Supreme Court Upholds Indiana Voter Identification Law

On Monday, the United States Supreme Court announced its decision in Crawford v. Marion County, a lawsuit challenging the constitutionality of Indiana's recently enacted voter identification law. This law, which took effect in July 2005, requires individuals voting in person to present a photographic identification at the polls. (Indiana Public Law 109-2005) Not long after the Indiana Legislature passed the law, the American Civil Liberties Union and the National Association for the Advancement of Colored People, along with William Crawford, an Indiana legislator who represents one of the poorest districts in Indiana, filed a challenge to the statute on behalf of the plaintiff, claiming that it poses an unjustified burden on the poor and minorities. (New York Times, Justices Agree to Hear Case About Voter ID Laws, September 26, 2007.) The Supreme Court rejected this argument, and in a 6-3 decision, upheld the law.

In the controlling (plurality) opinion, Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy, held that the statute was validly directed toward the legitimate goals of fraud prevention and vote integrity. The Justices also found that the plaintiffs had failed to present anything more than hypothetical evidence that the burdens of the statute were so great that they were unjustified. The Court did note that the burden on those whose religions keep them from being photographed might be unduly burdened by having to perpetually return to the county clerk's office to sign an affidavit after casting a provisional ballot. However, it decided that in the unlikely case evidence surfaces after the fact of sizable voter disenfranchisement, another challenge to the statute as applied might be successful.

The Supreme Court's decision is particularly important because it provides guidance to other states seeking to enact similar voter ID laws. For example, while the Court held that voter ID laws are constitutional in general, it clearly indicated that such laws will not pass muster if voters must pay a fee to obtain the identification. As the Court explained, "The fact that most voters already possess a valid driver's license, or some other form of acceptable identification, would not save the statute . . . if the state required voters to pay a tax or a fee to obtain a new photo identification." (Crawford v. Marion County, 553 U.S. ___, *14-15)

Critics of the Court's decision continue to point to the burdens that the statute imposes on those lacking a photographic identification. In an electronic forum hosted by the Washington Post on Tuesday, Georgetown Law Professor Roy Schotland pointed out that the burdens on those seeking identification are the strictest in the nation and that "the way yesterday's decision was written will make it much harder to challenge any law that's arguably an unduly burdensome restriction." (Washington Post, April 29, 2008)

Supporters of voter ID laws, including former President Jimmy Carter and former Secretary of State James Baker, argue that ballot security is an integral part of free and fair elections. (New York Times, Feb. 3, 2008) Indiana officials were especially pleased with the Court's decision, noting that the favorable ruling will influence the efforts of other states. According to Indiana's Republican secretary of state, Todd Rokita, the Court's decision provides a clear roadmap for other states. "We've been getting calls from 25 other states that have been waiting for a green light, waiting to proceed." (McClatchy Newspapers, Apr. 29, 2008)

To read the opinion of the Court, click here.

Senate Panel Critical of Real ID Implementation, While Arkansas Leads the Way

On Tuesday, the Homeland Security Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia held a hearing on the implementation of the REAL ID law. Passed in 2005, REAL ID requires states to implement minimum security, authentication and issuance procedures standards for driver's licenses and state ID cards in order for them to be accepted for federal purposes, including passing through airport security and entering federal buildings. In January, Homeland Security issued final regulations for implementing the law, which phased in the new ID requirements over ten years.

Most of the Senators on the panel were critical of Homeland Security's efforts to implement REAL ID, citing concerns over the cost to the states and security of the data collected. The Chairman of the committee, Daniel Akaka (D-HI), expressed particular concern that the data stored on the card and in state records could "provide one-stop shopping for identity thieves." (Statement of Senator Daniel K. Akaka, April 29, 2008) Senator Akaka has introduced legislation to eliminate REAL ID, and replace it with "negotiated" rulemaking between the states and the federal government. Akaka's proposal has the support of Jon Tester (D-MT) who was also a member of the panel.

However, Stewart Baker, Assistant Secretary for Policy at the Department of Homeland Security pointed out that the encrypted information in the card only provides that information printed on the outside of the card, and it does not contain sensitive information that would raise identity theft concerns. He reiterated the need for improved document security and reminded the panel, "The same criminal networks that helped illegal immigrants obtain fraudulent identity documents were put to use by the terrorists who attacked us on 9/11.  Eighteen of the nineteen hijackers carried government-issued IDs, many obtained fraudulently. This led the 9/11 Commission to conclude, 'for terrorists, travel documents are like weapons.'" (Testimony of Stewart Baker, Assistant Secretary of Policy, Department of Homeland Security Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia Committee on Homeland Security and Governmental Affairs United States Senate, Apr. 29, 2008)

Meanwhile, the Arkansas Democrat Gazette reported last week how Arkansas's implementation of secure driver's licenses is having success in thwarting attempts to obtain fraudulent identification. The Arkansas program uses a facial-recognition program on every image captured for a driver's license. The program applies a computer algorithm to match images. Workers then personally examine the matches and mail letters to identification holders suspected of having licenses in more than one name asking them to come in and discuss the matter. An assistant commissioner for the Arkansas's Department of Finance and Administration told the paper, "Most of them that have been asked have not come, I think some of them might not be in the country any longer, that they were possibly illegal to start with and probably if we sent two letters to two people and they got both of them, they realized there was a problem." (Arkansas Democrat Gazette, April 28, 2008)

Guatemalan President Argues For Protected Status for Illegal Aliens

On Monday, Guatemalan President Alvaro Colom met with President Bush and urged him to grant Temporary Protected Status (TPS) to Guatemalan aliens who are in the United States illegally. In a press conference with Mr. Colom, President Bush told reporters, "I assured him that I will consider his request, and I assured him that I believe comprehensive immigration reform is in our nations' best interests." (White House Press Release, April 28, 2008 )

TPS is a temporary legal status granted by the Department of Homeland Security (DHS) to nationals of certain countries designated by the Secretary of Homeland Security. TPS was created by Congress in 1990 to provide protection to aliens in the United States who are temporarily unable to safely return to their home countries because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. Under TPS, a foreign national may remain in the United States and obtain work authorization. Once the TPS status is terminated, the foreign national's status returns to the same immigration status he or she had prior to the TPS designation. While under TPS, illegal aliens are protected from deportation. However, if an illegal alien does not obtain legal status while under TPS, his or her status would revert to an illegal status when TPS is terminated. Currently DHS has granted TPS status to nationals of Burundi, El Salvador, Honduras, Nicaragua, Somalia, Sudan, and Liberia.

President Colom told the Washington Post that there should be recognition of the "great sacrifice" made by Guatemalans who leave their families to seek work in the United States. He also argued that illegal immigration needs to be addressed "in a multilateral way" rather than through arrests and deportations. More than one million Guatemalans live in the U.S. and send back home $3.6 billion a year in remittances, representing 12 to 30 percent of Guatemala's gross domestic product. By some estimates more than half are in the U.S. illegally. (Washington Post, April 30, 2008)

At Hearing on "Wasted Visas," Questions about Reasonable Limits on Immigration Loom Large

On Wednesday, the House Judiciary Committee Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held a hearing on so-called "wasted visas." These are family or employment-based green cards that have been unallocated each year because the numerical ceiling was not reached. The ostensible purpose of the hearing was to provide support for legislation authored by the Subcommittee Chairperson Zoe Lofgren (D-CA) and co-sponsored by Representative James Sensenbrenner (R-WI) that would "recapture" those visas in subsequent years. (H.R. 5882)

At the hearing, representatives from U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State were present to explain why a handful of allocated visas go unused each year. Tony Edson, Deputy Assistant Secretary of State for Visa Services, explained that federal law places an annual cap on overall immigration and that these visas are further divided up based on family, employment and country subcategories (which overlap the prior two). Each month, stated Mr. Edson, the State Department adjusts the number of visas "available" based on these subcategories and the demand placed on them from immigrants applying from all over the world—some already in the U.S. on temporary visas. The number set for each month is an estimate, and if the demand for a particular category does not meet the number of available visas, some may go unused. (Testimony of Stephen A. Edson, p. 1-4, April 30, 2008)

Mr. Edson said the State Department strives to issue 100% of the available visas, and that over the last three years, it has issued over 95 percent of the annual worldwide limit. He also noted that it would be difficult to increase the issuance rate above 95 percent as the Department is statutorily barred from exceeding the annual limits. (Id.)

Michael Aytes, Acting Deputy Director of USCIS, pointed out that the wait may seem particularly long for applicants outside the country, as the majority of the green card recipients (59 percent) are already living in the United States on temporary visas when they adjust status to permanent residence. Two-thirds of all new legal permanent residences (LPR) were granted permanent residence based on a qualifying family relationship with a U.S. citizen or LPR. The countries that accounted for the most new permanent residents in 2007 were Mexico (14 percent), China (7 percent), and the Philippines (7 percent). (Testimony of Michael Aytes, April 30, 2008)

Congressman Steve King (R-IA), Ranking Member of the Immigration Subcommittee, questioned the need for recapturing the additional visas. King pointed out that the U.S. is issuing over one million green cards per year, far in excess of the 226,000 family cap and the 140,000 employment-based cap. Recipients of these additional green cards are often immediate family members of citizens who are exempted from the immigrant visa caps. Noting that most Americans support reducing immigration, King stated, "We should not be seeking to accomplish a back-door increase in immigration levels by adding green card numbers through 'recapturing' simply because the maximum number of green cards allowed were not issued in some years."

To view the hearing before the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, click here.

Recent Floor Statements

Rep. Ted Poe (R-TX) commented on San Francisco Rolls Out The Red Carpet For Illegals (May 1, 2008)
Rep. Ted Poe (R-TX) commented on The Amazing Border Sheriffs (April 30, 2008)
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SOURCE: Fair Legislative Updates