The Post-Crawford Rise in Voter ID Laws: A Solution Still in Search of a Problem

In Crawford v. Marion County Election Board, the Supreme Court upheld Indiana’s voter identification law, which required registered voters to present government-issued photo identification at the polls. Instead of applying heighted scrutiny to a law that had an effect on voter qualifications, the Court simply balanced the asserted state interest of protecting the integrity and reliability of elections by preventing voter fraud against the burden imposed on eligible voters who were prevented from voting because they did not possess the required form of photo identification. Not persuaded by the fact that Indiana could not point to a single instance of voter fraud, or that significant hurdles existed for eligible voters in obtaining appropriate photo IDs, the Court upheld Indiana’s voter ID law. Five years since Crawford, evidence of significant voter fraud has yet to be uncovered in the United States, despite many concerted attempts to do so. Nevertheless, voter ID laws continue to be an extremely polarizing issue. Proponents argue that without voter ID laws, there is no way to ensure the integrity of elections or voter confidence in the democratic process. Opponents appeal to the same values to argue against voter ID laws – that the integrity of elections and voter confidence in the democratic process are severely limited when voter ID laws disenfranchise a significant portion of the electorate. This Comment argues that the disparity in post-Crawford rulings on voter ID laws results from the failure of the Court in Crawford to articulate a clear standard of review that allows courts to take equal protection considerations into account when deciding whether to uphold or invalidate voter ID laws. After surveying the landscape of post-Crawford decisions on state voter ID laws, this Comment argues that the balancing test articulated in Crawford is inherently unclear and should be abandoned in favor of a heightened form of scrutiny when reviewing state laws that impose new restrictions and voter qualifications