How the United States Supreme Court Diminished Constitutional Protections of the Right to Vote and What Congress Can Do About It

Abstract

Under the United States Constitution, States determine who is allowed to vote in federal and state elections. Historically, the right to vote has been steeped in discrimination. For most of United States history, African Americans, Asian Americans, Native Americans and women have been denied the right to vote. Due to this history of discrimination and because of the importance of the right to vote in a republican democracy, the United States Supreme Court held in the 1960’s and 1970’s that new State restrictions on the right to vote are subject to strict scrutiny review under the equal protection clause of the Fourteenth Amendment. However, in the Supreme Court’s decision in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), a majority of justices applied a balancing test in an equal protection challenge to Indiana’s new requirement that registered voters must present a government-issued photo identification before being allowed to vote. None of the justices in Crawford explained why strict scrutiny review of the new Indiana voting restriction was abandoned in favor of a balancing test review. The balancing test review constituted a much more deferential review of Indiana’s new voting restriction than strict scrutiny review and thereby significantly diminished constitutional protection of the right to vote. The purpose of this article is to describe the historical development of constitutional protections of the right to vote and to explain how the Supreme Court diminished that protection in Crawford. After Crawford, lower federal courts have held that new voter identification requirements that were imposed in several States violated the constitutional rights of certain registered voters. As a result of this unconstitutional pattern of using new voter identification requirements to violate the constitutional rights of some voters, Congress has the authority under the Fourteenth and Fifteenth Amendments to enact legislation that is designed to prevent or remedy unconstitutional restrictions on the right to vote that result from voter identification requirements.