(Updated 6:30 p.m. EST)
Several U.S. Supreme Court justices on Wednesday (Jan. 9) questioned whether it's too early to consider striking down an Indiana law requiring voters to show photo identification, especially because there is limited evidence showing whether the rules are discouraging voters.
The high court heard arguments in a challenge brought by Democrats to Indiana's law, which passed the Indiana General Assembly with only Republican support in 2005.
The law was in place for the congressional races in 2006, and the high court's decision could determine whether Indiana can use it for this year's presidential race. It could also affect similar laws in Florida, Georgia and Missouri.
But despite three years of litigation over the Indiana measure, 39 friend-of-the-court briefs filed in the case and intense media interest in the outcome, the judges still couldn't nail down some very basic facts about the law.
Left unanswered were their questions about how often people impersonated other voters or how many Indiana voters would face new obstacles because of the law and why Indiana lawmakers chose such strict rules to prevent voter impersonation fraud.
"You had not come up with a single instance of somebody who was denied the right to vote because they didn't have a photo ID," Chief Justice John Roberts told Paul Smith, the lawyer representing the Indiana Democratic Party in its challenge to the law.
Smith explained that the lawsuit was filed before the state held any elections under the 2005 law. But the lack of specifics about who the law might harm and how continued to crop up during the hour-long argument.
The Indiana Democratic Party challenged the law in federal court in 2005. Judges appointed by Republican presidents upheld it at both the trial and appellate levels. In the appeals court, though, a judge named by a Democratic president issued a caustic dissent.
At the hearing Wednesday, Justice Ruth Bader Ginsburg noted that 34 people cast provisional ballots in Marion County, but only two of those counted because the other voters didn't follow up with a visit to county offices to prove their identity.
The law requires voters to present a government-issued photo ID in order to take part in the elections. Voters without the proper identification can cast provisional ballots, but those only count if the voter shows a photo ID at a county election office within 10 days.
Ginsburg insisted that the harm was "not hypothetical" but "real." Poor people without the proper identification wouldn't be able to vote, unless they followed up with the second trip.
There's a good reason to consider the challenge before voters complain, Ginsburg said. Once the elections occur, it's too late. Voters will face increased difficulties at the polls, which could discourage them from participating or make it more likely their votes won't count, she said.
That means "the result will be skewed in favor of the opposite party (the Republicans), because there are people who have not been able to vote," she said.
Smith, the lawyer for the challengers, said the court should take into account even the "minor inconveniences" suffered by regular voters, along with the bigger hurdles for people without IDs.
"You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?" asked Justice Anthony Kennedy.
Justice David Souter pressed lawyers for both sides to estimate how many voters didn't have the types of government-issued IDs - like driver's license - necessary to vote under the law. The answers he got ranged from 10,000 to 400,000.
Indiana Solicitor General Thomas Fisher told Souter the law would affect only an "infinitesimal part of the electorate."
But Souter objected. "Isn't that a bit of a stretch?" he asked.
Justice Antonin Scalia cited the scant evidence as one reason to settle the controversy sometime later, when voters who actually claimed to be harmed by the law could bring their specific complaints to court.
"This court is sitting back and looking at the ceiling and saying, oh, we can envision not the case before us, but other cases. Maybe it's one half of one percent or maybe it's 45 percent. Who knows? But we can imagine cases in which this law could be unconstitutional, and therefore, the whole law is unconstitutional. That's not ordinarily the way courts behave, is it?" he asked.
Justice Samuel Alito questioned how the court could decide the case without those key facts. "How do we tell whether this is on one side of the line or the other side of the line?" he asked.
But Smith argued that taking a piecemeal approach would lead to lots of further litigation, with different rules for every type of voter who claimed to be harmed by the law.
"The whole thing would be a complete and utter morass," he said.