Older Voters and Photo ID Laws

AARP, the League of Women Voters and a crowd of other advocacy and civil rights groups say many older Americans, even those who have cast ballots in elections for years, could be disenfranchised if the U.S. Supreme Court fails to strike down Indiana’s 2005 law requiring voters to show government-issued photo IDs at their polling place.

While the case, argued before the court Jan. 9, focuses on the Indiana law, more than two dozen other states are considering similar legislation. A handful of states have some kind of voter photo-ID law, and Indiana’s is one of the strictest.

National surveys suggest that as many as 18 percent of Americans over age 65 do not have the requisite photo ID, such as a driver's license or passport, according to AARP. These people tend to be older, low-income and minority voters.

The average voter pays nothing to exercise the right to vote. But older, poorer Indiana residents who wish to vote and must obtain photo ID will have to invest time and money in the process, AARP says.

The court is expected to rule on the issue by this summer, before the 2008 presidential elections.

"In terms of election law and in practical terms for the next election, this is a really, really important case," says Deborah Goldberg, Democracy Program director of the Brennan Center for Justice at New York University School of Law.

If the court rules in favor of the strict Indiana law and other states adopt similar laws, the center estimates, as many as 20 million citizens could be prevented from voting in the presidential election.

The court is weighing in on a highly partisan issue. Most Republicans say they favor photo IDs as a means to prevent voter fraud, while many Democrats say obtaining a government-issued ID is an unnecessary burden for older or poorer Americans who don’t drive or travel outside the country. The debate is especially contentious because the very narrow voter fraud this law addresses—someone impersonating a registered voter—is so rare today. In Indiana, there is no record of this kind of fraud occurring.

Any law that makes it more difficult for some people to vote should only be enacted "for a very good reason, backed by a whole lot of evidence," Goldberg says. "We are talking here about laws with the potential to wrongly deprive someone of the right to vote, which is a serious constitutional violation."

Experts say that most established democracies in the world—among them Britain, Canada, France, Sweden, Denmark—do not have that kind of requirement. The issue has divided state and federal lawmakers along party lines, and even judges: the U.S. Appeals Court in Chicago upheld Indiana's law, with two Republican appointees approving it and a Democratic judge dissenting.

AARP argued in its friend-of-the-court brief, filed in favor of overturning the Indiana statute, that the photo ID law "threatens to reduce legitimate citizen participation—particularly by older voters." Moreover, the brief argues, laws like this one disproportionately affect older voters because they are less likely to have the identification and other documents necessary for compliance. An Indiana AARP poll in 2005 found that more than 23,000 Indiana voters over age 60 did not have the ID required to vote under the new law.

To obtain a photo ID for voting, residents must go to the motor vehicle department and provide documents that include a certified birth certificate, which costs from $10 to $20, depending on the state where it is issued. Many older minority residents were born outside hospitals and were not registered; a married woman whose name is different on her birth certificate will need further documents to show when her name changed.

Under Indiana's law, a voter without proper ID could cast a provisional ballot, but to have it counted the voter would have to return to the county clerk's office within 10 days with certified identification.

Goldberg says the court might mitigate complications imposed by the law by allowing the law to stand but giving Indiana voters the right to swear—under penalty of perjury—in an affidavit at the polling place, saying they are who they say they are, with no further proof needed. Several states use this process now, and the justices questioned why that was not allowed under Indiana's law.

"The argument today brought to light many problems with strict photo ID laws—there is no evidence they address a real problem and yet they present huge burdens for some voters," says Daniel Kohrman, an AARP attorney who worked on the brief filed by AARP and the National Senior Citizen's Law Center.

"This case turns," he adds, "on whether the justices are willing to hold state officials to high standards in making rules that limit voting rights. We hope they will."