The Right, the Test, and the Vote: Evaluating the Reasoning Employed in Crawford v. Marion County Election Board

AuthorKelly E. Brilleaux
Pages1023-1060

The author wishes to thank Professor John Devlin for his insight in drafting this Note. The author is also thankful to her mother, Shirley Brilleaux, for her unconditional love and support.

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"It is beyond cavil that voting is of the most fundamental significance under our constitutional structure."1

I Introduction

Justice yBron White's words from Burdick v. Takushi make a powerful statement about the importance of the right to vote in our unique democracy. However, several state legislatures have recently implemented increasingly restrictive regulations on this right. Perhaps the most restrictive of such regulations are those that require citizens voting in person to present government-issued photo identification.2 In 2005, the Indiana legislature passed Senate Enrolled Act No. 483 ("SEA 483"), resulting in the most significant nationwide impact of any recent election regulation.3Following its enactment, various plaintiffs brought two separate suits in an effort to have SEA 483 declared invalid.4 These two cases were later consolidated into a single case-Crawford v. Marion County Election Board.5 On review, the United States Supreme Court upheld SEA 483 as constitutional.6 However, the constitutionality of voter identification statutes such as SEA 483 must also be examined in light of the tests that have traditionally been applied in cases involving elections and the right to vote. This Note examines the significance of Crawford and argues that the plurality should have applied a heightened scrutiny analysis, as set forth in Harper v. Virginia Board of Elections,7 instead of the balancing test from Anderson v. Celebrezze.8 Part II explores the fundamental nature of the right to vote and the legal precedent regarding elections and voting. Part III discusses each opinion set Page 1024 forth in the Crawford decision. Part IV analyzes the reasoning employed by the Supreme Court and proposes that a heightened scrutiny test be used in its place. It also addresses the possibility of a "severe burden" requirement in order for the Court to apply heightened scrutiny in election cases. This Note concludes that the Court erred in its use of the Anderson test in Crawford and that the statute would have been held unconstitutional if the Court had instead applied heightened scrutiny. The Note also concludes that the imposition of a severe burden requirement for heightened scrutiny would be inappropriate for a number of reasons.

II Historical Background

The significant history and development of the right to vote are established within the United States Constitution and Supreme Court jurisprudence. While the Constitution implies the existence of the right to vote, jurisprudence-especially throughout the past fifty years-has developed the standards of review applicable to the right.

A The Right to Vote in the Constitution

While there are constitutional amendments that regulate the right to vote, the precise nature of the right must be determined primarily from the structure of the Constitution itself.9 Article I, Section 2 of the Constitution provides that "[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."10 Additionally, Article II, Section 1 delegates to the states the power to establish the method of selecting electors during a presidential election.11While it appears that the Constitution initially conferred matters Page 1025 relating to the franchise of voting upon the states,12 changes began to occur with the passing of constitutional amendments regarding states' rights and the right to vote.13

In 1868, the nation adopted the Fourteenth Amendment to the Constitution.14 The Fourteenth Amendment guarantees constitutionally protected rights to all citizens and restricts the states from any action that would deprive citizens of those rights.15In the context of voting, the Equal Protection Clause of the Fourteenth Amendment has been interpreted to protect United States citizens' right to vote.16 The Fifteenth Amendment to the Constitution was adopted in 1870 and states that "[t]he rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."17 Consequently, the Fifteenth Amendment effectively established a federal interest in an area that had traditionally been conferred upon the states.18 The Constitution's indirect approach to addressing voting rights has allowed the judiciary to interpret this constitutional basis and provide a more thorough explanation as to the nature and application of this right.

B Jurisprudential Standards Regarding the Right to Vote

The ambiguity surrounding the constitutional source of voting rights gave rise to the need for Supreme Court decisions Page 1026 interpreting the nature of the right to vote. However, it was necessary not only for the Court to determine whether the right was fundamental, but also to delineate the applicable standards of scrutiny that should be used when determining the constitutionality of statutes that burden the right to vote.19

Fundamental rights are generally entitled to a high level of judicial scrutiny because of the traditional importance with which society regards their value.20 Yet, there is currently some debate concerning both the source and nature of fundamental rights. Many theories exist regarding the source of rights that are not expressly provided for in the Constitution-also called unenumerated rights-that have resulted in great difficulty when trying to ascertain "one unifying principle for assessing the fundamentality of rights."21 In determining which rights are fundamental in nature, Justice Cardozo proposed that a right is fundamental "when infringement upon the alleged right would 'offend some principle of justice so rooted in the traditions and conscience of our people.'"22

Modern jurisprudence has established that both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment protect fundamental rights.23 The Equal Protection Clause typically applies to discrete and insular minorities; however, it also offers heightened protection for fundamental rights.24 Because of this, the doctrines of equal protection and Page 1027 substantive due process may overlap when dealing with fundamental rights.25 When analyzing regulations that infringe upon rights protected by the Due Process Clause26 and fundamental rights in an equal protection context,27 the Court often applies a "strict" or "heightened" level of scrutiny.28 Under the strict scrutiny analysis, courts make a two-part inquiry.29 First, a court must ask whether there is a compelling government interest that supports the challenged regulation.30 Second, the court must determine whether the regulation is sufficiently narrowly tailored to serve this compelling interest.31 This approach also requires a court to "assess the relative 'weights' or dignities of the contending interests . . . ."32

Although the Supreme Court had engaged in some discussion of voting rights in its early decisions,33 the Court did not Page 1028 affirmatively address the constitutional protection of the right to vote until the 1940s.34 In United States v. Classic,35 the issue presented itself in the context of criminal allegations of voter fraud in a federal election.36 The Court framed the constitutional issue as "whether the right of qualified voters to vote in the Louisiana primary and to have their ballots counted is a right 'secured by the Constitution . . . .'"37 The Classic Court held that federal primary elections fall within the reach of the constitutional provision and are thus subject to congressional regulation.38 Observing the text of Article I, Section 2, which provides that congressional representatives are to be chosen by the people of the states by electors, the Court reasoned that "[t]he right of the people to choose, whatever its appropriate constitutional limitations[,] . . . is a right established and guaranteed by the Constitution and hence is one secured by it to those citizens and inhabitants of the state entitled to exercise the right."39

The conisttutional protection of the right to vote in federal elections was upheld in Reynolds v. Sims, in which the Court held that, under the Equal Protection Clause, both houses of a bicameral legislature have to be apportioned on the basis of population.40 In its equal protection analysis, the Court focused on whether the record displayed any discrimination that impermissibly interfered with the plaintiffs' constitutionally protected right to vote.41 The Court stated:

Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is Page 1029 preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must...

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