In the rapid expansion of states with voter-identification laws and the backlash of litigation that always follows, there is one constant from proponents: that the Supreme Court already has declared them constitutional. The court ruled in 2008 that Indiana’s requirement for a photo ID was legal, with none other than liberal justice John Paul Stevens writing what was described as the “lead opinion” in a fractured 6-to-3 ruling. But in the years since, Stevens — who retired from the court in 2010 — has never seemed comfortable with his role in the case. And he recently expressed doubts again about whether he had all the information he needed in reaching what he called a “fairly unfortunate decision.”
Stevens discussed Crawford v. Marion County Election Board in a “conversation” with his successor, Justice Elena Kagan, at the judicial conference of the U.S. Court of Appeals for the 7th Circuit. Their gentle interrogator was a member of that court, Judge Diane P. Wood.
It was Wood’s question about whether judges should base their decisions only on the record before them — or whether it’s permissible for them to use research they conduct on their own — that led to Stevens’s ruminations.
Indiana was one of the first states to enact a strict photo-ID requirement, which the Republican-controlled legislature said was needed to avoid voter fraud.