Explicit racism has disappeared from mainstream political discourse in the United States. Jesse Helms made his long career in Washington by muttering about “bloc votes,” but he’s been gone from the Senate since 2003, and he has no similarly outspoken successors. Lest anyone think that racial discrimination itself has been banished from politics, however, Crawford v. Marion County Election Board, a case that will be heard this week by the Supreme Court, provides a disturbing reminder.

One of the lesser outrages of the Supreme Court’s decision in Bush v. Gore was the banal assertion that “after the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting.” In fact, the chief “improvement” that has come from the legislatures since 2000 is voter-I.D. laws, like the one that gives rise to this week’s case. In 2005, Indiana began requiring voters to present government-issued photo identification before casting a ballot. (Georgia passed a nearly identical law at about the same time, and several other states have tightened voter-I.D. requirements.) These laws, their sponsors assured the electorate (and now the courts), were passed to correct the problem of voter fraud. As the state of Indiana says in its brief to the Justices, the new rule “establishes reasonable, long-overdue election-security reform in a State highly vulnerable to in-person election fraud.”

Actually, it is this purported justification that is the real fraud. The latest and most extensive examination of electoral irregularities, released in November by the nonpartisan research institute Demos, determined that voter fraud was “very rare,” and every other respectable study has reached the same conclusion. This is certainly true in Indiana, where legislators said they were aiming to stop “voter impersonation,” which was already a crime in the state; in the entire history of Indiana, the number of prosecutions for this offense has been zero. Nationwide, despite an attempt by the Bush Justice Department to crack down on voter fraud, there were only a hundred and twenty federal prosecutions and eighty-six convictions between 2002 and 2006—a period in which close to four hundred million votes were cast.

“Let’s not beat around the bush,” Terence T. Evans, the dissenting Court of Appeals judge in the Indiana case, slyly wrote. “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.” He’s not the only one to notice: the three federal judges who approved the Indiana law were appointed by a Republican President; the lone dissenter was appointed by a Democrat. It was also Republican-dominated legislatures that produced the Indiana and Georgia laws, both of which were signed by Republican governors.

Who are the “certain folks,” in Judge Evans’s delicate phrase, that the Indiana law is trying to discourage? The best answer can be found in a friend-of-the-court brief in the case filed by twenty-nine leading historians and scholars of voting rights. They concluded that the Indiana law belongs to a malign tradition in “this nation’s history of disfranchising people of color and poor whites under the banner of ‘reform.’ ” Such measures as the poll tax and literacy tests, they write, were “billed as anti-fraud or anti-corruption devices; yet through detailed provisions within them, they produced a discriminatory effect (often intended) within the particular historical context.” So it will be in Indiana, where the law creates a series of onerous barriers to voting. Consider one: you can get a government photo I.D. by showing your birth certificate, but you can’t get a copy of your birth certificate unless you can produce certain official photo I.D.s. And, with up to twenty million Americans of voting age lacking government-issued identification, the matter of requiring photo I.D.s has broad implications.

The Supreme Court case comes at a time when the nation does face a major problem with its elections, but it is the opposite of the one the Indiana law prescribes: it’s not that too many people are voting but too few. Voter turnout rose in the 2004 Presidential election, but it still barely reached sixty per cent. There are any number of ways to begin to address this predicament: holding elections on weekends; allowing same-day registration and voting by mail, telephone, or the Internet; permitting registered voters to cast their ballots over several days or weeks; and putting polling places in shopping malls, to name just a few.

As the Demos report observes, “Overall, the disfranchisement of voters through antiquated voting systems, errors, mismanagement of registration bases, and intimidation or harassment is a far bigger problem today than traditional forms of election fraud.” (These issues, it need hardly be added, were the real problem in Florida in 2000.) Unfortunately, the only serious attempt to address the legacy of 2000, the federal Help America Vote Act, which passed in 2002, today ranks somewhere between a disappointment and a fiasco. In essence, that law issued an unfunded mandate to the states to improve their voting procedures by 2006. Some states, like New York, largely ignored it; others, like Florida and Ohio, the states that, respectively, decided the past two Presidential elections, invested in systems that were, in many cases, less reliable than the old ones.

This week, a majority of the Justices will likely find a way to make a bad situation worse, and uphold the Indiana law. As a general matter, in recent years the Court has been reluctant to find what is charged in this case: a violation of the constitutional guarantee of equal protection of the laws. (The notable exception, to belabor the issue, was for a plaintiff named George W. Bush.) In the end, though, it will not be the judiciary that rescues democracy; whatever the obstacles, the problems with the ballot box must be solved at the ballot box. ♦