“What Are the Usual Burdens of Voting?”

Jim Fischer has posted this draft on SSRN (Georgia State U. L. Rev.) Here is the abstract:

When the Court in Crawford v. Marion County Election Board approved presentment of a government-issued photo identification asa requirement to vote, Justice Stevens compared the requirement to what he characterized as “the usual burdens of voting.” SinceCrawford was decided, the concept of “the usual burdens of voting”has been invoked numerous times as lawsuits have been brought challenging state practices that are claimed to unduly burden the ability of voters to vote.
In theory, “the usual burdens of voting” serve as a benchmark against which state conditions imposed on the ability to vote can be measured to determine if the right to vote has been infringed. Yet, despite numerous uses of the phrase, courts have generally left the phrase undefined. In essence, a benchmark exists, but the content, design, and dimensions of that benchmark are amorphous.
This Article examines the development of the “usual burdens of voting” concept by Justice Stevens in Crawford and its use in subsequent decisions. This Article looks at the evolution of voting in the United States to provide some context as to how voting burdens should be understood. This Article concludes with some observations regarding the usefulness of the phrase as a means for determining whether a condition associated with voting, such as a prohibition on providing food or water to those waiting to vote, can be reliably evaluated using “the usual burdens of voting” concept.

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