“Not that long ago, the Supreme Court would have struck down laws that target trumped-up allegations of voter fraud,” reads a subhead in Ian Millhiser’s Vox column on how the Supreme Court enabled the undermining of voting rights:
Though the right to vote is the essential building block of any democracy, not all laws that make it more difficult to vote are unconstitutional. As the Supreme Court recognized in Storer v. Brown (1974), “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.”
States may legitimately require voters to cast their ballots at a particular location, and it may require these voters to do so by a particular time and date. They may impose reasonable restrictions on who may qualify as a candidate whose name appears on the ballot. And states may require voters to use a standardized ballot rather than, say, simply writing a bunch of names on a blank sheet of paper and dropping it off at a polling place.
Yet while many election rules are permissible even if they prevent some small cohort of voters from casting a ballot, the Supreme Court as recently as 13 years ago forbade states from enacting laws that serve no purpose other than to restrict the franchise. As the Court held in Anderson v. Celebrezze (1983), when confronted with a law that makes it harder to vote, federal courts must weigh “the character and magnitude of the asserted injury” to the right to vote against “the precise interests put forward by the State as justifications for the burden imposed by its rule.”
Laws that imposed minimal burdens on the right to vote, while serving legitimate state interests, were typically upheld. But laws that burdened the right to vote without achieving any other real purpose would be struck down under the Anderson framework.
Anderson is technically still good law. But the Supreme Court watered down Anderson’s balancing test so severely in Crawford v. Marion County Election Board (2008) that it’s unclear whether Anderson still provides any meaningful safeguard against laws enacted primarily to disenfranchise voters.
Crawford was an early challenge to what was, at the time, a cutting-edge method of restricting the franchise: strict voter ID laws. Proponents of such laws, which require voters to show a photo ID before they can cast a ballot, typically claim that they are necessary to prevent anyone from impersonating a voter at the polls. But this kind of voter fraud is so rare that it barely exists.
A study by Loyola Law School professor Justin Levitt, who led much of the Justice Department’s voting rights work in the Obama administration, uncovered only 35 credible allegations of in-person voter fraud among the 834 million ballots cast in the 2000-2014 elections. A Wisconsin study found seven cases of any kind of fraud among the 3 million votes cast in the 2004 election — and none were the kind that could be prevented by voter ID. In 2014, Iowa Secretary of State Matt Schultz, a Republican, announced the results of a two-year investigation into election misconduct within his state. He found zero cases of voter impersonation at the polls.
The primary opinion in Crawford was only able to identify one case of in-person voter fraud at the polls in the preceding 140 years.
Perhaps some election lawyer can answer this question. In 2019, the U.S. Supreme Court blocked the Trump administration from including a citizenship question on the 2020 census. The court ruled against the administration because the question’s “‘sole’ voting-rights-related reason” for adding it was “pretextual.” Given that precedent and the evidence Millhiser presents (there is plenty more where that came from), why could that pretextual standard not apply to a raft of voting restriction bills now floating around Republican-controlled legislatures? And to others already in place?
There’s a whole lotta pretext goin’ on.