Voter ID and the floundering right to vote

Yesterday, Slate contributor Dalia Lithwick pointed out that available data used to prognosticate the likely outcomes of new voter ID laws is outdated, and that it is no more clear that Democratic women will be disenfranchised than Republican women. Lithwick's focus on the effect of voter ID laws is necessary, but the problem with voter ID is judicial rather than legislative. The problem isn't whether voter ID laws will disenfranchise Democratic or Republican voters. The problem is that the laws disenfranchise voters. Period.

Voter ID laws have grown in popularity since the Supreme Court's decision in Crawford v. Marion County. In that case, the Court balanced the justification for the Indiana voter ID law against the burden on the right to vote. Liberal and conservative justices united to limit the right to vote, holding that the burden placed on that right was effectively de minimis and that states had a super important interest in preventing fraud (a decision which has been the subject of new interest following J. Posner's recent guilty plea regarding his part in validating the law as the author of the Court of Appeals' opinion).

But, the decision placed the burden of proof on the wrong party--the people. States should always have the burden of showing that regulations that infringe on even a small number of voters actually addresses a real threat or need. Otherwise, how "fundamental" is the right to vote, really? Under this standard, politicians need virtually no reason to manipulate the electorate to their advantage. Any regulation that has as its goal the "purity of the ballot box" is valid. Indeed, fraud becomes the catchall justification for infringing on the individual right to vote.

More robust protection for the right to vote is needed. A simple step would be to require strict scrutiny for all laws aimed at the rights of voters to cast ballots (which could easily be achieved by recognizing the right to vote as First Amendment political speech). This change would not affect states' ability to create laws addressing election issues, it would just prevent them from creating those issues to justify those laws.