evidence in the record that might join the issue.

And again I would say, of course, if there were that kind of as applied challenge, one of the virtues of it would be that the remedy at the end of the day would not be to strike the statute down on its face, but it would be an injunction consistent with the teaching of this Court in Nayot that said, look, you need to have… you need to be enjoined to offer the affidavits at the polling place–

David H. Souter:

That would be a–

Paul D. Clement:

–because–

David H. Souter:

–That would be a virtue, but one of the vices would be that it would be after the election and the entire matter would be academic for another 2 years, until another 2 years had passed.

Paul D. Clement:

–Well, I don’t think so.

I mean, at this point, like I said… I mean we have these 32 potential plaintiffs.

Antonin Scalia:

The provisional ballots would be counted, I assume.

Paul D. Clement:

What’s that?

Antonin Scalia:

The provisional ballots would be counted.

The ones that were unconstitutionally prevented from voting… those claims would be counted.

Paul D. Clement:

Well, if the claim could be brought in sufficient time, I suppose it would.

David H. Souter:

And if we assume that everyone who has a decent claim under this Act went through the hoops to get the provisional ballot at the… wherever the county office is and–

Paul D. Clement:

Sure.

David H. Souter:

–that’s an assumption which need not necessarily be made.

Paul D. Clement:

But, conversely, nowhere is it… nowhere is it a rational assumption that all 32 of these individuals has a great claim.

It may be that some of them are people who just forgot their ID–

Ruth Bader Ginsburg:

Well, I’m not concentrating–

Paul D. Clement:

–and for those people I don’t think they have much of a claim.

Ruth Bader Ginsburg:

–I was trying to deal with this one category of person, and the State… it was addressed, and the State said, well, we can’t do it that way because that will lead to congestion at the polling place.

But it seems to me that that is powerfully hard to reconcile with the claim that there are so few of these people it’s not really a problem.

If there are so few of them, then I don’t understand why they should be put to the burden of going someplace other than the polling place.

Paul D. Clement:

Well, Justice Ginsburg, I mean I think there’s a rationale justification for that which is that, you know, if… especially if there are only a handful of these people, is do you really want to instruct every poll worker at every precinct on how to deal with this unusual situation or do you want to say, you know, that’s sort of an outlying situation, let’s instruct one poll worker at the county elections office how to deal with it?

Now, at the end of the day, you may not be persuaded that that’s the way to do it.

I think that’s a reasonable argument, but an as applied challenge could focus like a laser beam on those particular voters and those challenges.

You could have particular indigent voters in front of you.

And it seems to me that that’s the preferable way to adjudicate this kind of claims, and I think what this Court could do is this Court could reject the facial challenge that is before it here that leave open the possibility of that as applied challenge, or one could certainly imagine a veteran who has a Federal photo ID without an expiration date who comes into court and says, look, it’s irrational to make me go get a different form of ID.

That as applied challenge–

Anthony M. Kennedy:

If we did that, I assume challenges could be made in advance of the election.

Paul D. Clement:

–I don’t see any reason why they couldn’t be.

I mean it might depend a little bit on the nature of the challenge.

John G. Roberts, Jr.:

And presumably the challenges could be adjudicated.

John G. Roberts, Jr.:

You have 10 days to go down to the courthouse when you file a provisional ballot, and if it turns out the election was decided by three votes and there are 30 provisional ballots, presumably the challenge can be brought at that point as well.

Paul D. Clement:

That is true, and there is a provision for judicial review under Indiana law, of the provisional ballots, if there’s an ongoing dispute.

But I also take the point that some of this could be taken care of well in advance of the election, which is actually, I think, a very healthy way to deal with election disputes.

And so my hypothetical veteran with the card, he has got the card in his wallet right now, or her wallet right now.

They can go get–

John Paul Stevens:

Is it not unrealistic to assume it would be easier to file a lawsuit and go off with the burden of litigation rather than go back to get the second affidavit?

If you’re challenging two affidavits, you know, to have a Federal case over it seems a little bit improbable.

Paul D. Clement:

–You know, it may be, Justice Stevens, that it’s easier to get somebody to help you out with the Federal case than it is with the second… with the second affidavit.

I don’t know.

I mean, you know, I think if you look around where there have been these laws–

Antonin Scalia:

Things called class actions, right?

Paul D. Clement:

–Yes.

I think, if you look where there have been these laws, there have been… the one observed phenomenon definitely is litigation.

So I do think that these claims will be brought.

I just really think that in choosing the mode of litigation, you know, Justice Kennedy for the Court in the partial birth case said that as applied challenges are the basic building block of adjudication.

And this seems like a particularly appropriate case to apply that lesson, because I can imagine there–

John G. Roberts, Jr.:

Do you think there is standing in this case to bring the facial challenge?

Paul D. Clement:

–I think it’s a close question, Mr. Chief Justice.

I would say that I think there is standing.

I think the standing that exists here is the standing to represent the nine or so individuals that are addressed specifically on pages 49a and 51a of the district court opinion.

Those are individuals who do not have photo IDs.

I think that as to the membership issue, boy, if the Indiana Democratic Party has any members, its probably these individuals, because they are poll workers and active in the parties.

And what I would say about those individuals, though, is that it is telling that the only individuals they have been able to identify who don’t have photo IDs also happen to be elderly individuals who can, by right, vote by absentee ballot.

Now, that’s not to say… and I would… I would concede there is a legally protected interest in voting in person sufficient to cross the Article III threshold.

But I think, when you are looking for the real world impact, it is telling that the people they have been able to identify do have a ready mechanism available to them.

John Paul Stevens:

If you look at the real world impact and you ask whether the Democratic Party has standing to challenge the law, is it relevant that the State legislature is split entirely on party lines?

Paul D. Clement:

May I answer the question?

You know, I don’t think that’s relevant in this… I would hate to think that a party line vote would necessarily give the other party standing as a general rule.

I don’t think that you would adopt that, and this goes out of the record, of course, to a recent study.

But the one study that’s been done actually shows that the Democratic Party did well in the 2006 elections, and turnout went up a little bit.

John Paul Stevens:

But don’t you think it’s fair to infer that this law does have an adverse impact on the Democrats that is different from its impact on the Republicans?

Paul D. Clement:

Well, again, if I could answer, I mean I would just say that, you know, if this was a cleverly designed mechanism by the Republican Party to disadvantage the Democratic Party, at least in 2006 it looks like it went pretty far awry from their perspective.

John G. Roberts, Jr.:

Thank you, General Clement.

Mr. Smith, three minutes.

Paul M. Smith:

Thank you, Your Honor.

Let me start by addressing the question of what reasonable alternatives there are to the strict law that we are dealing with here.

This is the most strict law in the country.

And what you have when you look at the range of laws that are out there in other States is a very different set of responses that occur when a voter shows up without an ID in hand.

In Michigan and several other States, for example, the response is to say: All right, we are going to make you fill out an affidavit attesting to who you are, and that you are a registered voter; that you live in this precinct; and we’ll let you go ahead and vote a regular ballot.

That in those States they… they consider that a sufficient safeguard while looking at the IDs of all the people who have the IDs.

In Florida they have a different approach, which is to let you vote a provisional ballot, and then what they do is they judge your signature match later on in exactly the same process that’s used for absentee ballots.

We have a lot of information in this record about why it’s okay to have absentee ballots allowed without an ID in Indiana, and they say, well, we have these specialized committees that know how to do signature matches; and they are trained; and so we get thousands of these absentee ballots in.

But we can very carefully scrutinize them.

You could do very easily do exactly the same thing with respect to the provisional ballots cast by people who show up without their ID without–

Antonin Scalia:

Who do you do with illiterates who don’t have a signature?

Do you match “Xs”, or what?

Paul M. Smith:

–Well, Your Honor–

Antonin Scalia:

Aren’t there going to be problems under any system you imagine?

Paul M. Smith:

–Yes, there are; and it’s this Court’s job under the Burdick line of cases to weigh the benefits and the burdens and come out with the appropriate decision about whether the legislature went too hard… far.

Let me talk a little bit about this facial versus as applied approach.

To paraphrase King Lear: That way lies madness, Your Honor.

This Court has never looked at these issues on an as applied basis.

The Burdick test, in its very nature, is about facial weighing of systemic benefits and burdens from the particular rule.

And there is a reason for that, because the concern is systemic; that the burdens that are being imposed, a whole range of them depending on the kind of people involved and their particular circumstances, will have an effect on the outcome of the election overall.

Imagine, if you will, what it would be like to try to have all these class actions being brought, some by the people who don’t have IDs, some by the people who have IDs but don’t have enough money.

You would have to figure out exactly how much money people are allowed to have in order to be in this exempt class.

The courts would then be creating exempt classes, trying to decide whether the legislature would have wanted an exemption drawn or not.

The whole thing would be a complete and utter morass.

And, ultimately, even if you did carve out an exception for indigent people or for some other group of people, you ultimately would leave untouched the real problem, which is the concern that even for people who are relatively… suffer relatively minor inconvenience, maybe one percent of them are not going to show up and vote.

And that’s exactly what the legislature may have been trying to accomplish here.

Paul M. Smith:

So that is not the way the jurisprudence in this area ever looks at it.

Nobody applied the poll… nobody challenged the poll tax as applied.

Anthony M. Kennedy:

You want us to invalidate a statute on the ground that it’s a minor inconvenience to a small percentage of voters?

Paul M. Smith:

That it imposes a range of burdens on people from quite severe to less severe, and those burdens vastly outweigh the… any incremental state interest that is being served, Your Honor.

That’s our… our analysis, and I think it’s certainly completely consistent with every decision right up through Klingman a couple of years ago.

That’s the test that this Court applies.

John G. Roberts, Jr.:

You said it serves no purpose.

What if we determine that it does serve a purpose in preventing fraud.

How are we supposed to weigh that against your asserted burden on the right to vote?

Paul M. Smith:

Well, you have to make some judgment about the incremental, additional benefit above what’s already been in place for decades, and it worked extremely effectively, Your Honor.

And, obviously, you do the balancing.

I’m just the advocate here.

But it seems to me you have to say is there any real benefit here compared to these burdens?

Antonin Scalia:

Well, if you want to talk about increments, why shouldn’t we also ask whether our judgment does more harm than good; whether… whether the remedy for… for the inconvenience to a small number of people is to wash away the whole statute, which in most of its applications is perfectly okay?

Why don’t we do that weighing of benefits and burdens of increments versus needs?

Paul M. Smith:

Well, Your Honor, I think the number of people who are adversely affected is part of the analysis.

But if you come in and you come to the conclusion that there is essentially no real, significant benefit from making all of these other people who have IDs show them, then the balance comes out that you throw the law out.

That’s the way the analysis works.

John G. Roberts, Jr.:

Thank you, Mr. Smith.

The case is submitted.