Voter ID law is likely to be upheld

WASHINGTON —  For a second time this week, a liberal challenge to a disputed state law floundered in the Supreme Court because lawyers could not show hard evidence that anyone had been harmed by the statute.

At issue Wednesday was Indiana’s election law, the strictest in the nation, which requires voters to show an official photo identification, such as a driver’s license or a passport, before casting a ballot.

Democrats challenged the law as a voting rights violation, contending the Republican-backed measure would deter thousands of poor, minority or elderly voters from casting a ballot.

But they filed their lawsuit in 2005, before the law had gone into effect and without naming any people who said they would be prevented from voting by the photo identification rule. That led to a round of skeptical questions from the court’s conservatives, including how the law might have hurt voters.

“You want us to invalidate a statute on the grounds that it’s a minor inconvenience to a small percentage of voters?” Justice Anthony M. Kennedy asked near the end of the hourlong arguments.

Led by Chief Justice John G. Roberts Jr., the high court has been increasingly unwilling to strike down state laws or regulations based on broad, hypothetical complaints. Roberts has insisted on real plaintiffs who cite specific problems.

The same theme was on display Monday when the court heard a challenge to lethal injections in a Kentucky death penalty case.

Defense lawyers insisted that the method of carrying out executions should be struck down as unconstitutional because, if done wrong, the condemned person might suffer searing pain. But the lawyer arguing the case had to admit there was no evidence that the method had been done wrong in Kentucky, which has not carried out an execution since 1998.

During Wednesday’s arguments, Roberts and Justice Antonin Scalia questioned whether the Democrats’ challenge should be thrown out because no voters were cited in the lawsuit.

Roberts, who grew up in northern Indiana, noted the ruling of the trial judge who had upheld Indiana’s law. “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,” Roberts told Washington lawyer Paul M. Smith, who represented the Indiana Democrats.

Justice Samuel A. Alito Jr. also expressed skepticism in his questioning of Smith.

There appeared to be five votes to uphold Indiana’s law, counting Justice Clarence Thomas, who said nothing during the arguments but who reliably votes with the conservatives.

Voting rights experts have called the Indiana case the most important election law dispute in the high court since the Bush vs. Gore case that decided the presidential election in 2000.

Republicans have pressed for stricter voter identification laws in states across the nation. They say the laws are needed to prevent fraudulent votes from noncitizens and in the name of dead people.

Democrats say the GOP’s targeting of voter fraud is a fraud, since Republicans have been unable to point to cases of ballots being cast in the name of a still-registered dead person. An easier way to vote fraudulently is by mail, Democrats say, but the photo identification law does not affect people who vote by mail.

If the high court upholds Indiana’s law, it should clear up legal doubts about other, less-stringent voter identification measures in Georgia, Arizona, Michigan and Florida. A victory for Indiana also could encourage states to adopt similar laws.

Democrats say they fear the restrictions could dissuade a small percentage of legal voters -- perhaps 1% or 2% of the electorate -- from casting a ballot. And that, they say, might tip the balance in close races for Congress, legislatures or even president.

Justice Ruth Bader Ginsburg said the Indiana law was unfair and should be struck down. She said indigent people were not likely to have a valid driver’s license, and they were not going to be able to go to a courthouse to get an identification card.

Ginsburg said Indiana election officials in Marion County said 32 legal voters had their ballots rejected in November because they did not furnish proof of their identities.

“That’s not hypothetical. That’s real,” she said.

The 32 voters were not plaintiffs in the lawsuit, she said, but “it isn’t mere speculation that there are going to be many people whose vote will not count.”

How many remains the subject of dispute.

Smith, the Democrats’ lawyer, estimated that 400,000 Indiana residents did not have a valid driver’s license, and perhaps half of them might have difficulty furnishing a birth certificate to county officials.

Thomas Fisher, the state’s lawyer, disputed that the 32 voters from Marion County were treated poorly.

“For all we know, those may have been fraudulent ballots,” he told Ginsburg.

U.S. Solicitor General Paul D. Clement, representing the Bush administration, urged the court to uphold the Indiana law, but also to allow new lawsuits from individuals.

He called the pending lawsuit a “kind of grab-bag challenge” that did not focus on voters or real problems.

One election law expert questioned the wisdom of opening the door to lawsuits from people who say they were barred from voting.

This “would create more litigation at exactly the wrong time, just before or just after an election,” said Richard L. Hasen, a professor at Loyola Law School in Los Angeles. He said it would undercut the public’s confidence in the election and the judges who had to decide the disputes.

The high court will rule in the Indiana case, Crawford vs. Marion County, by late June.

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david.savage@latimes.com