Yesterday, the Supreme Court heard arguments in the consolidated cases of Crawford v. Marion Cty. Election Board and Indiana Democratic Party v. Rokita, a case that could affect the fundamental right of Americans to vote and possibly even the outcome of future elections, including the 2008 election.

At issue in the case is whether Indiana’s photo voter ID law, which is the most restrictive in the nation, unconstitutionally burdens the fundamental right to vote.

Those challenging the law have introduced evidence that there are thousands of voters in Indiana, and millions nationwide, who cannot and/or do not have the very few forms of state-issued ID necessary to vindicate their right to vote, and therefore could be disenfranchised by this law. Furthermore, even the state confirms that there is no evidence that the stated reason for the imposition of this burden on voters — the prevention of in-person voter impersonation at the polls — has ever occurred in Indiana’s history. PFAWF, along with others, has filed an amicus curiae brief in support of the challengers to this law.

The justices asked several questions of all parties seeking to establish whether plaintiffs had standing to bring this case in the first place or whether this case was properly brought as a facial challenge to the statute — before it had gone into effect — but it was unclear whether there was a majority prepared to dismiss the case on either of those grounds.

On the merits (excluding the standing and facial challenge issues), the case can be boiled down to three main factors: the severity of the burden, the legitimacy of the governmental interest, and the degree to which the law is narrowly tailored. Based on the justices’ questions, it seems that there is an even split, 4-4, on the severity of the burden issue, with Justice Kennedy perhaps leaning toward finding it not very severe. There are clearly at least four justices, and probably Justice Kennedy as well, who believe that the prevention of alleged voter impersonation fraud at the polls is a legitimate governmental interest, despite the lack of any evidence that this type of fraud exists in Indiana or nationwide.

Unfortunately, it appeared that this point was not seriously challenged by Justices Souter, Ginsburg, Stevens or Breyer. However, on the final point — the tailoring of the law — it seemed that there was significant concern from five justices, including Justice Kennedy, who wondered if there were alternatives to requiring certified birth certificates to obtain photo ID, and perhaps even from Chief Justice Roberts, who hammered Indiana on its failure to maintain its voter registration rolls.

There may be substantial sentiment on the Court to finding “middle ground” (though it may be ground that favors the state more than the challengers), with Justice Kennedy playing his cards very close, but clearly and understandably somewhat concerned that this law could be tailored more narrowly to impose fewer burdens. While the Court may find a way to dismiss this case short of the merits, either by finding no standing on behalf of plaintiffs or maintaining that the facial challenge to the statute was improper, it seems somewhat more likely that the Court is ready to take on the merits to some degree — even if only to remand the case to the lower court to enhance what all the justices seem to recognize is a very limited record on both sides, particularly on the issue of burden of the law on eligible voters.

A decision is expected by the end of June at the latest and, given the upcoming national elections, possibly a couple of months sooner than that.