Why Pennsylvania's Voter ID Law Is Unconstitutional

In upholding a law that could disenfranchise 9 percent of the state's population, Judge Simpson breaks new ground in belittling a fundamental American right.


A polling station in Pennsylvania during the 2008 presidential primary. (Reuters)

In time, Crawford v. Marion County Election Board may come to rank with Bush v. Gore as among the worst recent decisions by the Supreme Court. That case has made possible the ongoing campaign to gut the right to vote.

Crawford is directly responsible for Wednesday's decision by Pennsylvania state judge Robert Simpson to allow that state's strict voter ID law to take effect. That law is all but certain to cause chaos at some polling places this fall. It may also, according to some credible estimates, disfranchise as many as 9 percent of the state's eligible voters. There's little secret about the purpose of the bill. As the state's Republican House Majority Leader, Mike Turzai, told a partisan audience in June, it "is gonna allow Governor Romney to win the state of Pennsylvania."

A state can't abridge important rights just because it feels like it.

None of these outcomes is certain, but what does seem certain is that some eligible voters in Pennysylvania will be unable to vote under the new rules. And all sides concede that there is no demonstrable need for the stricter ID rules. The bill's Republican sponsors originally raised the specter of voter fraud, but at trial the state conceded that there were no recorded reports of investigations into or prosecutions for voter impersonation on record anywhere in the state. Instead, the state argued that the law "improves the security and integrity of elections" because many other activities require government-issued ID as well.

This rationale is in essence empty. The government wants to impose a strict voter ID requirement because, well, it wants to. It's tidier. In some contexts where we require ID, such a justification is really fine. For example, requiring extensive documentation to obtain a cab driver's license is probably okay, even if there's no evidence of fraudulent cab-driving. That's because the right to a cab license isn't what constitutional lawyers call "fundamental."

But a state can't abridge important rights just because it feels like it. If the right to vote is important, then the state's justification is as sinister as if it decided to cut back on free speech because bureaucrats prefer the quiet.

The key issue in voting-rights cases is what "standard of scrutiny" the Constitution requires for burdens on the right to vote -- that is, new rules that make it harder to cast a ballot without entirely banning any individual or group from voting.  If the right to vote is fundamental, then the standard should be "strict scrutiny"; that means the government must show a very important reason before it is allowed to burden the right. "Security and integrity" might meet that test -- but only if they face an actual threat. The state would have to produce evidence that fraud is actually likely to be a serious problem.

But Judge Simpson in his opinion claims that the Supreme Court's standard is a "deferential" one. Here he tips his ideological hand, because this standard is not law, but rather a creation of the Court's three hardest right-wingers. Though proposed in a concurrence by Justice Scalia, the "deferential" standard was explicitly rejected in Justice Stevens's three-judge opinion announcing the judgment.  Under Judge Simpson's extremist reading, however, no matter how strict the government regulation, challengers must prove that someone is certain to be disfranchised -- an almost impossible standard to meet.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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