“The Court and States in the Age of Voter ID”

Bob Bauer:

So this is the question being debated about the Court opinion in the Arizona voting law pre-emption case: is it a major victory for the federal government, or just a win in this case, with the longer term effects to lie more on the side of the states’ authority to shape voting rights in federal elections? Forecasts range from sunny (The New York Times) to cloudy (Hasen) to stormy (Lederman)…

Otherwise Arizona does well. It is encouraged to seek other means of appending a documentation requirement to the Federal Form, and the Justice believes that in the circumstances, it may have available to it a constitutional remedy. And though by no means a requirement of deciding the case, he musters a clear majority for the proposition that states have control over voter qualifications. Perhaps this is the better view, but the Court seems in quite the rush to decide it.

There is much argument still to occur over this case, in law reviews and elsewhere, but when the doctrinal fine points have been fully explored, it will remain the case that the Arizona decision is hard to think about without reference to the contemporary struggles over voting rights. In Crawford, Justice Souter counseled close attention to “the lessons of history” in judging the weight to be assigned to states’ asserted interests, such as “the interest in combating voter fraud [that] has too often served as a cover for unnecessarily restrictive electoral rules.” Crawford, 553 U.S. at 230, n.32 (Souter, J.. dissenting). In the age of voter ID and other state-imposed burden on the right to vote, the Court seems to discount or disregard that history. Critics are concerned that it is a history in the process of repeating itself.


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