dissenting.
Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic. We should subject this law to strict scrutiny — or at least, in the wake of Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), something akin to “strict scrutiny light”' — and strike it down as an undue burden on the fundamental right to vote.
*955The percentage of eligible voters participating in elections has, for many years, been on a downward trajectory. With that being the case, one would think states should be looking for creative ways (like allowing people to vote at places they frequent and are familiar with, like shopping malls rather than basements of fire stations) to increase voter participation. Yet, the Indiana law we sanction today does just the opposite. Constricting the franchise in a democratic society, when efforts should be instead undertaken to expand it, is not the way to go.
The fig leaf of respectability providing the motive behind this law is that it is necessary to prevent voter fraud — a person showing up at the polls pretending to be someone else. But where is the evidence of that kind of voter fraud in this record? Voting fraud is a crime (punishable by up to 3 years in prison and a fine of up to $10,000 in Indiana) and, at oral argument, the defenders of this law candidly acknowledged that no one — in the history of Indiana — had ever been charged with violating that law. Nationwide, a preliminary report to the U.S. Election Assistance Commission has found little evidence of the type of polling-place fraud that photo ID laws seek to stop. If that’s the case, where is the justification for this law? Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table? I think not.
Indiana law provides that a voter shall be challenged at the poll and required to vote only by provisional ballot if: (1) “the voter is unable or declines to present the Proof of Identification” or (2) a member of the precinct election board determines that the Proof of Identification provided by the voter does not qualify as Proof of Identification under the law. “Proof of Identification” is defined as a document that satisfies all the following:
(1) The document shows the name of the individual to whom the document was issued, and the name conforms to the name in the individual’s voter registration record.
(2) The document shows a photograph of the individual to whom the document was issued.
(3) The document includes an expiration date, and the document:
(A) is not expired; or
(B) expired after the date of the most recent general election.
(4) The document was issued by the United States or the State of Indiana.
The potential for mischief with this law is obvious. Does the name on the ID “conform” to the name on the voter registration list? If the last name of a newly married woman is on the ID but her maiden name is on the registration list, does it conform? If a name is misspelled on one — Schmit versus Schmitt — does it conform? If a “Terence” appears on one and a shortened “Terry” on the other, does it conform?
But these are perhaps minor concerns. The real problem is that this law will make it significantly more difficult for some eligible voters — I have no idea how many, but 4 percent is a number that has been bandied about — to vote. And this group is mostly comprised of people who are poor, elderly, minorities, disabled, or some combination thereof. I would suspect that few, if any, in this class have passports (which cost in the neighborhood of $100), and most don’t have drivers licenses (who needs a drivers license if you don’t drive a car?) or state-issued ID cards which require valid (certified) birth certificates. And it’s not particularly easy for a poor, elderly person who lives in South Bend, but was born in Arkansas, to get a certified copy of his birth certificate.
*956Now I certainly agree with my brother Posner that “it is exceedingly difficult to maneuver in today’s America without a photo ID.” But Indiana’s law mostly affects those who, for various reasons, lack any real maneuverability at all. And lest one thinks that those who have maneuverability are immune from running into trouble with this law, consider this anecdotal tidbit.
The Washington Post (Nov. 3, 2006) reported that on Indiana’s primary election day, Rep. Julia Carson1 shoved her congressional identification card in a pocket, ran out of her house and raced down the street to be at her polling site when it opened at 6 a.m. Carson, seeking to represent an Indianapolis district for a sixth term, showed the card to a poll worker, who said it was unacceptable under a new state law that requires every voter to show proof of identity with a certain type of photo ID. But Carson, after being turned away, went home and later returned to their polling places to cast her vote. Would most people, especially those without a vested interest in the system, do the same thing? I doubt it.
I believe that most of the problems with our voting system — like deceased persons or felons on registration rolls, machines that malfunction, and confusing ballots (think butterfly) — are suggestive of mismanagement, not electoral wrongdoing. And I recognize that there is, and perhaps there may always be, a fundamental tension between claims of voter fraud and fears of disenfranchisement. But Indiana’s law, because it allows nothing except a passport or an Indiana ID card to prove that a potential voter is who he says he is, tips far too far in the wrong direction.
Burdick, which concerned a challenge to a Hawaii law that did not require the counting of write-in votes, put to rest the notion that strict scrutiny applies to every law that imposes a burden on the right to vote. As the Court observed:
[T]o subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest ... would tie the hands of States seeking to assure that elections are operated equitably and efficiently....
Instead, ... [a] court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs rights.”
Burdick, 504 U.S. at 433-34, 112 S.Ct. 2059 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)); Tashjian v. Republican Party of Conn., 479 U.S. 208, 213-14, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986).
So Burdick adopts a flexible standard, and as I read it, strict scrutiny may still be appropriate in cases where the burden, as it is here, is great and the state’s justification for it, again as it is here, is hollow. At the very least, I would apply a standard here that would at least be something close to “strict scrutiny light.” Applying that standard, I would conclude that Indiana’s law imposes an undue burden on a recognizable segment of potential eligible *957voters and that it therefore violates those voters’ rights under the First and Fourteenth Amendments to the Constitution.
. Ultimately, Carson, a Democrat, won her seat with a 54-46 advantage over her Republican opponent. Although it was not in the Hoosier state, Mark Sanford, the Republican governor of South Carolina, was prevented from voting last month when he showed up at his polling station without the correct ID to vote.