MICHELE NORRIS, host:
Politics was the matter at hand at the Supreme Court today as well. At issue: An Indiana law requiring all voters to show current government-issued photo ID. Since 2000 in Bush versus Gore, Republicans have pushed such laws across the country, and Indiana's is the strictest.
NPR's legal affairs correspondent, Nina Totenberg reports.
NINA TOTENBERG: Twenty-four states have laws that require voters to provide some form of ID at the polls. Seven states require photo IDs. Indiana's law requires anyone voting in person to present a current government-issued photo ID. People can get them free from the state, but must have appropriate documents such as a certified birth certificate plus other secondary proof, and obtaining those documents often cause time and money.
The Democratic Party challenged the law in court and lost. A federal appeals court acknowledged that the law would impose a burden on minorities, the poor and the elderly, but the lower courts said the burden was slight and was just justified to prevent fraud in the future.
On the steps of the Supreme Court today, Indiana Solicitor General Thomas Fisher acknowledged that the state has no history of voter impersonation fraud. But he said there have been reports of voter impersonation fraud in other states.
Mr. THOMAS FISHER (Solicitor General, Indiana): We've got our problem with voter confidence. I think that's the main thing. We want to make sure that votes do not lose confidence in the integrity of election.
TOTENBERG: But Democratic Party Chair Dan Parker said there's not a single recorded case of voter impersonation fraud in Indiana's history.
Mr. DAN PARKER (Chairman, Indiana Democratic Party): The solution, looking for a problem. There is no problem in Indiana with voter impersonation.
TOTENBERG: Inside the courtroom, lawyer Paul Smith, representing the Democrats, took quite a pounding from the justices.
Chief Justice Roberts: I had understood you had no voters who had actually been prevented from voting. Answer: That's because we challenge the law before any election actually occurred. Now, we have such voters.
Justice Scalia: Did you have anyone who said, I don't have an ID and won't be able to get one? Answer: Yes.
Chief Justice Roberts: Even though the state provides free ID? Answer: Yes.
The state ratcheted up the difficulty of getting that ID, requiring a birth certificate and other documents that you have to pay for. Yes, said lawyer Smith, there's a special provision for indigents, but it is gratuitously burdensome. Requiring them to make more than one trip in order to vote, and requiring them to go to the county seat, not just their precinct polling place.
Justice Breyer: There used to be a common urban legend of political bosses voting whole graveyards of people. Now, that would be almost impossible to catch. Answer: It would not be impossible catch. In a state with 5,000 precincts manned by poll workers who know many of their neighbors, many kinds of fraud are hard to catch, but they do get caught.
Justice Alito: If you concede that some kind of voter ID requirement is appropriate, where do you draw the line?
Justice Souter: How do we quantify how many people will suffer in Indiana? Answer: A substantial portion of the 400,000 without IDs. The Lafayette Urban Ministry, which helps the needy, to cite just one example, had 150 people come to them for helping getting IDs. But these voters were in this catch 22 where they needed a driver's license to get a birth certificate. And a year later, even with the ministry's assistance, 75 of them still didn't have IDs.
The state's lawyer, Thomas Fisher, rejected the Democrat's numbers. That prompted Justice Souter to interject, well, even the lowest estimate is 10,000 people affected. Answer: Then you're talking about less than half of a percent of the total electorate.
Justice Souter: But isn't 10,000 voters enough to be considered more than de minimis?
Justice Scalia: Why can't that one-half of one percent challenge the law, saying it can't be applied to them?
Justice Souter: You'd never be able to bring a pre-election challenge then, would you? Answer: No.
Justice Ginsburg: And the horse would be out of the barn. The election would be skewed against them.
Justice Kennedy: There's nothing that prevents the state from confirming the validity of the registration at the polls. If we thought that the birth certificate was burdensome, he added, are there states that have a reasonable alternative?
The Democrats' lawyer, Paul Smith, sought to answer that question in his rebuttal time pointing to other states like Michigan that require affidavits at the polls when a person doesn't have an ID.
Justice Scalia: Aren't there going to be problems with any system, you imagine? And shouldn't we wait for lawsuits challenging how the law has actually been applied to individuals? Answer: To paraphrase King Lear, that way lies madness. The court would have to do what it has never done before, carve out groups of people who are exempt from the law. And at the same time, the court would leave a larger group of people to suffer smaller inconveniences, which would cause some small percentage of them not to vote.
Justice Kennedy: You want us to invalidate a statute on the grounds that it's a minor inconvenience to a small percentage of voters?
That question from Justice Kennedy whose vote may be pivotal in the case could be telling.
Nina Totenberg, NPR News, Washington.