Does Indiana’s Photo ID Law Violate the Constitution?

by P.A. Madison on November 21st, 2007

Following the steps of other third parties, Dianne Feinstein (D-Calif.), with Rep. Robert Brady (D-Pa.) and Zoe Lofgren (D-Calif.) have recently filed an amicus curiae brief with the U.S. Supreme Court over Indiana’s photo-identification requirements for federal elections.

The brief asserts Indiana State law is inconsistent with, and preempted by, the federal Help America Vote Act of 2002. The Federal statute mandates certain identification requirements only for first-time voters who register to vote by mail. The Federal identification requirements can be satisfied by a number of alternative documents enumerated in the law.

“The Indiana statute subjects voters to multiple and inconsistent requirements to exercise the right to vote,” Senator Feinstein said. “The federal law allows flexibility in establishing voter identification. Indiana’s statute improperly attempts to trump federal law by restricting that flexibility. As a result, some Indiana voters may be required to show multiple forms of identification in order to comply with the state laws.”

Rep. Brady fired off the catch-all code word “disenfranchise” as the basis for challenging the law.

I fail to see any supported constitutional issues involved with such arguments that could warrant a Supreme Court challenge over a proper exercise of State sovereignty – and where the U.S. Constitution gives Congress no authority to touch. In short, States can trump Dianne and the Federal government all they want when it comes to exercising reserved powers that are neither prohibited to them nor delegated to Congress to legislate on.

Requiring photo ID to vote is simply a voter qualification requirement to exercise the right to vote granted under State law. One will look in vain to find the slightest federal authority over State voter qualifications anywhere in the U.S Constitution. If Congress had magical powers to pass any law they please, under any pretense, then they could had easily passed a law banning “poll taxes” without the fuss of amending the Federal Constitution (Amendment XXIV – 1964).

John A. Bingham, primary author of the fourteenth amendments first section said, “The qualification of electors and the manner of holding or conducting elections are as distinct from each other as light and darkness.” In other words, Congress power over the manner of holding or conducting federal elections has nothing to do with the manner of determining who may vote under what qualifications. The manner of conducting of a federal election is of course merely determining whether the election shall be by either voice or ballot.

The framers of the 15th amendment recognized Congress was powerless over such things as religious tests or property requirements when it came to voter qualifications. There was an attempt to remove State property and educational qualifications under the fifteenth amendment but failed to gain the needed support to pass.

Sen. Jacob M. Howard made the following comments on the right of the States to exercise their full and complete authority over regulating suffrage:

The State of Virginia the moment she is admitted into the Union can by her Legislature, and in perfect consistence with her constitution, propose such an amendment to her local constitution as shall in effect disfranchise nine hundred and ninety-nine out of a thousand of the colored population of that State, by imposing a property qualification upon them, and it would be no violation of the Fifteenth Amendment…

The States have exercised the power of controlling, regulating, and restricting popular suffrage from the commencement of the State governments down to the present time. It is one of the rights reserved to the States, and is to be exercised in its fullness and in its plenitude without any control on the part of Congress or any question being put by Congress to them.

Justice Story said, “It cannot be said with any correctness that Congress can in any way alter the rights or qualifications of voters.”

James Madison, Jr. said, “The right of suffrage is certainly one of the fundamental articles of republican government, and ought not to be left to be regulated by the [Federal] Legislature.”

Indiana’s voter photo ID requirement cannot be said to be preempted by federal law because 1) there is no constitutional authority for Congress to pass such a law, and 2) there is no prohibition against the States in passing voter qualifications. In short, unless there is a specific State law involved that says only whites, or males, or folks over the age of 60 may cast a ballot, then there is no U.S. constitutional issue involved.

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5 Responses | Leave a Comment
  1. jerryflower says:

    I think, photo identification should be necessary for the first time voters by mail for federal elections. So it is a good decision by the law.



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  2. Dave M. says:

    Speaking of poll taxes, I was of the opinion that requiring the ID would be a de facto poll tax if citizens were required to pay for them, and thus unconstitutional.

    However, the Indiana law provided free voter IDs if people could not afford some other form of valid ID, so the qualification stood to constitutional scrutiny in that regard, in my opinion.

  3. Randy T. says:

    I see more court activism under the disguise of upholding some non-existent right in this matter. Sad our Constitution always is trashed in favor of partisan platforms.

  4. JohnBoy says:

    Yeah, if the constitution gave congress direct authority in determining who can vote or not, why then were constitutional amendments required? Seems pretty clear states did not want congress vested with powers over voter qualifications. You lay down and let congress and the courts weld all the power you can be sure states would eventually be forced to open their voter rolls to the world at large.

  5. UPI Guy says:

    You are correct on constitutional points and facts. However, the Supreme Court seldom considers whether a federal law is constitutional or not and instead only scrutinize State laws under the letter of the Constitution. If it is a federal law in question, then you can bet at least five justices can be counted on to automatically give it a stamp of approval, no questions asked.

    FDR would be pleased with today’s “no questions asked” supreme court.

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