Today, in Crawford v. Marion County Election Board, the Supreme Court applied a relaxed standard of judicial scrutiny to Indiana's law requiring voters to show a government-issued form of identification. The plurality opinion of Justice Stevens (joined by CJ Roberts and Justice Kennedy) found the state's interests in modernizing its election system, preventing fraud, and inspiring confidence in the state's electoral machinery to be sufficient to defeat the plaintiffs' challenge to the law---even though the opinion acknowledged that the record contained "no evidence of" "in-person voter impersonation at polling places" "actually occurring in Indiana at any time in its history." Because the plaintiffs had not produced concrete numbers of otherwise-eligible Indianans who would be unable to vote as a result of the law, Justice Stevens said that the facial attack on the law must fail.
The political sub-text of the case was obvious. Indeed, it wasn't even sub-text. Justice Stevens acknowledged that in the Indiana legislature, Republicans unanimously voted for the law and Democrats unanimously opposed it. The same dynamic is at work around the country and especially in Florida, as reported today in the NY Times. It doesn't take any sophistication at all to recognize that Republicans favor (and Democrats oppose) imposing additional requirements for voting because people who will be screened out by these requirements are disproportionately members of constituencies that tend to vote Democratic. Of course Justice Stevens is right that, in theory, the government has solid reasons to want to modernize the electoral apparatus, limit opportunities for fraud, and inspire voter confidence. But in the face of the obvious fact that these laudable aims are being used for partisan advantage, shouldn't the burden be on the government to establish that they address actual problems in the real world?
That logic was the premise for the Supreme Court's application of "strict scrutiny" to pre-viability abortion regulations during the period between 1973 and 1992, when a plurality of the Court (since expanded to a majority) displaced this standard with a somewhat more forgiving test that looks more favorably on state abortion restrictions that seek to "inform" women's choices. The problem that Justice Blackmun foresaw in 1973 was that people who vigorously oppose abortion would use any legal means---such as 24-hour waiting periods---to frustrate the exercise of the right, so that strict scrutiny (or something like it) was needed to prevent pretextual regulation.
And likewise for voting. Indeed, the difference between the abortion and voting cases is that many people continue to think that the Court erred in recognizing a constitutional right to abortion, while almost nobody thinks the Court erred when, in the 1960s, it recognized a right to vote. (Some Democrats, including yours truly, grumbled about the Court's interpretation of this right in Bush v. Gore, but we didn't deny that it's important for the Court to protect the right to vote itself.) The Court's decision in Crawford will only invite more cynical efforts to "protect" the electoral process against wholly theoretical threats while effectively disenfranchising actual voters. In theory, Justice Stevens leaves open the possibility of more targeted relief based on more developed factual records, but don't bet on this happening in time for the November election.
Posted by Mike Dorf