* Cross-posted from the American Constitution Society Blog
On January 9, the Supreme Court will hear argument in two consolidated cases testing the constitutional limits on a state’s ability to set procedural rules that restrict the franchise. The cases, collectively known as Crawford, challenge an Indiana law requiring voters at the polls to provide certain documentation: identification cards with an expiration date and photograph, issued by the state of Indiana or the federal government.
The Court’s opinion is likely to have an impact far beyond Indiana. It will refine the standard determining what states must show in order to justify a direct burden on the ability to cast a valid vote. And in so doing, it will set the ground rules governing which eligible American citizens will be able to exercise their right to vote, and which eligible citizens will not, in 2008 and beyond.
The broad contours of the legal framework for regulating the right to vote are clear: burdens on the franchise must be justified. The greater the burden, the more compelling the required justification, and the more closely the regulation at issue must be tailored to the asserted need. Lesser burdens are evaluated with a broader brush, but because they too impact the fundamental right to vote, they must still be justified by the interest asserted.
Crawford presents two related legal issues regarding the application of that framework. The first is the determination of the severity of a particular law’s burden. Crawford was a pre-enforcement challenge, brought before Indiana’s law was put into effect and without the opportunity to present direct evidence of past harm. Under such circumstances, some observers look to the nature of the burden: unlike ballot access rules, which impact only indirectly an individual’s right to vote, Indiana’s law directly restricts the ability of citizens without the required ID documents to cast a ballot that will be counted. In similar cases involving a direct burden, including Dunn v. Blumstein, and, with somewhat less clarity, Bush v. Gore and last Term’s Purcell v. Gonzalez, the Court seems to have thought the direct burden to be inherently severe and deserving of closer scrutiny.
Others, including the Seventh Circuit majority in the instant case, look to the number of citizens affected by the rule, effectively declaring a constitutional safe harbor for an as-yet-undetermined threshold number of disenfranchised citizens. The record evidence in Indiana is not pristine. But even on the least favorable interpretation, tens of thousands of Indiana voting-age citizens, including several elderly voters submitting affidavits, do not have the ID required, and the right ID takes time and money to acquire. Other evidence emerging after the trial court’s decision further demonstrates the magnitude of the problem: independent academic surveys reveal that 13% of registered Hoosiers do not have the ID necessary to vote, and in the latest municipal elections, dozens of voters in one county alone—many of whom had voted for years—were turned away because they did not show the proper documents.
The second issue raised by Crawford concerns the jurisprudential counterweight to the impact on voters: the justification for the law in question. States clearly have the authority to pass reasonable election laws necessary to safeguard the integrity of the process. But Crawford reveals no evidence that the challenged law is necessary: no showing that Indiana’s existing procedures or less draconian rules elsewhere were inadequate to address any existing problem, and more striking, no showing that the problem ostensibly justifying the law is anything but hypothetical. Indiana’s law prevents only one form of potential misconduct: impersonating another voter at the polls. Though the Crawford record and subsequent briefing contain reports of election misdeeds and mishaps of various shapes and sizes, the law’s supporters have not cited one proven incident of a fraudulent vote that Indiana’s law would prevent. Even unproven reports of potentially relevant wrongdoing are strikingly scarce.
The court of appeals weighed the burden of Indiana’s law against the asserted justification in a manner dangerously unmoored from the facts. The majority opinion, upholding the law, is replete with assumptions and suppositions, some of which may be justified, many of which are not. This is not the “careful consideration” urged by the Supreme Court just last Term.
Enter the Court, again in the thick of a presidential election season, with an opportunity to correct the analysis. The Court will determine whether a law that makes it substantially more difficult for many eligible citizens to cast a valid ballot is toward the “severe” end of the spectrum of First Amendment infringements. And it will determine whether such a law is sufficiently justified by a state’s asserted interest in confronting a hypothetical concern. Bills anticipating the outcome have already been pre-filed in state legislatures, setting the stage for a decision that will shape the electorate, in 2008 and beyond.