7th Circuit Denies Rehearing On Indiana's Voter ID Law

APPEAL LIKELY TO BE TAKEN TO SUPREME COURT
The Plaintiffs challenging Indiana's Voter ID law in Crawford v. Marion Co. Election Board were denied their petition for a rehearing of their case before the full 7th Circuit Court of Appeals after their case was earlier voted down by a 3-judge panel. Four of the Court's 11 judges dissented from today's order, including Judges Wood, Rovner, Evans and Williams. The major disagreement the dissenters had with today's decision was the standard of review for the case. The dissenter believe the law should have been held to a strict scrutiny standard. Judge Wood wrote:

To the extent that it operates to turn them away from the polls, it is just as insidious as the poll taxes and literacy tests that were repudiated long ago. Anecdotal evidence suggests that the kind of close look that would take place if we used strict scrutiny would reveal troublesome patterns resulting from these new identification laws. The New York Times recently reported that overall voter turnout in these states decreases by about three percent, and by two to three times that much for minorities . . .

The state’s justification for the new voting requirement is voter fraud—specifically, the problem of fraud on the part of people who show up in person at the polling place. Yet the record shows that the existence of this problem is a disputed question of fact. It is also a crucial question for the inquiry that Burdick demands, because if the burden on voting is great and the benefit for the asserted state interest is small as an empirical matter, the law cannot stand . . .

Finally, this court should not ignore this country’s history. Unfortunately, voting regulations have been used in the notso-distant past for discriminatory reasons. The law challenged in this case will harm an identifiable and oftenmarginalized group of voters to some undetermined degree. This court should take significant care, including satisfactorily considering the motives behind such a law, before discounting such an injury. It may be that even under the exacting scrutiny Burdick mandates for laws that impose severe restrictions, under which we must decide whether the regulation is narrowly drawn to advance a state interest of compelling importance, the Indiana law challenged here would stand. We are not yet in a position to conduct that inquiry. Before undertaking that task, the full court should decide what standard should govern review of such a law and what kind of empirical record must be assembled to support whatever standard it chooses. For all of these reasons, I respectfully dissent from the decision not to rehear this case en banc.

I fully anticipate the plaintiffs will appeal the 7th Circuit decision to the U.S. Supreme Court. To see the post on the 7th Circuit's original decision, click here. Indiana Law Blog has more here.