Trotter, Richard W.
April 2013
New York University Journal of Legislation & Public Policy;Spring2013, Vol. 16 Issue 2, p515
Academic Journal
In 2008, the Supreme Court, in Crawford v. Marion County Election Board upheld the constitutional validity of an Indiana law that required the presentation of photo identification as a precondition to voting in all state, local, and federal elections. Since 2011, fourteen additional states have enacted their own photo identification requirement. Twenty-one million registered and otherwise qualified voters, approximately eleven percent of the national total, may now be disenfranchised because they do not possess government-issued photo identification. The Court's decision in Crawford turned on the application of a neutral balancing analysis that weighed the magnitude of the burden on voters against Indiana's purported interest in the prevention of voter fraud. This article argues that Crawford's conclusions are no longer sustainable in the face of mounting evidence of the severity of the burden imposed by voter identification laws and the continued absence of voter fraud. Moreover, this article argues for the application of a new constitutional paradigm in the realm of voting restrictions--one that calls for the application of strict scrutiny to all substantive restrictions of individual voting qualifications. The application of strict scrutiny is not only supported by numerous historical and jurisprudential sources, but also necessary given the increasing momentum of a coordinated effort to restrict the fundamental right to vote.


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