Inventing the "Right to Vote" in Crawford V. Marion County Election Board

Article excerpt

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. …