Academic journal article Harvard Law Review

Constitutional Law - Voting Rights - Seventh Circuit Upholds Voter ID Statute

Academic journal article Harvard Law Review

Constitutional Law - Voting Rights - Seventh Circuit Upholds Voter ID Statute

Article excerpt

CONSTITUTIONAL LAW--VOTING RIGHTS--SEVENTH CIRCUIT UPHOLDS VOTER ID STATUTE.--Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007), reh'g and suggestion for reh'g en banc denied, Nos. 06-2218, 06-2317, 2007 WL 1017015 (7th Cir. Apr. 5, 2007).

Having long observed that "[n]o bright line separates permissible election-related regulation from unconstitutional infringements," (1) courts regularly struggle to balance legitimate state interests in regulating elections against the rights of voters and candidates. In doing so, they often engage in intractable empirical debates over facts that are hard to ascertain. Recently, in Crawford v. Marion County Election Board, (2) the Seventh Circuit engaged in such a debate, relying on empirical speculation to uphold a state law requiring voters to present photo identification. (3) However, rather than speculating about voter fraud and exclusion, courts reviewing voter ID laws that do not impose severe burdens on voters should uphold such laws unless they appear to have been passed by legislatures motivated by self-entrenchment. When signs of entrenchment are present, courts should uphold voter ID laws only if the legislature can provide concrete evidence demonstrating the need for such regulations.

Until July 2005, Indiana voters seeking to vote in person were required to sign a polling book for the purposes of signature matching but were not otherwise required to present any form of identification. (4) In 2005, the Indiana General Assembly enacted Senate Enrolled Act No. 483, (5) which requires that voters in either a primary or a general election present a government-issued photo ID. (6) The Act passed on a straight party-line vote. (7) The Indiana Democratic Party brought a constitutional challenge in federal district court, alleging, among other things, that the law unconstitutionally burdened the right to vote. (8)

The district court granted summary judgment for the defendants. (9) Relying on Supreme Court precedent, the court reasoned that regulations that do not impose "severe burdens" on voters are subject to only minimal judicial scrutiny. (10) The court found that the law did not impose severe burdens (11) and therefore sought to determine whether the burdens were "reasonable" given the interest in preventing voter fraud. (12) The court reasoned that "the balance between discouraging fraud and other abuses and encouraging turnout is quintessentially a legislative judgment with which we judges should not interfere unless strongly convinced that the legislative judgment is grossly awry." (13)

A divided panel of the Seventh Circuit affirmed. (14) Writing for the majority, Judge Posner (15) began by determining that the voter ID law should not be subjected to strict scrutiny. He acknowledged that the law would discourage some people from voting, particularly Democrats. (16) Nevertheless, he focused on the fact that there was "not a single plaintiff" who would be so discouraged. (17) Moreover, Judge Posner emphasized that "it is exceedingly difficult to maneuver in today's America without a photo ID" and that therefore "the vast majority of adults have such identification." (18) He added that people who abstain from voting because of the photo ID requirement may do so because of "very slight costs in time or bother" rather than any significant burden on voters. (19) He further argued that strict scrutiny would be "especially inappropriate" because "the right to vote is on both sides of the ledger" (20): balanced against the burden on voters is the benefit of preventing fraud that "impairs the right of ... voters to vote by diluting their votes." (21)

Turning to the interest in preventing voter fraud, Judge Posner found that there was a sufficient need for the voter ID law. He discounted the complete absence of prosecutions for voter fraud in Indiana, arguing that it was explained by "endemic under enforcement of minor criminal laws . …

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