Moreover, and maybe most important, the experience with softening and its limits will contribute to a record on which more expansive judicial relief can be sought. Softening is an inevitable step for courts reluctant to challenge state prerogatives in structuring their elections, including protecting against fraud, but increasingly alert to the proliferation of new burdens imposed on voters. Judges have to contend with problems like the Supreme Court’s misconceived opinion on ID in Crawford. They are working around the problem, for the moment, with “softening.” But with time and experience, the limits of those measures in alleviating major burdens on voters are coming clearly into review. The developing record of this inadequacy will strengthen the hand of voting rights advocates in pushing the courts—and the law–toward more comprehensive relief.
Courts moving in this direction will have the benefit of fresh thinking about state-imposed voting burdens, such as Sam Issacharoff’s “emerging rule of reason” and a“balancing test” proposed to similar effect by Rick Hasen. Each of them calls for dispensing with a complex and largely futile inquiry into motive and asking fundamental questions abut the adequacy of a State’s justification for burdening voting rights. The experience of recent years suggests that these justifications have been weak, and the lessons learned from contemporary voting rights struggles will eventually lead the courts to attack these restrictions more frontally and decisively, not just at the margins and only “softly.”