Why Pennsylvania's Voter ID Law Is Unconstitutional

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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.

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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.

Simpson could have decided the case on state-constitutional law grounds -- the Pennsylvania Constitution provides that "[e]lections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." But, like too many state courts around the country, he does not bother to give that clause an independent meaning, instead taking his cue from the right wing of the Crawford Court.

To Americans, we often hear, the vote is a "privilege," not a right. That idea dates back to the early days of the Republic, when "democracy" was a swear word and the Constitution provided only that states could not restrict federal voting more strictly than voting in their own elections.

But since then, the Constitution has changed. Of all the textually guaranteed rights in the Constitution, "the right to vote" is mentioned most often -- indeed, beginning in 1868, it has been reaffirmed no fewer than five times, in § 2 of the Fourteenth Amendment, § 1 of the Fifteenth Amendment, the Nineteenth Amendment, § 1 of the Twenty-Fourth Amendment, and § 1 of the Twenty-Sixth Amendment. (Look it up.)

It's true that none of these provisions says, "Every citizen has a fundamental right to vote, and we ain't playing with you when we say that." Instead, they protect against specific grounds of abridgment. But no other right in the Constitution is spelled out that way either. Freedom of speech, freedom of the press, the "right to keep and bear arms" -- these rights are also, in the same kind of language, assumed to exist and protected against state abridgment.

A modern democracy isn't worthy of the name unless it protects universal suffrage. That doesn't mean the state can't regulate voting -- by requiring some forms of ID, for example. It simply means that when the state wants to make it harder to vote, it has to do exactly what it must do when it wants to make it harder to speak: show a very good, factual, neutral, not imaginary reason for doing so.

Despite the current fever for voter-ID laws, no state has managed to do that. Proponents warn darkly of terrorists and illegal aliens overwhelming the polls, but when asked to show proof, they can't.

Pamela Karlan of Stanford Law School, one of the nation's leading voting-rights litigators, reminded a Washington audience a few years ago of Justice Louis D. Brandeis's famous warning against fear. "Men feared witches and burnt women," Brandeis said in a famous dissent. After Crawford, among the first Indiana voters turned away from the polls was a group of nuns in their 80s and 90s.

"We fear terrorists and disfranchise nuns," Karlan said.

I grew up in a time and place where the "privilege" theory permitted my home state to impose poll taxes and literacy tests. As a result, an electoral winner sometimes had the support of as few as 10 percent of eligible voters.

Those restrictions were wrong because they had a racial motive, but they were also wrong because they were undemocratic.

Powerful forces today would like to carry us back to the time when the government doled out ballots to those it approved of. It will be an ill-omened voyage.

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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, and is the author of American Epic: Reading the U.S. Constitution.

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