NOS. 07-21, 07-25 In The Supreme Court of the United States WILLIAM C RAWFORD, ET AL., Petitioners, v. MARION COUNTY ELECTION BOARD, ET AL., Respondents. INDIANA DEMOCRATIC PARTY, ET AL., Petitioners, v. TODD ROKITA, ET AL., Respondents. On Writs of Certiorari to the United States Court of Appeals for the Seventh Circuit BRIEF OF AMICUS CURIAE, DORIS ANNE SADLER, IN SUPPORT OF STATE RESPONDENTS WAYNE C. TURNER COUNSEL OF RECORD MICHAEL R. LIMRICK MCTURNAN & TURNER 2400 Market Tower 10 W. Market Street Indianapolis, IN 46204 (317) 464-8181 Counsel for Amicus Curiae Doris Anne Sadler Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i TABLE OF CONTENTS TABLE OF CONTENTS...................... i TABLE OF AUTHORITIES.................. ii INTEREST OF AMICUS CURIAE ............ 1 SUMMARY OF ARGUMENT................. 1 ARGUMENT.............................. 4 I. INDIANA’S SIGNATURE REQUIREMENT DID NOTHING TO PREVENT VOTE FRAUD............................. 4 II. INDIANA’S VOTER ID LAW PROVIDES MEANINGFUL PROTECTION AGAINST VOTE DILUTION AND DOES SO IN THE LEAST INTRUSIVE MANNER POSSIBLE .......................... 8 III.WITHOUT CONCRETE EVIDENCE OF A CONSTITUTIONAL VIOLATION, STATES SHOULD BE LEFT TO DETERMINE WHAT REGULATIONS ARE NECESSARY TO PROVIDE FOR FAIR AND HONEST ELECTIONS........................ 12 CONCLUSION ........................... 20 ii TABLE OF AUTHORITIES Cases Anderson v. Celebrezze, 460 U.S. 780 (1983) ..................... 10 Buckley v. Valeo, 424 U.S. 1 (1976) ....................... 17 Burdick v. Takushi, 504 U.S. 428 (1992) ................... 3, 12 Burson v. Freeman, 504 U.S. 191 (1992) ................ 3, 10, 17 Crawford v. Bd. of Educ., 458 U.S. 527 (1982) ..................... 18 Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir. 2007) ............... 3 Dunn v. Blumstein, 405 U.S. 330 (1972) ............. 1, 2, 7, 8, 12 Gray v. Sanders, 372 U.S. 368 (1963) ................... 2, 11 Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775 (S.D. Ind. 2006) ....... 14 McDonald v. Bd. of Election Comm’rs, 394 U.S. 802 (1969) ..................... 18 iii Munro v. Socialist Workers Party, 479 U.S. 189 (1986) ..................... 17 New State Ice Co. v. Liebman, 285 U.S. 262 (1932) ..................... 19 Purcell v. Gonzalez, 127 S. Ct. 5 (2006) .................... 3, 13 Reynolds v. Sims, 377 U.S. 533 (1964) ...................... 2 Sailors v. Bd. of Educ., 387 U.S. 105 (1967) ..................... 18 Smith v. Robbins, 528 U.S. 259 (2000) ..................... 18 Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972) ..................... 12 Storer v. Brown, 415 U.S. 724 (1974) ...................... 3 United States v. Mornan, 413 F.3d 372 (3d Cir. 2005) ................ 5 Constitutional and Statutory Provisions Fourteenth Amendment.................... 18 Help America Vote Act (“HAVA”), Pub. L. No. 107-252, 116 Stat. 1666 (2002) ...... 5 Ind. Code § 3-6-6-1 (LexisNexis 2007) .......... 4 iv Ind. Code § 3-6-6-2 (LexisNexis 2007) .......... 4 Ind. Code § 3-6-6-8 (LexisNexis 2007) .......... 4 Public Law 109-2005 (Indiana’s “Voter ID Law”)...............passim Rules Fed. R. Evid. 702........................... 5 S. Ct. R. 37.6 .............................. 1 Other Authorities Andrea Neal, Editorial, A Tale Of 2 Cities’ Elections, The Indianapolis Star, May 17, 2007, at 14 ................................... 19 Brendan O’Shaughnessy, City Wants To Reduce Precincts By ‘08 Elections; Fewer Polling Sites Will Help With Shortage Of Workers, Mayor Says, The Indianapolis Star, Sept. 15, 2007, at 1 ...... 7 Comm’n on Fed. Election Reform, Building Confidence in U.S. Elections, 21 (2005), http://www.american.edu/ia/cfer/report/ full_report.pdf....................... 9, 11, 12 Editorial, A Bipartisan Case for Clean, Fair Elections, Richmond Palladium-Item, Jan. 8, 2007, at A6.................................. 9, 10 v Jeffrey Milyo, The Effects of Photographic Identification on Voter Turnout in Indiana: A County-Level Analysis, Inst. of Pub. Pol’y, Report 10-2007 (Nov. 2007), http://web.missouri.edu/~milyoj/files/IPP%20 Report%20Corrected.pdf................. 13, 14 Joe Cermak, Prosecutor’s Office To Determine Whether Signatures Were Valid, Ball State Daily News (Muncie, Ind.), Nov. 7, 2007, available at http://media.www.bsudailynews.com/media/ storage/paper849/news/2007/11/07/News/ Prosecutors.Office.To.Determine.Whether. Signatures.Were.Valid-3084848.shtml ......... 6 Lorraine C. Miller, Statistics of the Congressional Election of November 7, 2006 (2007), http://clerk.house.gov/member_info/electionInfo/ 2006election.pdf .......................... 11 Marion County Clerk’s Office, 2007 General Election, Certified Results, http://imcwwa2k3.indygov.org/elecnight/ 2007gen/ ............................... 7, 15 Mary Beth Schneider, Ballard Stuns Peterson, The Indianapolis Star, Nov. 7, 2007, at 1 ...... 15 Secretary of State, Indiana 2007 Mayoral Primary Results, http://www.in.gov/apps/sos/primary/sos_ primary07;jsessionid=uNwyKny9H3a596F8zr? page=office&countyID=-1&partyID=- 1&officeID=32&districtID=-1&districtshortview ID=-1&candidate=......................... 10 vi U.S. Census Bureau, State & County Quick Facts, http://quickfacts.census.gov/qfd/states/18/18097. html (last visited Dec. 5, 2007) ................ 1 1 INTEREST OF AMICUS CURIAE 1 From 2003 through 2006, amicus curiae Doris Anne Sadler was the duly elected Clerk of Marion County, Indiana. Marion County is the largest county in Indiana -- home to Indianapolis -- and in 2006 had an estimated population of about 865,500.2 As Clerk, Ms. Sadler was responsible for administering elections in Marion County. Ms. Sadler oversaw those elections both before and after the enactment of Public Law 109- 2005 (Indiana’s “Voter ID Law”). As such, Ms. Sadler is qualified to explain the effects of the Voter ID Law on the conduct of local elections in the State. In particular, this brief will contrast the ineffectiveness of Indiana’s former, in-person fraud prevention method (signature comparison) with the meaningful protection of voting rights afforded by the Voter ID Law. SUMMARY OF ARGUMENT The “prevention of [voter] fraud is a legitimate and compelling government goal.” Dunn v. Blumstein, 405 U.S. 330, 345 (1972). But, if the measures used to prevent that fraud are illusory, then so too is that goal. 1 Letters of consent to the filing of this brief have been lodged with the Clerk of this Court. Pursuant to Supreme Court Rule 37.6, amicus states that no counsel for a party authored this brief in whole or in part and that no person or entity other than amicus and her counsel contributed monetarily to the preparation or submission of this brief. 2 See U.S. Census Bureau, State & County QuickFacts, http://quickfacts.census.gov/qfd/states/18/18097.html (last visited Dec. 5, 2007). 2 Before Indiana enacted its Voter ID Law, poll workers had one tool at their disposal to combat fraud: a comparison of Election Day signatures to those previously entered in the voter registration rolls. Although minimally obtrusive, the effectiveness of signature comparisons as a barrier to fraud was equally negligible. Signature authentication is unquestionably a subjective, and unreliable, means of detecting fraud. Signatures naturally change due to age or other factors, and Indiana’s volunteer poll workers have never had the qualifications necessary to conduct an accurate handwriting comparison in a matter of moments. Challenges based upon signature comparisons were inherently unworkable, and presented opportunities for potential manipulation of the process. Moreover, even when an individual’s identity was legitimately challenged, that person could still vote, leave the polls, and never be found again. As a result of these issues, an individual’s Election Day signature was nothing more than an oath that he or she was that registered voter. Unfortunately, as this Court noted in Dunn, “false swearing is no obstacle to one intent on fraud.” Id. at 346. For the maxim of “one person, one vote” to have meaning, States must be able to guard against “the diluting effect of illegal ballots.” Gray v. Sanders, 372 U.S. 368, 380 (1963). “[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). If one begins from the premise that signature comparison is inadequate for the task, then the question of whether States should be permitted to require a government- 3 issued photo ID is not at all difficult. Regardless of the standard of review this Court chooses to apply to the Voter ID Law, there simply is not a more narrowly tailored way of “ensuring that an individual’s right to vote is not undermined by fraud in the election process.” Burson v. Freeman, 504 U.S. 191, 199 (1992) (opinion of Blackmun, J.). Finally, at its core, Indiana’s Voter ID Law represents a political compromise, not a constitutional violation. Judge Posner correctly noted that, in this case, “the right to vote is on both sides of the ledger.” Crawford v. Marion County Election Bd., 472 F.3d 949, 952 (7th Cir. 2007). By enacting the Voter ID Law, Indiana has taken legitimate steps to protect the value of legally registered votes. Doing so, the Petitioners contend, may make it more difficult for some theoretical group of voters to exercise their right. Every voting regulation invariably has some impact on some segment of the population of potential voters,