 United States Court of Appeals
                    For the Seventh Circuit
                    Chicago, Illinois 60604

                           APRIL 5, 2007

                        Before
       Hon. Frank H. Easterbrook, Chief Judge
       Hon. Richard A. Posner, Circuit Judge
       Hon. Joel M. Flaum, Circuit Judge
       Hon. Kenneth F. Ripple, Circuit Judge
       Hon. Daniel A. Manion, Circuit Judge
       Hon. Michael S. Kanne, Circuit Judge
       Hon. Ilana Diamond Rovner, Circuit Judge
       Hon. Diane P. Wood, Circuit Judge
       Hon. Terence T. Evans, Circuit Judge
       Hon. Ann Claire Williams, Circuit Judge
       Hon. Diane S. Sykes, Circuit Judge

Nos. 06-2218, 06-2317
WILLIAM CRAWFORD, et al.,
                                                Plaintiffs-Appellants,
                                  v.

MARION COUNTY ELECTION BOARD, et al.,
                                               Defendants-Appellees.
                           ____________
             Appeals from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
       No. 1:05-cv-00634-SEB-VES—Sarah Evans Barker, Judge.
                           ____________
2                                       Nos. 06-2218, 06-2317

                          ORDER
  On January 17, 2007, plaintiffs-appellants filed a petition
for rehearing with suggestion for rehearing en banc, and on
February 6, 2007, defendants-appellees filed an answer to
the petition. A vote of the active members of the court on
whether to grant rehearing en banc was requested and a
majority of the judges have voted to deny the petition.Œ
Judge Wood’s opinion dissenting from the denial of re-
hearing en banc is appended.
    The petition is therefore DENIED.




  WOOD, Circuit Judge, with whom Judges ROVNER, EVANS,
and WILLIAMS join, dissenting from the denial of rehearing
en banc. The panel’s opinion in this case addresses an
exceptionally important unresolved question of law: what
level of scrutiny should courts use when evaluating man-
datory voter identification laws? I agree with the concerns
expressed by Judge Evans, writing in dissent from the
panel’s opinion. Although the panel majority correctly
notes that the Supreme Court’s decision in Burdick v.
Takushi, 504 U.S. 428 (1992), recognizes that strict scrutiny
is not required for the assessment of every last election
regulation, no matter how trivial the rule or how light the
burden on voting, the panel assumes that Burdick also
means that strict scrutiny is no longer appropriate in any
election case. As Judge Evans makes clear, however, Burdick


Œ
  Judge Rovner, Judge Wood, Judge Evans and Judge Williams
voted to grant the petition for rehearing en banc.
Nos. 06-2218, 06-2317                                         3

holds no such thing. To the contrary, Burdick simply estab-
lished a threshold inquiry that a court must perform before
it decides what level of scrutiny is required for the particular
case before it. As I explain briefly below, when there is a
serious risk that an election law has been passed with the
intent of imposing an additional significant burden on the
right to vote of a specific group of voters, the court must
apply strict scrutiny. Only this exacting approach will
suffice to ensure that state law is not being used to deny
these citizens their fundamental right to vote.
   The Burdick Court held that “the rigorousness of [the
court’s] inquiry into the propriety of a state election law
depends upon the extent to which a challenged regulation
burdens First and Fourteenth Amendment rights.” 504 U.S.
at 434. If those rights are subjected to “severe” restrictions,
the Court reaffirmed that “the regulation must be ‘narrowly
drawn to advance a state interest of compelling impor-
tance.’ ”Id., quoting Norman v. Reed, 502 U.S. 279, 289 (1992).
If, on the other hand, the state law provision “imposes only
‘reasonable, nondiscriminatory restrictions’ upon the First
and Fourteenth Amendment rights of voters, ‘the State’s
important regulatory interests are generally sufficient to
justify’ the restrictions.” 504 U.S. at 434, quoting Anderson
v. Celebrezze, 460 U.S. 780, 788 (1983). To sort election laws
into one category or the other, Burdick calls for the court to
“weigh the character and magnitude of the asserted injury”
that the plaintiff is asserting “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
plaintiff’s rights.” 504 U.S. at 434 (internal quotation marks
and citations omitted).
  In this case, the plaintiffs assert that the state voter
identification law is causing the wholesale disenfranchise-
4                                      Nos. 06-2218, 06-2317

ment of some eligible voters. To the extent that it operates to
turn them away from the polls, it is just as insidious as the
poll taxes and literacy tests that were repudiated long
ago. Anecdotal evidence suggests that the kind of close look
that would take place if we used strict scrutiny would
reveal troublesome patterns resulting from these new
identification laws. The New York Times recently reported
that overall voter turnout in these states decreases by about
three percent, and by two to three times that much for
minorities. Christopher Drew, Low Voter Turnout is Seen in
States That Require ID, NY TIMES, Feb. 21, 2007. In this case,
the majority concedes that poorer voters are less likely
to have the necessary identification than their wealthier
counterparts and that there is a strong correlation between
income and voting for particular political parties. My col-
leagues dismiss these facts by concluding that “[t]he fewer
people harmed by a law, the less total harm there is to
balance against [state interests].” Recent national election
history tells us, to the contrary, that disenfranchising
even a tiny percentage of voters can be enough to swing
election outcomes. Christine Gregoire captured the guberna-
torial race in Washington State in 2004 with a margin of only
129 votes. See http://en.wikipedia.org/wiki/Washington_
gubernatorial_election,_2004 (visited March 22, 2007).
Representative Vern Buchanan of Florida’s 13th Congressio-
nal District won by only 329 votes. See http://en.wikipedia.
org/wiki/Florida%27s_13th_congressional_district (visited
March 22, 2007). Senator Jon Tester of Montana won his seat
by a slightly larger margin—2,847 votes—but hardly a
gap that implies that small numbers do not matter. See
http://en.wikipedia.org/wiki/Jon_Tester (visited March 22,
2007). And surely no adult now living in the United States
needs to be reminded of how close the 2000 Presidential
race was.
Nos. 06-2218, 06-2317                                         5

  Putting aside these examples, as a matter of law the
Supreme Court’s voting cases do not support a rule that
depends in part for support on the idea that no one vote
matters. Voting is a complex act that both helps to decide
elections and involves individual citizens in the group act of
self-governance. Even if only a single citizen is deprived
completely of her right to vote—perhaps by a law prevent-
ing anyone named Natalia Burzynski from voting without
showing 10 pieces of photo identification—this is still a
“severe” injury for that particular individual. On the other
hand, some laws that place a minor obstacle to voting in the
way of many citizens—perhaps one that prevents any
person from voting who is not registered to vote 28 days in
advance of the election—are rightly seen as “reasonable
[and] nondiscriminatory.”
   The state’s justification for the new voting requirement is
voter fraud—specifically, the problem of fraud on the part
of people who show up in person at the polling place. Yet
the record shows that the existence of this problem is a
disputed question of fact. It is also a crucial question for the
inquiry that Burdick demands, because if the burden on
voting is great and the benefit for the asserted state interest
is small as an empirical matter, the law cannot stand. This
creates, as FED. R. CIV. P. 56 puts it, a “genuine issue of
material fact” that may not be resolved in favor of the
state in ruling on the state’s own motion for summary
judgment. In fact, it appears that no one has ever, in Indi-
ana’s history, been charged with voter fraud. Burdick
requires an inquiry into the “precise interests put forward
by the State as justifications for the burden imposed,” but in
this case, the “facts” asserted by the state in support of its
voter fraud justification were taken as true without any
examination to see if they reflected reality.
6                                       Nos. 06-2218, 06-2317

  Finally, this court should not ignore this country’s history.
Unfortunately, voting regulations have been used in the not-
so-distant past for discriminatory reasons. The law chal-
lenged in this case will harm an identifiable and often-
marginalized group of voters to some undetermined
degree. This court should take significant care, including
satisfactorily considering the motives behind such a law,
before discounting such an injury.
  It may be that even under the exacting scrutiny Burdick
mandates for laws that impose severe restrictions, under
which we must decide whether the regulation is narrowly
drawn to advance a state interest of compelling importance,
the Indiana law challenged here would stand. We are not
yet in a position to conduct that inquiry. Before undertak-
ing that task, the full court should decide what standard
should govern review of such a law and what kind of
empirical record must be assembled to support whatever
standard it chooses. For all of these reasons, I respectfully
dissent from the decision not to rehear this case en banc.

A true Copy:
        Teste:

                           _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                     USCA-02-C-0072—4-5-07
