The Supreme Court heard oral arguments yesterday in Crawford v. Marion County Election Board, involving an Indiana law requiring the presentation of government-issued IDs to vote. It is virtually certain that the Alito-fied Court will reject the challenge to the law. A couple points:

  • As public policy, the law is an extremely bad one, burdening the most disadvantaged members of society in order to "solve" an essentially non-existent problem. (I wouldn't necessarily have an objection to a mandatory ID law in the context of a vote regime that created a strong affirmative duty on the part of the state to ensure that voters were registered, but needless to say that's not the case with the Indiana law.  This kind of legislation is about vote suppression, period.) The Constitutional issue is a little trickier because -- amazing as it seems -- the Constitution does not contain an explicit right to vote per se (although once states elect to give the vote, they cannot discriminate in terms of race or impose a poll tax.)  As you may remember, though, in addition to some precedents suggesting that the right to vote is implicitly fundamental, the Supreme Court in 2000 discovered a very broad equal protection right to have one's ballot counted by uniform standards -- even if they were cast by different voting systems in every county. Needless to say, the Court's conservatives seem to be back to a much narrower reading of the equal protection clause, although in this case there's an actual class of voters being disenfranchised, reminding us once again that Bush v. Gore is not in any meaningful sense "constitutional law" at all. 
  • As both Dahlia Lithwick and Bean point out, the most likely disposition of the case is to rule that a "facial challenge" -- that is, seeking to prevent a patently unconstitutional law from being enforced before the fact -- cannot be brought to this kind of legislation. Rather, indigent voters would have to wait until they've been disenfranchised (although the state can burden their rights in order to address a non-existent problem) before filing a lengthy and expensive lawsuit after the results of the election have already been entrenched. This doesn't make any sense unless you just don't care about poor voters being disenfranchised, so you can see why it's so appealing to the Court's conservatives. Trying to do away with facial challenges irrespective of how illogical the result would be is likely to be a major weapon of the Roberts Court -- this could also be used to gut constitutional protections of reproductive freedom, for example.

--Scott Lemieux

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