Constitutional Burdens on the Right to Vote: Crawford v. Marion County Election Board - Ian Mcmullen

• Jurisdiction: United States,Federal
• Publication year: 2009
• Citation: Vol. 60 No. 3

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Constitutional Burdens on the Right to Vote: Crawford v. Marion County Election Board

I. Introduction

The year of 2008 may be the most important year in election law jurisprudence for the United States Supreme Court since the landmark case of Bush v. Gore¹ in 2000. The much anticipated case of Crawford v. Marion County Election Board,² which many commentators hoped would shed some light on the parameters of state election restrictions,³ provides useful guidance on the burdens a plaintiff must show when challenging a state restriction on the right to vote.⁴ Crawford develops the Court's burden analysis substantially and therefore is critical for the practitioner in this area of law. The case also provides useful guidance for state policy makers seeking to craft legislation in an attempt to enhance the integrity of the elections process in the future.

II. Factual Background

The dispute in Crawford v. Marion County Election Board⁵ began in 2005 when the Indiana General Assembly passed the Voter ID Law.⁶ This law was enacted concurrently with a number of similar statutes in other state legislatures⁷ and requires in-person Indiana voters to present a government-issued photo identification card prior to casting their ballots.⁸ upon enactment, the law was challenged in the united States District Court for the Southern District of Indiana by the Indiana Democratic Party and the Marion County Democratic Central Committee. These plaintiffs sought a judgment declaring the requirements of the Voter ID Law invalid and an injunction to prevent their enforcement.⁹

In the district court, the plaintiffs alleged that (1) the Voter ID Law violates the Fourteenth Amendment to the united States Constitution¹⁰ by placing a substantial burden on the right to vote; (2) the Voter ID Law is not a necessary or appropriate method to avoid election fraud; and (3) the Voter ID Law will arbitrarily disenfranchise qualified voters who do not have and are unable to readily obtain a government-issued photo identification.¹¹ Because plaintiffs failed to meet their burden of production, the district court granted Indiana's motion for summary judgment, finding that "[the plaintiffs] had 'not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of [the Voter ID Law] or who will have his or her right to vote unduly burdened by its requirements.'"¹²

The case became somewhat more politicized when heard by the United States Court of Appeals for the Seventh Circuit.¹³ The Seventh Circuit affirmed the district court's ruling, stating that because no plaintiffs were claiming the requirements would prevent them from voting, an inference is drawn that "'the motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls.'"¹⁴ The plaintiffs then filed a petition for rehearing en banc, which was denied.¹⁵

Finally, the United States Supreme Court intervened and granted certiorari.¹⁶ In a 6-3 decision, the Court held that the interests of Indiana in requiring government-issued photo identification for in-person voting outweigh the burdens placed on voters by the photo identification requirement.¹⁷

Ill. Legal Background

A. Statutory Background

The Voter ID Law¹⁸ was passed in the 2005 Session of the Indiana General Assembly.¹⁹ Much of the Voter ID Law was drawn from the recommendations of the Report of the Commission on Federal Election Reform.²⁰ The Voter ID Law applies to all in-person voters and does not apply to persons voting by absentee ballot.²¹ Also, the photo identification requirement does not apply to persons living and voting in state-licensed facilities, such as nursing homes.²² Furthermore, a voter who has the proper photo identification but does not have it present at the polls may cast a provisional ballot, which will be counted upon that voter bringing a photo identification to the court clerk's office within ten days of the election.²³ This provisional ballot alternative also applies to voters who are indigent or have religious objections to being photographed, but these voters must sign an affidavit explaining why they do not have a photo identification card in lieu of presenting photo identifica- tion.²⁴

B. Historically Significant Caselaw

Election law jurisprudence, like much of the jurisprudence surrounding the Equal Protection Clause of the Fourteenth Amendment,²⁵ is rooted in the racially discriminatory voting requirements utilized by the states throughout much of the history of the United States. The landmark case of Harper v. Virginia State Board of Elections²⁶ was one of the first cases in which the United States Supreme Court invoked the Fourteenth Amendment's Equal Protection Clause to strike down a state voting restriction.²⁷

In Harper the Court addressed the constitutionality of a Virginia poll tax that required all eligible voters to pay to cast their ballots.²⁸ The Court initially recognized that the right to vote is subject to nondiscrimi-natory state restrictions.²⁹ It made clear, however, that state restrictions on suffrage had to bear some relation to the promotion of the intelligent use of the ballot.³⁰ The Court explicitly pointed out that the Fourteenth Amendment does not permit the affluence of the voter to be a factor in assessing the qualifications of the voter.³¹ Finally, the Court spoke to the applicable scrutiny level under which voting restrictions should be analyzed when it noted that "classifications which might invade or restrain [the right to vote] must be closely scrutinized and carefully confined."³²

The Court's "close scrutiny" analysis of election restrictions in Harper was later qualified by the Court in the case of Anderson v. Celebrezze.³³ Anderson involved a state elections statute that required independent candidates for president to file certain qualifying documents in March to appear on the November ballot.³⁴ The plaintiffs argued that the early filing deadline placed an unconstitutional burden on the independent candidate's supporters.³⁵

Justice Stevens began the majority opinion in Anderson by noting that important state regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.³⁶ Justice Stevens said that there was no "litmus-paper test" to determine the constitutionality of a state's voting restrictions.³⁷ Instead, the Court in Anderson set out a balancing test weighing the character and magnitude of the restrictions' effects on the plaintiff's First Amendment³⁸ and Fourteenth Amendment rights against the interests of the state in enacting the restric-tions.³⁹ The Court then stated that the proper "'inquiry is whether the challenged restriction unfairly or unnecessarily burdens the availability of political opportunity.'"⁴⁰ Thus, the Court modified the "close scrutiny" analysis for election restrictions to a more flexible balancing test, albeit a rather undefined one.

The next major attempt by the Court to define permissible state election restrictions and explain how the balancing test of Anderson would operate was in the case of Burdick v. Takushi.⁴¹ Burdick involved a state's statutory restriction on write-in voting that prevented a voter from writing in the name of a candidate who did not qualify to be placed on the ballot. The plaintiff argued that this ban on write-in votes violated his First Amendment right of expression.⁴²

In Burdick Justice White, writing for the majority, began his analysis of the write-in restriction by stating, "Petitioner proceeds from the erroneous assumption that a law that imposes any burden upon the right to vote must be subject to strict scrutiny."⁴³ Justice White noted that this notion was inconsistent with prior caselaw and that the right to vote in any manner was not absolute.⁴⁴ The Court reiterated language from the United States Constitution granting the states the inherent power to regulate their own elections.⁴⁵

The Court in Burdick noted that practical considerations prohibit a strict scrutiny analysis on all election law challenges.⁴⁶ The Court said that to have fair and honest elections, the election process must have some order, and therefore substantial state regulation ofthe process was necessary.⁴⁷ A strict scrutiny analysis on every election law challenge would work to prohibit a fair and equitable election process because it would place too heavy of a burden on the state trying to administer the process.⁴⁸ While Justice White recognized that the write-in restriction would necessarily impose a burden on individual voters,⁴⁹ he insisted that in this case, the state's interest outweighed these individual burdens.⁵⁰

The Court then defined a more flexible standard of review for election law challenges.⁵¹ The applicable test is the balancing test of Anderson.⁵² The Court in Burdick gave further guidance in how to apply the balancing test by defining how rigorously the balancing test was to be applied.⁵³ When the challenged state regulation places a heavy burden on Constitutional rights, the balancing test favors the voter, and the Court will require the restrictions to be "'narrowly drawn to advance a state interest of compelling importance.'"⁵⁴ However, in the case of "'reasonable, nondiscriminatory restrictions,'" the state restrictions will generally outweigh the burden on the voters.⁵⁵ Therefore, if the burden imposed by the state restriction is light, there is a presumption that the law is constitutional,⁵⁶ and the state will not have to justify the restriction with a compelling interest.⁵⁷

The dissent in Burdick provided an interesting take on the burden analysis used in election law challenges because the three dissenting Justices⁵⁸ viewed the burden in a different light than the Justices in the majority. Justice Kennedy, writing for the dissent, agreed with the majority that the balancing test from Anderson...