Inventing the "right to vote" in Crawford v. Marion County Election Board.

• Author: Basile, Thomas

Although it has become almost axiomatic that the franchise is a "fundamental right" (1) possessed by all Americans, it remains very much open to question whether the Constitution was ever intended to bestow the broad-based right envisioned by the Supreme Court. Those wary of judicial imposition of normative convictions under the guise of pronouncing the law (2) indeed have ample reason to question the Court's relatively recent discovery of this right in the Equal Protection Clause of the Fourteenth Amendment. Although the Court's latest examination of the scope of the right to vote in Crawford v. Marion County Election Board (3) represents a sensible exercise of judicial restraint in response to states' efforts to combat and deter voter fraud, its reasoning exposes the potential for arbitrariness and activism inherent in the Court's current voting rights jurisprudence.

The Crawford Court addressed a facial constitutional challenge to an Indiana statute known as "SEA 483," (4) which requires individuals voting in person to present a government-issued photo identification at the polling place. (5) The law does not apply to absentee votes cast by mail or to voters living in state-licensed facilities, such as nursing homes. (6) In addition, those lacking the required identification are entitled to cast a provisional ballot, which is counted if the voter produces such identification at the circuit court clerk's office within ten days. (7) The statute also contains exemptions for indigent persons as well as for those who hold a religious objection to being photographed. (8) Voters obtaining the photo identification for the first time are responsible for any costs incurred in gathering the necessary preliminary documentation (usually a birth certificate or a U.S. passport); (9) the photo identification itself, however, is available free of charge at branches of the state's Bureau of Motor Vehicles. (10)

Two lawsuits challenging SEA 483's constitutionality were soon filed by the local Democratic Party, elected officials, and several nonprofit organizations representing various groups of voters. The plaintiffs in the consolidated case argued that the law constituted an impermissible burden on their right to vote under the Equal Protection Clause of the Fourteenth Amendment. (11) In response, Indiana contended that any incidental burden the statute imposed on the franchise was outweighed by the state's interests in preventing and detecting voter fraud as well as the related need to preserve public confidence in the integrity of the election system. (12)

The United States District Court for the Southern District of Indiana held the statute constitutional, noting that the means employed by Indiana in advancing its valid interest in eliminating voter fraud placed only a relatively mild burden on voting rights. (13) The Seventh Circuit affirmed the district court's decision in an opinion authored by Judge Posner. Although acknowledging that some voters may "disenfranchise themselves" (14) by declining to endure the mildly cumbersome process of acquiring a photo ID, the court concluded that the overall burden the statute imposed on the right to vote was not severe and not even significantly greater than the countless other costs intrinsic to the voting process. (15) The court also emphasized the crucial distinction between the incidental fees involved in obtaining a photo identification under the Indiana statutory scheme and a poll tax proscribed by the Supreme Court. (16) The dissenting member of the three-judge panel strongly criticized SEA 483 as "a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic" (17) and asserted that the court was obligated to strike down the law under a "strict scrutiny light" standard. (18)

The Supreme Court granted certiorari and affirmed. (19) Writing for the plurality, Justice Stevens undertook what was effectively a two-step analysis of SEA 483's constitutionality. First, the plurality determined that because the burden created by the regulation was not "severe," it would eschew strict scrutiny in favor of the balancing approach formulated in Anderson v. Celebrezze. (20) Largely agreeing with Judge Posner's analysis, the plurality reasoned that the "inconvenience" entailed in acquiring a photo identification--for example, gathering the necessary documentation and traveling to a local BMV branch--did not constitute "a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting." (21) In addition, the ability of voters lacking the needed identification to cast provisional ballots also "mitigated" the burden. (22) The plurality hence concluded that SEA 483 is a "reasonable, non-discriminatory restriction[]" (23) subject to the more lenient demands of the Anderson balancing test rather than the rigors of strict scrutiny. (24) Although expressing agreement with the petitioners' contention that the law places a particularly acute onus on certain groups (for example, the poor and elderly), the plurality reasoned "it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified." (25) Accordingly, the plurality refused to undertake a separate constitutional analysis focused solely on these subsets of voters. The plurality did add, however, that its examination of SEA 483's burdens centered not on the electorate as a whole but rather only on voters who lacked the identification required by the statute. (26)

The plurality then proceeded to evaluate the gravity of the competing interests at stake through the lens of the Anderson test. As interpreted by the Crawford plurality, Anderson demanded that courts considering constitutional challenges to non-invidious (27) regulations placing non-severe restrictions on the franchise "weigh the asserted injury to the right to vote against the 'precise interests put forward by the State as justifications for the burden imposed by its rule.'" (28) Deeming Indiana's concern with deterring and detecting voter fraud to be a valid state interest, (29) the plurality concluded that the state's statutory scheme constituted a permissible means of ameliorating the problem of fraud. (30) While acknowledging that the record lacked any evidence of actual in-person voter fraud in Indiana, the plurality suggested that "flagrant examples" of such activity in other parts of the country as well as fraud relating to absentee voting in a recent Indiana Democratic primary provided sufficient bases for the state's concerns. (31) The plurality also accepted Indiana's argument that safeguarding voter confidence is a legitimate state interest advanced by the identification requirement. (32) The plurality determined that the gravity of the state's regulatory interest outweighed the comparatively mild burden on affected individuals. (33) Finally, the plurality emphasized that the state provided the photo IDs free of charge; but for this feature, SEA 483 would amount to an impermissible poll tax. (34)

Justice Scalia concurred in the judgment, joined by Justice Thomas and Justice Alito, but expressed two points of disagreement with the plurality's reasoning. (35) First, although he agreed that the burden SEA 483 imposed on voting rights was not "severe," Justice Scalia argued that the appropriate test was supplied not by Anderson, but rather by the Court's decision in Burdick v. Takushi. (36) According to Justice Scalia, Burdick sought to distill the "amorphous" principle articulated in Anderson into a concrete and workable standard, namely, that non-severe, (37) nondiscriminatory restrictions on the right to vote should generally be upheld so long as the burden is outweighed by the state's "important regulatory interests." (38) Second, Justice Scalia criticized the plurality's focus on the burdens placed only on those voters particularly affected by the law rather than evaluating SEA 483's overall impact on "voters generally." (39) According to Justice Scalia, the plurality's more individualized approach marked an unmistakable divergence from precedent and portended judicial micromanagement of voting procedures, in clear contravention of the States' Article I, Section 4 prerogatives. (40) Under the Burdick framework, Justice Scalia contended, courts are obligated to defer to states" judgments on the regulation of elections unless the law at issue "imposes a severe and unjustified overall burden upon the right to vote or is intended to disadvantage a particular class." (41)

Justice Souter dissented, joined by Justice Ginsburg. (42) Al-though maintaining that Burdick's "sliding scale balancing analysis" (43) provided the controlling standard, Justice Souter indicated the need for "a rigorous assessment" (44) of Indiana's proffered rationales in light of what he viewed to be the "serious" (albeit not "severe") (45) nature of the burdens imposed by SEA 483. Implicitly disagreeing with Justice Scalia's contention that Burdick prescribes a singular focus on the law's overall impact on all voters, Justice Souter argued that it is indeed constitutionally relevant if a statute's incidental effect is to impose particularly cumbersome burdens on certain classes of individuals even though the average voter would regard the law's requirements as mere inconveniences. (46) Emphasizing the costs entailed in traveling to relatively scarce BMV locations and in obtaining the necessary preliminary documentation, Justice Souter asserted that "in the Burdick analysis it matters that both the travel costs and the fees are disproportionately heavy for, and thus disproportionately likely to deter, the poor, the old, and the immobile." (47) Justice Souter concluded that the state's purported interests could not withstand the "rigorous assessment" necessary in light of SEA 483's heavy...