Voter ID: Fraud prevention, or a modern-day poll tax?

By Thomas M. Fisher

In 2005, Indiana's legislature required voters to show a current, government-issued photo ID at the polls in order to be allowed to vote.

In so doing, the legislature hoped to solve two problems: the long-developing problem of voter-list inflation and the fulfillment of the U.S. Supreme Court's desire to modernize elections.

Bush v. Gore, 531 U.S. 98, 104 (2000). Plaintiffs in two consolidated cases have challenged the law, claiming that it imposes an unconstitutional burden on the right to vote. In particular, the plaintiffs contended that the poor and the elderly would be unduly burdened by the requirement to show this type of identification.

In a 2-1 ruling in January 2007, the U.S. Court of Appeals for the 7th Circuit upheld Indiana's law.

None other than Judge Richard Posner held that Indiana's law is reasonable, noting that during the 2000 and 2004 elections, the number of people registered to vote exceeded the eligible voting age population in several states.

However, Judge Terence Evans, a Clinton appointee, dissented, bluntly stating, "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election day turnout by certain folks believed to skew Democratic."

In January 2008, the U.S. Supreme Court heard oral arguments on the case.

Does Indiana's law sound familiar? In May 2006, the Missouri Legislature passed a bill requiring every voter to present a state-issued photo ID to be eligible to vote.

In addition, the legislature called for free ID cards.

In July 2006, the American Civil Liberties Union sued, claiming that the bill was unconstitutional.

In October 2006, the Missouri Supreme Court sided with the ACLU. Judge Callahan wrote for the majority:

"[F]or the elderly, the poor, the undereducated, or otherwise disadvantaged, the burden can be great if not insurmountable, and it is those very people outside the mainstream of society who are the least equipped to bear the costs or navigate the many bureaucracies necessary to obtain the required documentation."

Who is right in this politically-charged debate: the 7th Circuit Court of Appeals, or the Missouri Supreme Court?

Do laws like those in Indiana and the Missouri bill prevent voter fraud and modernize elections, or are these laws simply modern-day poll taxes, aimed at disenfranchising the less fortunate?

Thomas M. Fisher is Indiana's solicitor general. He will speak at noon May 16 at a meeting of the Federalist Society at the Missouri Athletic Club in St. Louis. The meeting is open to the public.