October 18, 2008
Colorado's Check-Off Box and Voting Rights
The NYT reported yesterday that about 6,400 new Colorado voters may barred from voting, because they failed to check a box on the Colorado voter registration form. (The Denver Post article is here; the Colorado Independent reports here.)
The Colorado registration form requires new applicants to provide a driver's license number or Department of Revenue ID number, or the last four digits of their Social Security Number, pursuant to the federal Help America Vote Act. But the Secretary of State is rejecting applicants who provide their SSN, but fail to check a box that states that they do not have a driver's license number or Department of Revenue ID number. Take a look at the Colorado voter registration form here.
A group of advocacy organizations wrote the secretary or state, outlining the problems and alleging violations of federal law.
But is there also a federal constitutional violation here? The Court last term in Crawford v. Marion County Election Board, the Indiana voter i.d. case, seemed to set the bar higher for facial challenges under the Fourteenth Amendment Equal Protection Clause (fundamental rights, and Harper v. Virginia Board of Elections) based on generally applicable and rational restrictions on the right to vote. The Crawford Court ruled that Indiana's interest in preventing voter fraud was good reason enough to justify the hassle factor in the i.d. law.
Here, in contrast, there seems to be no good reason to reject applicants because they failed to check a box. The box isn't required by federal law, and it seems to do nothing to protect against voter fraud. Moreover, a reasonable reading of an application that includes only the SSN (and not the driver's license number or the Revenue ID, and fails to check the box) is that the applicant doesn't have a drivers license of Revenue ID. In other words: The box appears to serve no purpose. If this is right, and notwithstanding any violation of federal law, does this also violate the constitution, even under Crawford?
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