Unconstitutional?

It's a little difficult to work up much excitement over the U.S. Supreme Court's 6-3 decision to uphold Indiana's voter identification law. It was installed, for mostly partisan reasons, to address a problem that nobody has documented as an actual occurrence, though some have raised concerns about what could happen. But the law doesn't seem entirely unreasonable, and the high court says it doesn't place an unconstitutional burden on the right to vote.

Indiana's is the strictest of the various state laws that require a voter to present some form of identification at the polling place before casting a vote. It requires a current government-issued photo identification - essentially a driver's license or a passport, or a state ID card for non-drivers (which requires a primary document like a birth certificate). Most of the six other states with such laws require voter ID and will accept employer ID cards, student IDs and other forms of ID, including utility bills.

What was striking about this decision was that Justice John Paul Stevens, generally the court's most reliable liberal, wrote the majority decision even though voter ID laws have invariably been passed by Republican-majority legislatures and opposed by Democrats, who argue that the requirement deters qualified poor, minority and elderly voters from exercising their franchise.

Justice Stevens' opinion noted that there had been no documented cases in Indiana of what Republicans claimed to fear, one person voting in place of another. However, he also couldn't find "any concrete evidence of the burden imposed on voters who now lack photo identification." He said there was "no question about the legitimacy or importance of the state's interest in counting only the votes of eligible voters," even though the threat of fraud was more theoretical than real.

This was a "facial" challenge to Indiana's law, arguing that the law placed so great a burden on potential voters that it was unconstitutional "on its face." If it turns out that the law in practice leads to substantial number of voters being effectively disenfranchised, it could be challenged again. But both prospects seem unlikely. The parties on both sides of this issue are unduly overheated.

So a partisan rule to guard against an unlikely and probably non-existent threat might be silly, but it's not unconstitutional.

For better or worse, not every silly or unnecessary law is unconstitutional; if that were the case we would have many fewer laws. It seems like the correct result, but it's hard to get excited about it.