RAY SUAREZ: While the New Hampshire primary may help to determine who voters will get to choose at the polls next November, today’s case at the high court may determine how voters in several states will cast their ballots.
At issue: Can states require voters to show a photo ID before they’re allowed to vote?
NewsHour regular Marcia Coyle of the National Law Journal was at the court for the arguments, and she joins us now.
Let’s go back to the beginning. Many states have voter ID regulations. How did this case get to the court?
MARCIA COYLE, National Law Journal: Well, about 20 states have voter ID regulations on the books, and they generally followed the problems we saw in the 2000 presidential election between President Bush and Al Gore.
Indiana, in 2005, its legislature enacted a law that requires a citizen to present a government-issued photo identification at the ballot box before casting a ballot. The Indiana Democratic Party, along with some candidates, as well as some citizens, brought two lawsuits challenging that law.
RAY SUAREZ: Were any of the petitioners people who had actually been denied an opportunity to vote?
MARCIA COYLE: Well, there are petitioners, according to the attorneys for the Indiana Democratic Party and the challengers, there were people who were deterred from voting.
And you have to understand what the law does, basically. If you show up at the ballot box without these government-issued IDs, you can cast what they call a provisional ballot. That ballot is not counted right away.
You have roughly 10 days to either get a valid government ID or go to the county seat and file an affidavit claiming either you’re too poor to be able to afford the fees that would enable you to get this ID, or you have a religious objection to being photographed.
So there were people who felt that– or who did not return with a government ID, and their votes were not counted.
Opponents argue burden too great
RAY SUAREZ: What did the judges make of the pleadings that this represented too high a burden for some citizens to vote?
MARCIA COYLE: The court went two ways here. First up during the argument was Paul Smith, who represented those who opposed the law. And he argued that this law imposes a substantial financial and practical burden on some citizens.
For example, you can get a -- the government ID most likely to be produced is a driver's license. You can get a non-driver's photo ID from the motor vehicle bureau in Indiana, but you have to present two types of documents certifying who you are. One of them is generally a birth certificate or a passport.
That can be expensive; that can be difficult to navigate for some people. So it's a practical and financial burden, he said.
He also argued that the state's claim that it needs this requirement in order to combat voter ID fraud is just not a substantial interest, because no one in the history of Indiana has been punished for voter identification fraud.
He immediately encountered skeptical questions from Chief Justice Roberts, Justices Scalia and Alito, who pointed out that there really wasn't evidence in the court record below that any one person had been denied, totally denied the right to vote.
And Chief Justice Roberts also noticed that there were reports showing that Indiana's registration rolls -- roughly more than 40 percent of the entries on those registration rolls were bad entries, people who had died, or people who had moved on. And this, as Justice Scalia noted, showed there was a likelihood of voter fraud.
Mr. Smith argued, again, that no one had ever been prosecuted for voter fraud. And he says that his experts showed that, based on an earlier election, you could extrapolate that roughly 200,000 citizens in Indiana could be negatively affected by this law.
State retorts burdens manageable
RAY SUAREZ: What did the state of Indiana have to say on its own behalf?
MARCIA COYLE: Indiana's attorney, Tom Fisher, he argued that, well, perhaps as many as 25,000 people might be affected by this law, but that's an infinitesimal portion of the electorate in Indiana and certainly does not outweigh the state's interest in preventing voter fraud.
But he, too, ran into a lot of skeptical questions, this time from justices like Justice Breyer, Justice Souter, and Justice Ginsburg, who questioned, well, why aren't there less burdensome ways to tackle this problem than, for example, making somebody travel to the county seat to sign an affidavit that they're too poor to afford the fees for a government ID?
For example, if the problem is the registration rolls, why not, when somebody goes to register, have a camera right there? And if they need a photo ID, take the photo right there and make it free, as other states do.
And also, on the affidavits, signing the affidavits, Justice Ginsburg said, Well, why not have them sign the affidavit right at the ballot box, at the polling place, instead of making them travel to the county seat to do that?
The Indiana attorney said at that point, Well, that would increase lines at the polling places. And Justice Ginsburg, though, quickly rejoined, Well, you said this law is not going to affect a lot of people. So why would that be a problem?
Decision expected before Nov. vote
RAY SUAREZ: This has attracted a lot of outside interest from advocacy groups, pro and con. Will this be wrapped up by election day this year?
MARCIA COYLE: I expect there's going to be a decision by late June. And it's important to note how the court approaches these types of cases.
It generally engages in a balancing test. It looks at the burdens imposed by the law, and it looks at the benefits that the state claims the law will give.
Justice Alito at one point during the argument said, On the record we have before us, there's not a lot of evidence of the burden and there's not a lot of evidence of the benefit, so where do we draw the line?
And that's the dilemma for the court right now. Mr. Smith, who represented the opponents, said, basically, That's your job. You have to balance this, and you have to draw the line.
RAY SUAREZ: Marcia Coyle, thanks a lot.
MARCIA COYLE: You're welcome.