Chris Elmendorf has posted Undue Burdens on Voter Participation (Is the Right to Vote Like the Right to an Abortion?) on SSRN (forthcoming, Hastings Constitutional Law Quarterly). Here is the abstract:

During October Term 2007, the Supreme Court will hear its first case in more than thirty years in which the plaintiffs maintain that the state has unconstitutionally hindered eligible voters’ access to the polls. The case, Crawford v. Marion County Election Board, presents a facial challenge to Indiana’s recently enacted photo ID requirement for voting. Relying in part on the Court’s recent abortion jurisprudence, the U.S. Solicitor General has filed an amicus brief arguing that the Court should reject the Crawford plaintiffs’ facial claim while inviting future as-applied challenges by individual voters or precisely defined classes of voters for whom the ID requirement may operate as a severe impediment to voting. This essay argues the SG’s abortion/as-applied model for voter participation claims is a Siren’s song: enormously appealing and, if followed, sure to lead the federal courts to a place they will no doubt regret: mired in a bog of politically fraught questions about the details of the voting process, and bereft of manageable rules for decision. The best hope for avoiding the bog, I argue, is to treat the right to vote as a right whose doctrinal content derives from the citizenry’s collective interest in being governed by representatives who are accountable to the people, pursuant to Article I and the Seventeenth Amendment. But this will require abandoning the nominal status of the right to vote as right that is merely or primarily individual and personal in nature.

Chris filed this amicus brief in the Crawford case. On page 40 of his draft, he writes: “Like the Court, I am of two minds about this standard, but increasingly I think the position I took as an amicus was incorrect, and that the Court should hold that the default standard of review is plain vanilla rational basis (unless, per the above, there is a practicable way of tying judicial reasonableness determinations to the collective judgment of another entity, such as a Foleyeque shadow court). I make this suggestion not because I believe it the fairest reading of the relevant precedents, or because it is the best standard for an ideally impartial judge to apply, but on account of the apparent pattern of judicial partisanship in voter participation cases.”
I look forward to reading this draft soon.