Crawford v. Marion County Election Bd.

• Decision Date: 04 January 2007
• Docket Number: No. 06-2218.,No. 06-2317.,06-2218.,06-2317.
• Citation: 472 F.3d 949
• Parties: William CRAWFORD, et al., Plaintiffs-Appellants, v. MARION COUNTY ELECTION BOARD, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

472 F.3d 949

William CRAWFORD, et al., Plaintiffs-Appellants, v. MARION COUNTY ELECTION BOARD, et al., Defendants-Appellees.

No. 06-2218.

No. 06-2317.

United States Court of Appeals, Seventh Circuit.

Argued October 18, 2006.

Decided January 4, 2007.

Kenneth J. Falk (argued), Indiana Civil Liberties Union, William R. Groth (argued), Fillenwarth, Dennerline, Grath & Towe, Indianapolis, IN, for Plaintiffs-Appellants.

Thomas M. Fisher (argued), Office of the Attorney General, James B. Osborn, Office of the Corporation Counsel, Indianapolis, IN, for Defendants-Appellees.

Karen Celestino-Horseman, Indianapolis, IN, Sidney S. Rosdeitcher, Paul, Weiss, Rifkind, Wharton & Garrison, New York, NY, Todd Cornelius Zubler, Wilmer, Cutler, Pickering, Hale & Dorr, Washington, DC, for Amicus Curiae.

Before POSNER, EVANS, and SYKES, Circuit Judges.

POSNER, Circuit Judge.

A number of candidates for public office, and voters, along with organizations such as the Democratic Party that are active in electoral politics, challenge a new Indiana voting law as an undue burden on the right to vote, a right that the Supreme Court has found latent in the Constitution. E.g., Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), and cases cited in Igartua-De La Rosa v. United States, 417 F.3d 145, 169-70 (1st Cir.2005). The law requires, with certain exceptions, that persons wanting to vote in person in either a primary or a general election must present at the polling place a government-issued photo ID (see Ind.Code §§ 3-5-2-40.5, 3-10-1-7.2, 3-11-8-25.1), unless the person either wants to vote by absentee ballot (and is eligible to do so) or lives in a nursing home. Ind.Code §§ 3-11-8-25.1(e), 3-11-10-1.2. The district court granted summary judgment for the defendants. Indiana Democratic Party v. Rokita, 2006 WL 1005037 (N.D.Ind. Apr. 14, 2006), 2006 U.S. Dist. LEXIS 20321.

Until the new law went into effect, someone who wanted to vote in person and was not voting for the first time just had to sign the poll book at the polling place; "there would generally be a photographic copy of the signature [on file] that would be compared" by the staff with the signature in the poll book. Id. at *18-*19. The new law's requirement that the would-be voter present a government-issued photo ID, such as a passport or a driver's license, is no problem for people who have such a document, as most people do. Nor is it a problem for people who vote by absentee ballot or who live in nursing homes—and anyone 65 or over can vote by absentee ballot. But what about people who do not have photo IDs and must vote in person, if they vote at all, because they don't live in nursing homes and are ineligible to cast absentee ballots, though the eligibility requirements are not stringent (see Ind. Code § 3-11-10-24, and compare Griffin v. Roupas, 385 F.3d 1128, 1129 (7th Cir. 2004), discussing the Illinois requirements)? They can get a photo ID from the Indiana motor vehicle bureau by presenting their birth certificate (or certificate of naturalization if they were born outside the United States) or a certified copy, plus a document that has their name and address on it, such as a utility bill. Both the indigent and the nonindigent who does not have (or have with him) a photo ID can, if challenged, cast a provisional ballot and then has 10 days either to file an affidavit of indigency or to procure a photo ID. Ind.Code §§ 3-11.7-5-2.5, 3-11-8-23, 3-11-8-25.1.

Even though it is exceedingly difficult to maneuver in today's America without a photo ID (try flying, or even entering a tall building such as the courthouse in which we sit, without one; see United States v. Smith, 426 F.3d 567 (2d Cir.2005)), and as a consequence the vast majority of adults have such identification, the Indiana law will deter some people from voting. A great many people who are eligible to vote don't bother to do so. Many do not register, and many who do register still don't vote, or vote infrequently. The benefits of voting to the individual voter are elusive (a vote in a political election rarely has any instrumental value, since elections for political office at the state or federal level are never decided by just one vote), and even very slight costs in time or bother or out-of-pocket expense deter many people from voting, or at least from voting in elections they're not much interested in. So some people who have not bothered to obtain a photo ID will not bother to do so just to be allowed to vote, and a few who have a photo ID but forget to bring it to the polling place will say what the hell and not vote, rather than go home and get the ID and return to the polling place.

No doubt most people who don't have photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates. Exit polls in the recent midterm elections show a strong negative correlation between income and voting Democratic, with the percentage voting Democratic rising from 45 percent for voters with an income of at least $200,000 to 67 percent for voters having an income below $15,000. "Exit Polls," http://www. cnn.com/ELECTION/ 2006/pages/ results/ states /US/H/00/epolls.0.html; see also Jeffrey M. Stonecash, Class and Party in American Politics 114 (2000) (tab.5.7). Thus the new law injures the Democratic Party by compelling the party to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982); Smith v. Boyle, 144 F.3d 1060, 1061-63 (7th Cir.1998). The fact that the added cost has not been estimated and may be slight does not affect standing, which requires only a minimal showing of injury. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-84, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 690 n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); 520 Michigan Avenue Associates, Ltd. v. Devine, 433 F.3d 961, 962-63 (7th Cir.2006); Baur v. Veneman, 352 F.3d 625, 633-34 (2d Cir.2003). The Democratic Party also has standing to assert the rights of those of its members who will be prevented from voting by the new law. Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 573-74 (6th Cir.2004); see also Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).

The standing of the many other plaintiffs in these consolidated suits—candidates, voters, organizations—is less certain, but need not be addressed. Only injunctive relief is sought, and for that only one plaintiff with standing is required; and the Democratic Party has standing. Texas Democratic Party v. Benkiser, 459 F.3d 582, 585-86 (5th Cir.2006); Schulz v. Williams, 44 F.3d 48, 50-53 (2d Cir.1994); Owen v. Mulligan, 640 F.2d 1130, 1131-33 (9th Cir.1981); see Libertarian Party v. Rednour, 108 F.3d 768, 770 (7th Cir.1997).

But there is something remarkable about the plaintiffs considered as a whole, which will provide the transition to our consideration of the merits. There is not a single plaintiff who intends not to vote because of the new law—that is, who would vote were it not for the law. There are plaintiffs who have photo IDs and so are not affected by the law at all and plaintiffs who have no photo IDs but have not said they would vote if they did and so who also are, as far as we can tell, unaffected by the law. There thus are no plaintiffs whom the law will deter from voting. No doubt there are at least a few such people in Indiana, but the inability of the sponsors of this litigation to find any such person to join as a plaintiff suggests that the motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls.

The fewer the people who will actually disfranchise themselves rather than go to the bother and, if they are not indigent and don't have their birth certificate and so must order a copy and pay a fee, the expense of obtaining a photo ID, the less of a showing the state need make to justify the law. For the fewer the people harmed by a law, the less total harm there is to balance against whatever benefits the law might confer. The argument pressed by the plaintiffs that any burden on the right to vote, however slight it is or however meager the number of voters affected by it, cannot pass constitutional muster unless it is shown to serve a compelling state interest was rejected in Burdick v. Takushi, 504 U.S. 428, 433-34, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). The Court said that "election laws will invariably impose some burden upon individual voters . . . . [T]o subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest, as petitioner suggests, would tie the hands of States seeking to assure that elections are operated equitably and efficiently." See also Anderson v. Celebrezze, 460 U.S. 780, 788-90, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), where the Court pointed to the need to "consider the character and magnitude of the asserted injury" (emphasis added); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997); Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); Schulz v. Williams, 44 F.3d 48, 56 (2d Cir.1994).

A strict standard would be especially inappropriate in a case such as this, in which the right to vote is on both sides of the ledger. See Purcell v. Gonzalez, ___ U.S. ___, ___, 127 S.Ct. 5, 7, ___ L.Ed.2d ___, ___ (2006) (per curiam); cf. Burson v. Freeman, 504 U.S. 191, 198, 206,...