“The Impermissibility of Sex as a Voter Qualification”

Looks like a fascinating paper posted on SSRN today by UVa 3L Holl Chaisson:

Election officials across the country are turning away voters when they perceive a mismatch between the sex listed on the voter’s identification and the voter’s gender presentation. The problem is particularly acute for transgender and gender-nonconforming voters. This Note presents a 50-state survey of voter ID laws and shows that there is no legal basis for using a mismatch or perceived mismatch between a voter’s documented sex and their gender presentation to deny the franchise. No language in any state statute indicates that an individual’s sex is required as necessary evidence of their identity. Furthermore, this Note argues that changing the statutes to require sex as an identity qualifier would violate the Equal Protection Clause of the Fourteenth Amendment in at least two ways: (1) such a requirement would amount to sex discrimination as that term is best understood in light of Bostock v. Clayton County, Georgia; and (2) under the Supreme Court’s voting rights jurisprudence, such a requirement would constitute an invidious restriction on the right to vote, triggering strict scrutiny under Harper v. Virginia State Board of Elections, and even if it did not amount to such, would still be struck down under the sliding scale scrutiny of Anderson-Burdick. Hinging the right to vote on the verification of one’s sex is almost certainly unconstitutional.

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