Equal citizenship and the individual right to vote

Indiana Law Journal

Volumn 86, Issue 4, 2011, Pages 1289-1360

  Fishkin, Joseph ^a  

^a UNIVERSITY OF TEXAS   (United States)

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EID: 79960192278     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (512)

1. 553 U. S. 181 (2008).
2. See, e.g., Airtalk with Larry Mantle (Apr. 28, 2008), http://www.fluctu8.com/podcast-episode/airtalk-for-monday-april-28-2008-hour-2- 4320-25805.html (interviewing guest Richard Hasen, who argued that the "most troubling" aspect of the decision is that its reasoning ignores whether legislators enacted the law in order to skew the electorate in a partisan fashion);
3. Edward B. Foley, Crawford and the Amicus Court: Further Support for a Non-Partisan Advisory Tribunal, ELECTION LAW @ MORTTZ (Apr. 29, 2008), http://moritzlaw.osu.edu/electionlaw/comments/articles.php?ID=413 (decrying the "doctrinal weakness" of Crawford);
4. Daniel P. Tokaji, Crawford: It Could Have Been Worse, ELECTION LAW @ MORITZ (Apr. 29, 2008), http://moritzlaw.osu.edu/blogs/tokaji/2008/04/crawford- it-could-have-been-worse.html (explaining his "most serious disagreement" with the decision: its "focus on the individual voter misses the likely systemic impact of the law").
5. Crawford, 553 U. S. at 197.
6. See, e.g., supra note 2.
7. Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643, 717 (1998). The authors argued that "courts avoid confronting fundamental questions about the essential political structures of governance and instead apply sterile balancing tests weighing individual rights of political participation against countervailing state interests in orderly and stable processes."
8. Id. at 645. This article built on previous work by both authors and also by Pam Karlan.
9. See Guy-Uriel Charles, Judging the Law of Politics, 103 MICH. L. REV. 1099, 1113-30 (2005) (explaining the trajectory of "structuralist" scholarship and the rights-structure debate);
10. see also Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593, 630 (2002) (calling for an approach that "moves away from the notion of individual rights as the prime protector of the integrity of the political process, and looks instead to the structural vitality of politics");
11. Richard H. Pildes, The Supreme Court, 2003 Term; Foreword: The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 29, 40 (2004) (arguing that while "[c]onstitutional lawyers are trained to think in terms of rights and equality... politics involves, at its core, material questions concerning the organization of power");
12. id. at 59 ("[F]amiliar and conventional models of individual rights... will provide no solace in addressing structural problems concerning the proper allocation of political representation. "). Issacharoff and Pildes themselves have not yet taken a position on the question of how to apply structuralism to the new vote denial. But adherents of the structuralist approach, such as Spencer Overton, Chris Elmendorf, and Jim Gardner, have now done so. See infra notes 13-19 and accompanying text.
13. But see Issacharoff & Pildes, supra note 5, at 652-68 (discussing the White Primary Cases and arguing that their critique extends back even to first-generation claims).
14. Racial vote dilution claims form the core of what scholars have come to call the "second generation" of voting rights claims. See, e.g., Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 HARV. L. REV. 1663, 1671 (2001);
15. Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 MICH. L. REV. 1077, 1093-94 (1991). Second-generation claims look beyond questions of participation to questions of aggregation.
16. See infra notes 30-32 and accompanying text. There is also, conceptually, a "third generation" of voting rights claims that concern questions of governance.
17. See Pamela S. Karlan, The Impact of the Voting Rights Act on African Americans: Second-and Third-Generation Issues, in VOTING RIGHTS AND REDISTRICTING IN THE UNITED STATES 121, 125 (Mark E. Rush ed., 1998). However, the actual trajectory of voting controversies seems to be backward toward the "new vote denial" rather than forward into this third generation.
18. For an argument for participation, see Spencer Overton, The Donor Class: Campaign Finance, Democracy, and Participation, 153 U. PA. L. REV. 73, 85 (2004). For "democratic contestation, "
19. see Michael S. Kang, Race and Democratic Contestation, 117 YALE L. J. 734 (2008). For the disruption of "lockups, "
20. see Issacharoff & Pildes, supra note 5. Some versions of structuralism focus not on effects or outcomes but on the state's reasons for acting; in either case, the structuralist approach contrasts with a rights-based approach focused on harms to individual plaintiffs.
21. E.g., Richard H. Pildes, Avoiding Balancing: The Role of Exclusionary Reasons in Constitutional Law, 45 HASTINGS L. J. 711, 729 (1994) ("[O]nce the structural conception of rights is adopted, the focus is not on the quantum of individualized harm involved, but rather on the qualitative justifications for the state's exercise of authority."). (Pubitemid 24810724)
22. See Charles, supra note 5, at 1119. Charles's article provides an excellent overview of how structuralism became the dominant approach.
23. RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM BAKER V. CARR TO BUSH V. GORE 139, 154 (2003);
24. cf. Chad Flanders, How to Think About Voter Fraud (And Why), 41 CREIGHTON L. REV. 93, 150 n. 138 (2007) (siding with the "individualist" rather than the "structuralist" analysis of voter fraud controversies but concluding, "it is solely in the case of voter fraud that I find the individualist analysis most persuasive").
25. See Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S. C. L. REV. 689, 701-18 (2006).
26. As recently as 2004, a structuralist scholar could write that "at least in mature democracies, cases concerning democratic processes today do not often implicate what might be considered intrinsic political liberties (leaving aside in the American context, perhaps, the few remaining access-to-the-ballot- box issues, such as voter-registration or felon-disenfranchisement laws)."
27. Pildes, supra note 5, at 52. Today, the exception consigned to that parenthetical-"access-to-the-ballot-box issues"-is swallowing a substantial part of the rule. An increasingly large and hotly-contested subset of all election law controversies are vote denial controversies.
28. See Tokaji, supra note 11, at 709-18.
29. See, e.g., Christopher S. Elmendorf, Undue Burdens on Voter Participation: New Pressures for a Structural Theory of the Right to Vote?, 35 HASTINGS CONST. L. Q. 643, 675-77 (2008);
30. Spencer Overton, Voter Identification, 105 MICH. L. Rev. 631, 634, 657-58 (2007).
31. Elmendorf, supra note 13, at 675. This argument may be an application of the general proposition that courts' focus, in their review of "electoral mechanics", ought to be on the structural question of "whether something is seriously amiss with the democratic process." Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. PA. L. REV. 313, 325 (2007).
32. As one congressional advocate of a recent anti-fraud bill put it: "Despite all the claims that disenfranchisement would ensue" after the enactment of Arizona's law requiring voters to show identification and prove their citizenship, "testimony in Phoenix revealed that registration went up 15 percent.... The fact is, people are encouraged to vote when they believe their vote will count and know that their vote will not be canceled out by an illegal vote." 152 CONG. REC. 18, 738 (2006) (statement of Rep. Ehlers). However, available empirical evidence does not support the proposition that anti-fraud measures increase turnout. See infra note 70 and accompanying text.
33. Overton, supra note 13, at 635 ("If further study confirms that photo-identification requirements would deter over 6700 legitimate votes for every single fraudulent vote prevented, a photo-identification requirement would increase the likelihood of erroneous election outcomes."). For a discussion of "erroneous election outcomes, "
34. see infra notes 109-10 and accompanying text.
35. See, e.g., Michael J. Pitts & Matthew D. Neumann, Documenting Disenfranchisement: Voter Identification During Indiana's 2008 General Election, 25 J. L. & POL. 329, 330 (2009) ("At its most foundational level, the debate surrounding photo identification requirements can be resolved by balancing a photo identification requirement's ability to preserve the integrity of elections by preventing in-person voter fraud against the extent to which such a law limits access to democracy by preventing legitimate voters from casting countable ballots.");
36. id. at 330 n. 6 (clarifying that this essentially means balancing "the number of legitimate voters excluded" against "the number of illegitimate voters prevented from casting fraudulent ballots").
37. See Elmendorf, supra note 13, at 675-77.
38. See generally James A. Gardner, The Dignity of Voters-A Dissent, 64 U. MIAMI L. REV. 435, 462-63 (2010) (arguing that "a robust individually held right" is not "the proper vehicle for vindicating the relevant constitutional values" and arguing instead for "[e]ither a purely structural approach" or an approach in which individual rights claims are "treatfed]" as "structural and instrumental"). Gardner's argument is not specifically addressed to the new vote denial controversies, but covers all controversies that arise at "the end-stage of the election process", which includes most of the new vote denial.
39. Id. at 462.
40. See infra Part II. A.2. Richard Hasen has also endorsed a version of the view that rights are on "both sides" of at least some vote denial controversies. See Richard L. Hasen, You Don i Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 U. MIAMI L. REV. 465, 466 (2010) ("In Bush and the voter-identification cases, the Court failed to recognize rights on both sides of the case and that the rights of voters on (what turned out to be) the losing side easily trumped rights on the winning side of the case." (emphasis in original)).
41. See infra Part II. A.2.
42. 460 U. S. 780 (1983).
43. Anderson built on precedents including Storer v. Brown, 415 U. S. 724 (1974), but those prior cases did not develop the flexible balancing approach that makes Anderson notable.
44. See also Burdick v. Takushi, 504 U. S. 428, 433-34 (1992) (applying Anderson).
45. See Adam Winkler, Note, Expressive Voting, 68 N. Y. U. L. REV. 330, 331 (1993).
46. This link between dignity and equal citizenship is at the heart of my disagreement with Gardner, who argues against recognizing "the dignity of voters." See Gardner, supra note 19, at 441;
47. see also infra notes 202-12 and accompanying text.
48. Such broader patterns sometimes can be stated in terms of the treatment of groups. For example, the harm of disenfranchisement may be more acute because it is part of a broader pattern of racial group subordination. However, these broader patterns need not fall along group lines.
49. See infra Parts III. E & III. G.
50. Gardner, supra note 19, at 462 (emphasis added) (endorsing this view).
51. This proposition is closely related to Guy-Uriel Charles's view that multiple principles-such as "majority rule, political participation, accountability, responsiveness, substantial equality, and interest representation"-are at stake in controversies over democratic politics. Guy-Uriel E. Charles, Constitutional Pluralism and Democratic Politics: Reflections on the Interpretive Approach of Baker v. Carr, 80 N. C. L. REV. 1103, 1142 (2002). Rick Pildes has similarly suggested that the right to vote "protects] several different core interests" that are "qualitatively distinct."
52. Richard H. Pildes, Response, What Kind of Right Is "The Right to Vote"?, 93 VA. L. REV. IN BRIEF 45, 45 (2007);
53. see also Richard H. Pildes & Richard G. Neimi, Expressive Harms, "Bizarre Districts", and Voting Rights: Evaluating Election-District Appearances after Shaw v. Reno, 92 MICH. L. REV. 483, 499-506 (1993) (reading Shaw as a case defending value pluralism against gerrymanders that reflect "value reductionism" by treating racial representation as the only value at stake). I thank Chad Flanders for suggesting the descriptive label "election law pluralism" for the proposition I defend here.
54. See Issacharoff & Pildes, supra note 5.
55. Pamela S. Karlan, The Rights to Vote: Some Pessimism About Formalism, 71 TEX. L. REV. 1705, 1708 (1993).
56. Id at 1713.
57. Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 131, 134
58. (codified as amended at 42 U. S. C. § 1973 (b) (2006)).
59. Karlan, supra note 29, at 1712-13 (emphasis added).
60. Id. at 1717.
61. See id.
62. 539 U. S. 461 (2003).
63. Id. at 489 (quoting testimony of Congressman John Lewis). The dissenters in Ashcroft would have held that the section 5 retrogression inquiry should be concerned exclusively with aggregation interests: the question should simply be the opportunity of members of the minority group to elect candidates of their choice (including through coalition districts).
64. See id. at 492-93 (Souter, J., dissenting).
65. I use "groups" here broadly: the groups with interests at stake in election law controversies include groups defined by geography, political party, and race, as well as groups defined by any other variable that is sufficiently politically relevant that members of the group share some political interests in common. 38. See infra Part III. A freedom not to vote is sometimes taken to be an important right of citizenship, but that idea is contested and beyond the scope of this Article.
66. These interests are parallel to an individual voter's interest in her own right to vote; we might think of them as many individual voters' interests added together.
67. While this tradition generally does not limit participation to voting, voting is central. For the classic normative political theory argument, see CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY (1970).
68. See generally STEPHEN MACEDO, YVETTE ALEX-ASSENSOH, JEFFREY M. BERRY, MICHAEL BRINTNALL, DAVID E. CAMPBELL, LUIS RICARDO FRAGA, ARCHON FUNG, WILLIAM A. GALSTON, CHRISTOPHER F. KARPOWITZ, MARGARET LEVI, MEIRA LEVINSON, KEENA LIPSITZ, RICHARD G. NIEMI, ROBERT D. PUTNAM, WENDY M. RAHN, ROB REICH, ROBERT R. RODGERS, TODD SWANSTROM & KATHERINE CRAMER WALSH, DEMOCRACY AT RISK: HOW POLITICAL CHOICES UNDERMINE CITIZEN PARTICIPATION AND WHAT WE CAN DO ABOUT IT (2005).
69. 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 239 (1991) (emphasis in original). This point naturally raises the question of compulsory voting, which is a subject for another article.
70. For a discussion of how individual rights may protect group interests, and vice versa, see Robert C. Post, Democratic Constitutionalism and Cultural Heterogeneity, 25 AUSTL. J. LEGAL PHIL. 185, 191-95 (2000).
71. Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 HARV. L. REV. 1663, 1681 (2001).
72. Id.
73. To see why, consider a simple example: Under conditions of racially polarized voting, one minority voter lives in a majority-minority district and another lives in the nearly all-white district nearby. Suppose the first voter can always elect her candidate of choice and the second voter never can. Their individual aggregation interests have no relevance to a racial vote dilution claim. Either both of the voters, or neither, experienced vote dilution; the answer turns on the aggregation interests of the group.
74. See, e.g., Connecticut v. Teal, 457 U. S. 440, 453-54 (1982) (explaining that Title VII protects "the individual employee, rather than... the minority group as a whole", yet the disparate impact inquiry turns entirely on whether the employment practice has a disparate impact on the group).
75. Indeed, in vote dilution claims, some members of the relevant group may not even have the right to vote. In one-person-one-vote claims, children are "persons", as are noncitizens. See U. S. Const, amend. XIV, § 2 (requiring Congressional reapportionment on the basis of the "whole number of persons in each State");
76. Garza v. Cnty. of L. A., 918 F.2d 763, 775 (9th Cir. 1990) (affirming the use of persons, rather than citizens, in redistricting as well). The groups most relevant in election law cases, such as racial groups, often include both citizens and noncitizens.
77. 328 U. S. 549, 552 (1946) ("This is not an action to recover for damage because of the discriminatory exclusion of a plaintiff from rights enjoyed by other citizens. The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity.").
78. Id at 556.
79. See Baker v. Carr, 369 U. S. 186, 237 (1962) (holding, contrary to Colegrove, that malapportionment is "within the reach of judicial protection under the Fourteenth Amendment");
80. Wesberry v. Sanders, 376 U. S. 1, 6-7 (1964).
81. The racial disparities created by malapportionment seem to have been important to Earl Warren. See Sanford Levinson, One Person, One Vote: A Mantra in Need of Meaning, 80 N. C. L. REV. 1269, 1296 (2002).
82. See, e.g., Gray v. Sanders, 372 U. S. 368, 379 (1963) (noting the "end result" of Georgia's malapportionment: it "weights the rural vote more heavily than the urban vote");
83. see also Charles, supra note 5, at 1129-30.
84. See Colegrove, 328 U. S. at 570 (Black, J., dissenting) (arguing that "the constitutionally guaranteed right to vote and the right to have one's vote counted"-the individual participation interest-"clearly imply the policy that state election systems, no matter what their form, should be designed to give approximately equal weight to each vote cast"-the individual aggregation interest).
85. 377 U. S. 533, 555 (1964). In other early one-person-one-vote cases the Court made similar moves.
86. See Guy-Uriel E. Charles, Democracy and Distortion, 92 CORNELL L. REV. 601, 658-59 (2007).
87. Sims, 377 U. S. at 567.
88. The difference is especially obvious when the purported "debasement" of the individual right to vote amounts to some tiny fractional deviation from perfect equipopulation. See Issacharoff, supra note 5, at 609 ("[N]o credible individual rights claim could be made where districts numbering in the many thousands deviated from the ideal size by less than one percent.");
89. see also Gardner, supra note 19, at 452 (criticizing the Court for framing one-person-one-vote claims in terms of "some conception of voter dignity" even where the "indignity" in question is "trivially fractional"). Still, there are transitional cases that lie at the edge of this distinction between denial and dilution. Altering the boundary of a town to exclude certain voters can prevent them from voting at all in local elections. This differs from the ordinary legislative redistricting case in which voters are simply moved from one district to another.
90. See Gomillion v. Lightfoot, 364 U. S. 339, 340, 347 (1960) (holding that altering the boundaries of Tuskegee, Alabama to exclude blacks was denial of the right to vote on account of race).
91. E.g., Voinovich v. Quilter, 507 U. S. 146, 160-61 (1993) (explaining that the purpose of the equipopulation requirement is "so that each person's vote may be given equal weight", although this rule is "not an inflexible one");
92. Wesberry v. Sanders, 376 U. S. 1, 2-3 (1964) (in numerical vote dilution case, defining Georgia voters' claim in terms of a right "to have their votes for Congressmen given the same weight as the votes of other Georgians").
93. Such individual aggregation claims are a kind of hybrid at the intersection of individual participation and group aggregation.
94. Indeed, the Court has explicitly rejected attempts by litigants to offer models, such as the Banzhaf test, that would measure the individual's chances of affecting the election outcome. See Bd. of Estimate of N. Y. C. v. Morris, 489 U. S. 688, 698 (1989).
95. Under conditions of equal "weight" as the law defines it, a voter who lives in a district that happens to contain many noncitizens, children, or nonvoters will have far greater influence on election outcomes than a voter elsewhere. See Garza v. Cnty. of L. A., 918 F.2d 763, 781-82 (9th Cir. 1990) (Kozinski, J., concurring and dissenting in part). Individual influence is not protected.
96. See also Levinson, supra note 51, at 1277-89 (detailing a variety of ways that one-person-one-vote does not result in districts with equal numbers of voters).
97. Karlan identifies that rare animal, the "purely individual" aggregation claim independent of group interests, in the supermajority (60%) requirement for bond issues that was challenged unsuccessfully in Gordon v. Lance, 403 U. S. 1 (1971).
98. See Karlan, supra note 29, at 1713 n. 30. Plaintiffs argued that the 60% threshold gave more weight to negative votes than affirmative votes. Id. The Court rejected the argument because it "discern[ed] no independently identifiable group or category" of voters, "no sector of the population", whose interests were harmed.
99. Gordon, 403 U. S. at 5. In effect, the Court rejected the claim because it correctly judged that there was no group aggregation interest here, and, without one, the importance of the individual aggregation interest was mysterious.
100. Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. LEGAL STUD. 725, 755 (1998); (Pubitemid 128429250)
101. see also Pildes & Neimi, supra note 27, at 506-16.
102. Pamela S. Karlan, Nothing Personal: The Evolution of the Newest Equal Protection from Shaw v. Reno to Bush v. Gore, 79 N. C. L. REV. 1345, 1346 (2001) (footnote omitted). There is broad agreement on this point in the academy, even among those who resist structuralism tout court.
103. See, e.g., Hasen, supra note 20, at 467 (agreeing that in such cases, the Court "couched its decision[s] in terms of individual rights" but in fact was concerned with broader, structural interests).
104. Issacharoff & Pildes, supra note 5, at 717.
105. See id. at 668-87.
106. Cf. Charles, supra note 5, at 1114 ("Structuralists sometimes lose sight of the fact that the ultimate point of judicial supervision of politics is to protect, operationalize, or give content to the individual right to self-government.").
107. But see, e.g., Gardner, supra note 19, at 457-58 ("In democratic proceedings, the real party in interest is the public, not the individual voter.").
108. The strength of this interest will depend on (a) just how small that probability is to begin with and (b) to what extent a new anti-fraud regulation actually reduces it.
109. Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam).
110. See supra note 15 and accompanying text.
111. See Stephen Ansolabehere & Nathaniel Persily, Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements, 121 HARV. L. REV. 1737, 1751-58 (2008). Indeed, some evidence suggests that the group of voters who are disillusioned by the flawed machinery of the political process is disproportionately black; their concerns include voter suppression, fear that their votes will not be accurately counted, and concern about the anti-fraud agenda itself.
112. See Ian Urbina, Democrats Fear Disillusionment in Black Voters, N. Y. TIMES, Oct. 27, 2006, at A5 (citing polling data). As far as the relationship between voter identification laws and turnout, there is some debate over whether sufficient data yet exists to draw firm conclusions, but there is certainly no evidence of a positive effect on turnout; some methodologies show a negative effect, but the effect may not be statistically significant.
113. See generally Robert S. Erikson & Lorraine C. Minnite, Modeling Problems in the Voter Identification-Voter Turnout Debate, 8 ELECTION L. J. 85 (2009).
114. Not always, however. See infra note 88 and accompanying text.
115. For example, in 2000, Missouri Republican Secretary of State Matt Blunt accused his opponents of "a major criminal enterprise designed to defraud voters" and steal the election by holding the polls open late so that illegitimate voters could vote. Carolyn Tuft, Bond Wants Federal Investigation of Problems at City Polls-He Accuses Democrats of "Criminal Enterprise" in Keeping Polls Open Late-Democrats Criticize Election Board, ST. LOUIS POST-DISPATCH, Nov. 10, 2000, at A1.
116. Crawford v. Marion Cnty. Election Bd., 553 U. S. 181, 203 (2008) (Stevens, J.) (plurality opinion). In dissent on the Seventh Circuit panel in Crawford, Judge Evans called the law "a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic."
117. Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 954 (7th Cir. 2007) (Evans, J., dissenting)
118. affd, 553 U. S. 181 (2008).
119. Crawford, 472 F.3d at 952 (Posner, J.) ("[T]he motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls.").
120. See, e.g., Bryan P. Jensen, Comment, Crawford v. Marion County Election Board: The Missed Opportunity to Remedy the Ambiguity and Unpredictability of Burdick, 86 DENV. U. L. REV. 535, 558 (2009).
121. Demian A. Ordway, Note, Disenfranchisement and the Constitution: Finding a Standard That Works, 82 N. Y. U. L. REV. 1174, 1178 (2007).
122. Crawford v. Marion Cnty. Election Bd., 484 F.3d 436, 437 (7th Cir. 2007) (Wood, J., dissenting from the denial of reh'g en banc)
123. ajf' d, 553 U. S. 181 (2008).
124. Vieth v. Jubelirer, 541 U. S. 267, 337-38 (2004) (Stevens, J., dissenting);
125. see also Elmendorf, supra note 13, at 668-69. For a thorough argument against intent-based standards
126. see Richard L. Hasen, Bad Legislative Intent, 2006 WIS. L. REV. 843.
127. Even critics of deciding the validity of election regulations based on legislative intent acknowledge that legislative intent may usefully play some secondary role. See, e.g., Hasen, supra note 78, at 888-89. For example, obvious intent to entrench or shut out a political party ought to make us more skeptical of the purported (structural) state interest justifying an election regulation. But see infra note 106 and accompanying text (discussing the fact that courts are often reluctant to make such determinations).
128. See infra Part III (discussing individual voters' interest in their right to vote in more detail).
129. Indeed, the polity's collective interest in safeguarding its members' right to vote has proved crucial in voting rights litigation in which the United States wished to intervene. Thanks to Owen Fiss for pointing this out.
130. See Flanders, supra note 10, at 147 ("[G]roups may start movements in order to have the right to participate, but once this right is granted that right must be taken one person at a time....").
131. The group interest is only partly derivative of individuals' interests. Even if I can personally cast a ballot, it affects my group interests if others in my group are disproportionately blocked from voting. See Overton, supra note 13, at 673-74 ("[P]hotoidentification requirements that exclude legitimate voters dilute the political choices of not only those who are unable to produce photo identification but also their allies who do produce a photo-identification card." (emphasis added)).
132. 147 CONG. REC. 3660-61 (2001) (statement of Sen. Christopher Bond debating the Safeguard the Vote Act).
133. See supra note 61.
134. See supra note 56 and accompanying text.
135. Christopher S. "Kit" Bond, Op-Ed., 'Motor Voter' Out of Control, WASH. POST, June 27, 2001, at A25.
136. Section 5 Recommendation Memorandum: August 25, 2005, at 6, available at http://www.truthaboutfraud.org/pdf'08-25- 05%20Georgia%20ID%20Preclearance%20Memo%20-%20DOJ%20Staff.pdf. This claim alarmed the DOJ line attorneys, a majority of whom ultimately recommended against preclearing the bill.
137. See id. at 1, 51. However, the DOJ precleared the change despite this recommendation.
138. See Daniel P. Tokaji, If It's Broke, Fix It: Improving Voting Rights Act Preclearance, 49 HOW. L. J. 785, 816-17 (2006).
139. One could, of course, argue that only voters with identification are "legitimate", but this move is question begging. Procedural requirements do not determine who is eligible to vote.
140. Publius, Securing the Integrity of American Elections: The Need for Change, 9 TEX. REV. L. & POL. 277, 278 (2005) (emphasis added). Hans von Spakovsky, a conservative election lawyer, published this law review article under the pseudonym "Publius" while working at the DOJ.
141. See Dan Eggen, Official's Article on Voting Law Spurs Outcry, WASH. POST, Apr. 13, 2006, at A19. Senator Bond began to adopt this fraud-as- disenfranchisement rhetoric during the Help America Vote Act debate when he argued that "[t]here can be no graver example of disenfranchisement" than fraud.
142. 147 CONG. REC. 15, 851 (2001) (statement of Sen. Christopher Bond). Congressional Republicans emphasized this argument during the 2006 debate over the Federal Election Integrity Act of 2006, a bill that would have imposed a federal voter identification requirement.
143. See, e.g., 152 CONG. REC. 18, 743 (2006) (statement of Rep. Mark Green) ("Every one of those illegal votes cancels out a vote legally cast, cancels out a vote from a citizen for whom that right is so precious").
144. Gardner views the rise of this flawed fraud-as-disenfranchisement argument (along with the fraud-as-dilution argument) as a reason to reject the Court's entire individual-rightsbased doctrinal approach in favor of structuralism.
145. Gardner, supra note 19, at 458-63. But the real problem with fraud-as-disenfranchisement is that this argument mischaracterizes group and/or polity interests as individual interests; in that important way the fraud-asdisenfranchisement argument differs from claims by individual voters who actually face disenfranchisement.
146. In theory, if fraud were so extreme and widespread that democratic elections became meaningless, one can imagine a case in which voting ceased to function as an enactment of full citizenship. This scenario is far removed from the new vote denial controversies.
147. Missouri ex. rel. Bush-Cheney 2000, Inc. v. Baker, 34 S. W.3d 410, 411-12 (Mo. Ct. App. 2000).
148. Id. at 413. Here, the purported dilution was from "improper[]" votes cast by those not "entitled to vote" who "were improperly permitted to cast a ballot after the polls should legally have been closed."
149. Id. at 413, 413 n. 6. The fraud-as-dilution argument migrated from politics to the courts but also back the other way: Senator Bond grabbed hold of this judicial language and has quoted it repeatedly.
150. See supra note 84 and accompanying text.
151. League of Women Voters v. Blackwell, 340 F. Supp. 2d 823, 829 (N. D. Ohio 2004) (upholding Ohio's refusal to allow certain first-time voters to use a regular, rather than a provisional, ballot).
152. Ohio Republican Party v. Brunner, 544 F.3d 711, 713 (6th Cir. 2008) (en banc) (Sutton, J.)
153. vacated on other grounds, 555 U. S. 5 (2008) (per curiam).
154. 549 U. S. 1, 1 (2006) (per curiam).
155. Id. at 4
156. (quoting Dunn v. Blumstein, 405 U. S. 330, 336 (1972)).
157. Id.
158. Id.
159. (quoting Reynolds v. Sims, 377 U. S. 533, 555 (1974)).
160. Id.
161. Shaw v. Reno, 509 U. S. 630, 632 (1993).
162. Robinson O. Everett, Redisricting in North Carolina-A Personal Perspective, 79 N. C. L. REV. 1301, 1310 (2001).
163. Karlan, supra note 63, at 1350 (emphasis in original). Perhaps a better (if less pithy) way to state the point is this: the Shaw plaintiffs' claim sounded in aggregation, not participation. The problem was not that the claim had some subjective as well as objective elements-rather, the problem was that it was not actually a claim of disenfranchisement at all.
164. See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2338-47 (2006).
165. See, e.g., Crawford v. Marion Cnty. Election Bd., 553 U. S. 181, 204 (2008) ("[I]f a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators."). This acknowledgment of multiple legislative motivations underscores the difficulties involved in urging courts to evaluate election regulations primarily in terms of the motivations of legislators.
166. See supra notes 78-79 and accompanying text.
167. See infra Part III. G.
168. Cf Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de Facto ERA, 94 CAL. L. REV. 1323, 1330-31 (2006) ("As movement and counter-movement struggle to persuade (or recruit) uncommitted members of the public, each movement is forced to take account of the other's arguments, and in time may even begin to incorporate aspects of the other's arguments into its own claims-").
169. Overton, supra note 13, at 635.
170. Id. (explaining that "erroneous election outcomes" may occur because of either type of error: fraudulent votes or the disenfranchisement or deterrence of eligible voters who would otherwise have voted).
171. Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 952 (7th Cir. 2007) (Posner, J.)
172. aff'd, 553 U. S. 181 (2008).
173. Griffin v. Roupas, 385 F.3d 1128, 1131 (7th Cir. 2004) (Posner, J.).
174. Holder v. Hall, 512 U. S. 874, 893 (1994) (Thomas, J., concurring) ("[0]nly a resort to political theory... can enable a court to determine which electoral systems provide the 'fairest' levels of representation or the most 'effective' or 'undiluted' votes to minorities.").
175. See generally Charles, supra note 27 (arguing that courts should use political theory to decide election law cases, and that in any event, they cannot avoid doing so).
176. This aspect of the hypothetical is meant to be illustrative and is not realistic.
177. This raises some tricky questions about official candor: would anyone really be impressed with an integrity-promoting measure that officials admitted amounted to nothing more than random disenfranchisement? Let us leave these questions to one side.
178. See generally RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977) (arguing that justice requires the law to treat individuals with equal concern and respect rather than reducing all questions of justice to questions of utilitarian welfare maximization).
179. Crawford v. Marion Cnty. Election Bd, 484 F.3d 436, 438 (7th Cir. 2007) (Wood, J., dissenting dissenting from the denial of reh'g en banc)
180. ajfd, 553 U. S. 181 (2008). The dissent's focus on whether the restriction was "severe, "
181. id. at 437-38, applies the framework from Burdick.
182. Elmendorf, supra note 13, at 701.
183. Id. at 701-02.
184. See infra Parts III. B, III. D.
185. Elmendorf, supra note 13, at 702.
186. See id. at 647-48, 656 & app.
187. See supra note 70 and accompanying text;
188. see also Dan M. Kalian, "Ideology in " or "Cultural Cognition of Judging: What Difference Does it Make?, 92 MARQ. L. REV. 413, 419-22 (2009) (demonstrating, in a voter identification case, that value disagreements color judges' views of basic factual questions).
189. See, e.g., Overton, supra note 13, at 634-37.
190. Id. at 665-67.
191. Purcell v. Gonzalez, 549 U. S. 1, 6 (2006) (Stevens, J., concurring).
192. Crawford v. Marion Cnty. Election Bd., 553 U. S. 181, 218 (2008) (Souter, J., dissenting).
193. Overton, supra note 13, at 644 n. 68
194. (quoting Richard A. Posner, Legal Narratology, 64 U. CHI. L. REV. 737, 742 (1997)) (alteration in original).
195. Weinschenk v. State, 203 S. W.3d 201, 204 (Mo. 2006) (en banc) (per curiam) (enjoining Missouri's voter identification law).
196. Id. at 206, 209.
197. Id. at 209.
198. Id.
199. 405 U. S. 330 (1972) (striking down a one-year durational residency requirement).
200. 395 U. S. 621 (1969) (striking down a law limiting school board elections to parents and property owners).
201. Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, 89 Stat. 400 (1975).
202. See infra Parts III. C & III. D.
203. 460 U. S. 780 (1983).
204. Id at 782.
205. Id. at 789
206. (quoting Storer v. Brown, 415 U. S. 724, 730 (1974)).
207. Id.
208. Id.
209. 504 U. S. 428, 430 (1992).
210. Id. at 437-38.
211. Id, at 433-34.
212. Anderson, 460 U. S. at 793-94.
213. Burdick, 504 U. S. at 437.
214. Cf. Brief of Professor Erwin Chemerinsky as Amicus Curiae in Support of Neither Party at 6-9, Crawford v. Marion Cnty. Election Bd, 553 U. S. 181 (2008) (No. 07-21, 07-25) (arguing that the "indirect" burdens on voting rights in Anderson and Burdick differ markedly from burdens that involve actually disenfranchising voters, where strict scrutiny applies).
215. See Issacharoff & Pildes, supra note 5, at 670-74.
216. Id.
217. see also id. at 679-81
218. (applying a similar analysis to the purported state interests invoked in Timmons v. Twin Cities Area New Party, 520 U. S. 351 (1997)).
219. Anderson, 460 U. S. at 790
220. (quoting Storer v. Brown, 415 U. S. 724, 730 (1974)).
221. This observation was Pildes's key insight in Why Rights Are Not Trumps: much of the rights adjudication that is framed in terms of balancing is actually about policing the reasons for state action.
222. Pildes, supra note 62, at 733-34. The Anderson/Crawford framework, however, really is about balancing the weight of the individual rights against the weight of the state's interests. In this flexible framework, differences of degree matter.
223. See Crawford v. Marion Cnty. Election Bd, 553 U. S. 181, 204-05 (2008) (Scalia, J., concurring in judgment) ("Burdick forged Anderson's amorphous 'flexible standard' into something resembling an administrable rule.... [A] two-track approach." (citation omitted)).
224. But see id. at 190 n. 8 (Stevens, J.) ("Contrary to Justice Scalia's suggestion", Burdick "applied the 'flexible standard' set forth in Anderson").
225. Cf. James E. Fleming, "There Is Only One Equal Protection Clause": An Appreciation of Justice Stevens's Equal Protection Jurisprudence, 74 FORDHAM L. REV. 2301 (2006) (tracing Justice Stevens' general jurisprudential skepticism about threshold inquiries into tiers of scrutiny).
226. Anderson, 460 U. S. at 789 (emphasis added).
227. Other doctrinal alternatives, such as proportionality review, could serve the same basic function as the balancing test the Court has developed. What is inevitable here is not the particular doctrinal test but the necessity of developing some doctrinal mechanism for weighing varying burdens on individual rights against varying state interests. Indeed, Justice Breyer has argued that the form of balancing employed in cases such as Anderson and Burdick is itself a form of proportionality review.
228. See District of Columbia v. Heller, 554 U. S. 570, 689-90 (2008) (Breyer, J., dissenting) (citing Burdick, among other cases, as precedent for a "proportionality" approach to "interest-balancing" in American law);
229. see also Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402-03 (2000) (Breyer, J., concurring) (similarly citing Anderson).
230. See infra note 323.
231. See, e.g., Elmendorf, supra note 13, at 663-66.
232. This is not Elmendorf s assumption.
233. See id.
234. See Crawford, 553 U. S. at 189 (holding only that "the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute" but leaving open a possibility of a future as-applied challenge).
235. See Gillian E. Metzger, Facial Challenges and Federalism, 105 COLUM. L. REV. 873, 880-81 (2005) (arguing that the facial and as-applied challenges are more of a continuum than a dichotomy, but noting the general rule that as-applied challenges allow the challenged rule to be enforced in some circumstances).
236. See, e.g., Weinschenk v. State, 203 S. W.3d 201, 206-07, 209 (Mo. 2006) (discussing one plaintiff's inability to make a consistent signature mark due to a disability).
237. See generally Nathaniel Persily & Jennifer S. Rosenberg, Defacing Democracy?: The Changing Nature and Rising Importance of As-Applied Challenges in the Supreme Court's Recent Election Law Decisions, 93 MINN. L. REV. 1644 (2009).
238. The Court's early jurisprudence of as-applied challenges in election law cases invokes two different ways in which a challenge might be "as applied": (a) post-enforcement rather than pre-enforcement, or (b) as applied to subsets of voters rather than to everyone.
239. See Gillian E. Metzger, Facial and As-Applied Challenges Under the Roberts Court, 36 FORDHAM URB. L. J. 773, 774 (2009). Of these, only (b) does the work of making vote denial jurisprudence more attentive to differences in voters' needs and situations. There is some evidence that the Court's early jurisprudence of as-applied challenges in election law cases focuses on (a) as well.
240. See id. at 780-81 (describing the Court's justifications for rejecting facial challenges in two election cases, which include the need to wait for evidence of how a law operates in practice). Focusing courts' attention on post-enforcement rather than preenforcement review presents serious problems in the election law context because of the particular difficulties post-election relief entails.
241. For example, once a state has determined the conditions under which it will allow some voters to vote early or absentee, the question should be the weight of the state's interests in restricting those paths. Eliminating needless restrictions on the use of existing routes to casting ballots can greatly alleviate, if not entirely solve, many individualized problems.
242. See, e.g., Elmendorf, supra note 13, at 664-66 (listing some difficult hypothetical claims by individual voters about particular burdens, many of which arise only because early and/or absentee voting are highly restricted).
243. See Crawford, 553 U. S. 181, 216-18 (2008) (Souter, J., dissenting) (describing the burden on voters of making a separate trip to the county seat if they want their provisional ballots to be counted and then signing an affidavit attesting that they are "indigent" or have religious objections to being photographed).
244. The scope of the "similarly situated" group entitled to relief matters a great deal here.
245. See Persily & Rosenberg, supra note 163, at 1673 (concluding that even within the "asapplied" framework, "broader relief beyond that narrowly tailored to a plaintiff's circumstances ought ordinarily to be available").
246. E-mail from Michael Kozik, Office of the Connecticut Secretary of State, to author (Mar. 20, 2009) (on file with author);
247. see CONN. GEN. STAT. ANN. § 9-158c (West 2009).
248. Compare CONN. GEN. STAT. ANN. § 9-158d (requiring applicants for a special "presidential ballot" to attest in writing to their age, citizenship, residency, and the fact that they have not "forfeited f their] electoral privileges because of conviction of a disfranchising crime")
249. with CONN. GEN. STAT. ANN. § 9-23g (e) (requiring regular voter registration applications to be signed and dated and show the applicant's age, citizenship, and residency).
250. ACORN v. Bysiewicz, 413 F. Supp. 2d 119, 124 (D. Conn. 2005).
251. Id.
252. Id.
253. Id at 133-36.
254. Id. at 124 (emphasis omitted).
255. Id.
256. (quoting Griffin v. Roupas, 385 F.3d 1128, 1131 (7th Cir. 2004) (Posner, J.)).
257. Id. at 147.
258. Perhaps the state's interests could have justified this exclusion. But the judge found the regulation sufficiently "reasonable and nondiscriminatory" that he never closely scrutinized those interests.
259. Id. at 154.
260. Cf. Michael S. Kang, When Courts Won't Make Law: Partisan Gerrymandering and a Structural Approach to the Law of Democracy, 68 OHIO ST. L. J. 1097, 1112-17, 1119-20 (2007) (discussing courts' unwillingness to answer structural questions, even when they are willing to ask them).
261. Crawford, 553 U. S. 181, 190 (2008)
262. (quoting Norman v. Reed, 502 U. S. 279, 288-89 (1992)). The opinion did embrace the empirically unsupported premise that anti-fraud measures increase "public confidence in the integrity of the electoral process" which in turn "encourage[] citizen participation. "
263. Id. at 197.
264. See Flanders, supra note 10, at 92, 97, 132-37 (arguing that minute amounts of fraud are comparable to "noise" in the election results, whereas "massive" fraud presents a serious structural danger).
265. Crawford, 553 U. S. at 224-33 (Souter, J., dissenting) (explaining that although the state has a general interest in preventing fraud, this statute addresses only a single, highly "unlikely" form of fraud).
266. Id. at 201 (Stevens, J.) ("The record says virtually nothing about the difficulties faced by either indigent voters or voters with religious objections to being photographed.").
267. Id. at 202.
268. Justice Stevens engaged in a lengthy back-and-forth with Justice Souter regarding such demographic questions as "how many indigent voters lack copies of their birth certificates", disputing Justice Souter's inferences as "[s]upposition based on extensive Internet research."
269. Id. at 202 n. 20. Questions of "how many" similarly preoccupied the lower courts. Judge Posner held that the "fewer the people harmed by a law, the less total harm there is to balance against" the interests of the state.
270. Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 952 (7th Cir. 2007) (Posner, J.)
271. qff"d, 553 U. S. 181 (2008). That balance weighs structural interests. "Total harm" is of only very indirect relevance to the question of whether a burden on one individual's right to vote is justified.
272. Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 782-83 (S. D. Ind. 2006)
273. ajfdsub nom. Crawford v. Marion Cnty. Election Bd., 472 F.3d 949 (7th Cir. 2007)
274. affd, 553 U. S. 181 (2008).
275. The Marion County Democratic Central Committee also filed.
276. Id.
277. Crawford, 472 F.3d at 951 (Posner, J.). Plaintiffs in the other consolidated suit included officeholders and various organizations representing poor, homeless, minority, and/or elderly voters.
278. Rokita, 458 F. Supp. at 783.
279. Crawford, 553 U. S. at 218 (Souter, J., dissenting).
280. Id. at 238 (Breyer, J., dissenting).
281. See id. at 189 ("[T]he evidence in the record is not sufficient to support a facial attack on the validity of the entire statute...." (emphasis added)).
282. Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 445, 450 (2008) (holding that Washington's top-two primary system was not facially invalid, but that an as-applied challenge might be brought once the statute had actually been implemented by the state). For a discussion of this aspect of the case
283. see Joshua A. Douglas, The Significance of the Shift Toward As-Applied Challenges in Election Law, 37 HOFSTRA L. REV. 635, 646-49 (2009). For the distinction between these two meanings of "as applied, "
284. see supra note 164.
285. See Douglas, supra note 190, at 674-80;
286. Persily & Rosenberg, supra note 163, at 1672-75.
287. See RICHARD TUCK, FREE RIDING 30-62 (2008).
288. See, e.g., id.; Donald P. Green & Ian Shapiro, PATHOLOGIES OF RATIONAL CHOICE THEORY: A CRITIQUE OF APPLICATIONS IN POLITICAL SCIENCE 47-71 (1994).
289. LEARNED HAND, Democracy: Its Presumptions and Realities, in THE SPIRIT OF LIBERTY: PAPERS AND ADDRESSES OF LEARNED HAND 70, 72 (Irving Dilliard ed., 1959).
290. LEARNED HAND, THE BILL OF RIGHTS: THE OLIVER WENDELL HOLMES LECTURES 73-74 (1958).
291. Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007) (Posner, J.)
292. qff-d, 553 U. S. 181 (2008).
293. See Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 FLA. L. REV. 443, 451-52 (1989) (arguing that the right to vote has a constitutive as well as an instrumental value).
294. ARISTOTLE, THE POLITICS 86-87 (Carnes Lord trans., 1984). Aristotle considered and rejected various alternative definitions of citizen, such as the idea that citizens are the children of other citizens, concluding that only a functional definition, focused on who is entitled to participate, could properly capture the distinction between citizens and noncitizens.
295. Id.
296. With the development of modern systems of elected representation, this connection deepened and became intertwined with the modern idea that legitimacy derives from the consent of the governed-that is, the individual consent of all citizens-as opposed to, for example, some citizens selected by lot, as in parts of the ancient Athenian democratic model.
297. See BERNARD MANIN, THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT 79-93 (1997).
298. JUDITH N. SHKLAR, AMERICAN CITIZENSHIP: THE QUEST FOR INCLUSION 2 (1991).
299. In this discussion of citizenship, I will leave aside the many thicker and more demanding conceptions of citizenship that require elaborate social practices and/or place civic activities at the center of one's life. My concern is with a more basic form of citizenship: full membership in a democratic polity.
300. SHKLAR, supra note 200, at 3.
301. Id.
302. Id at 38.
303. Martin Luther King, Jr., Speech Before the Youth March for Integrated Schools (Apr. 18, 1959), in A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS AND SPEECHES OF MARTIN LUTHER KING, JR. 21, 22 (James Melvin Washington ed., 1986). This is the key proposition that Gardner contests.
304. See Gardner, supra note 19, at 444-48. Gardner is right that the dignitary aspect of the right to vote is not pre-political; it is not quite the same thing as "the inherent dignity possessed at all times by all humans."
305. Id. at 447. But neither is it simply a mechanism for producing election outcomes. The right to vote enacts a form of civic inclusion, defining not merely who is a "voter, "
306. id. at 456, but who is a full citizen. While the dignity of full and equal citizenship is, in Gardner's terms, "role-specific, "
307. id. at 454, the relevant "role" is that of "citizen"; exclusion from the role of citizen is the dignitary harm Shklar and King highlight.
308. IRIS MARION YOUNG, INCLUSION AND DEMOCRACY 6 (2000);
309. see also ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 109-11 (1989) (arguing that all citizens' rights to cast a vote and have that vote counted equally-"voting equality at the decisive stage"-are essential for a democracy of "political equals", although much more is also required);
310. ROBERT DAHL, ON POLITICAL EQUALITY 8-10 (2006) (same);
311. JOHN RAWLS, A THEORY OF JUSTICE 194 (rev. ed. 1999) (arguing that the first principle of justice requires that "all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply").
312. See YOUNG, supra note 206, at 6.
313. Kenneth L. Karst, The Supreme Court 1976 Term: Forward: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 28 (1977);
314. see also KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION 94 (1989).
315. RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 187 (2000).
316. Jeremy Waldron, Dignity and Rank, 48 EUR. J. Soc. 201, 217-21 (2007).
317. Id. at 226-33;
318. see also Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 748-50 (2011) (arguing that a concept of dignity can help us formulate and understand "hybrid equality/liberty claims").
319. Cf Bush v. Gore, 531 U. S. 98, 104 (2000) ("When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter."). This narrow claim is a close cousin to a much broader set of claims advanced by constitutional law scholars about the relationship between liberty and equality in Fourteenth Amendment jurisprudence.
320. See, e.g., Pamela S. Karlan, Equal Protection, Due Process, and the Stereoscopic Fourteenth Amendment, 33 MCGEORGE L. REV. 473 (2002). Although most of the constitutional litigation in this area has concerned the Equal Protection Clause, the idea of equal citizenship has at least as natural a home in the Due Process Clause.
321. See Kenneth L. Karst, The Liberties of Equal Citizens: Groups and the Due Process Clause, 55 UCLA L. REV. 99 (2007).
322. Of course, if a state switched to a form of government that elected no officials, or perhaps one that failed to elect the most important officials, instead choosing officials through some other process, that would raise serious questions-not about the equal treatment of individuals, but about whether the state remained a democracy and its inhabitants remained "citizens" at all.
323. See infra Part III. C.1. Democratic processes also exist that do not involve voting. A state might choose to elect an office by lot, or by allowing only a small, randomly selected set of citizens to vote (e.g., the jury). Those who are not selected for the jury are not disenfranchised-because such systems of selection are not elections. The question of how we ought to view a polity that governed primarily by jury or lot, eschewing elections, is beyond the scope of this Article.
324. See supra Part I.
325. She is not merely being excluded from a narrower "office of voter." Gardner, supra note 19, at 457 n. 77 (arguing for a narrow view of the "office of voter... taken up very briefly and temporarily by an eligible citizen" and conceptually distinct from the role of citizen).
326. Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007) (Posner, J.)
327. aff'd, 553 U. S. 181 (2008).
328. Id at 952.
329. Susan B. Anthony is the most famous example: she and nearly fifty "Anthony women" registered in Rochester in November 1872.
330. See Judith S. Kaye, Rewriting History: The Trial of Susan B. Anthony, 80 N. Y. ST. B. ASS'N J., Oct. 2008, at 38, 38. Anthony voted and was later convicted.
331. Id.
332. Charles Taylor, The Politics of Recognition, in MULTICULTURALISM: EXAMINING THE POLITICS OF RECOGNITION 25, 37-38 (Amy Gutmann ed., 1994).
333. Id. at 37.
334. Id at 38.
335. Felon disenfranchisement is one counterexample to the politics of universalism thesis. Some advocates of felon disenfianchisement hold that felons, because they have failed to live up to their responsibilities as citizens, are no longer full, first-class citizens.
336. Cf. Green v. Bd. of Elections of New York, 380 F.2d 445, 451 (2d Cir. 1967) (Friendly, J.) (justifying felon disenfranchisement in terms of the felon's violation of the social compact)
337. cert, denied, 389 U. S. 1048 (1968).
338. See SHKLAR, supra note 200, at 16 ("[B]lack chattel slavery stood at the opposite social pole from full citizenship and so defined it.");
339. id. at 16-17 ("[W]here slavery is not just a figure of speech or a chapter in one's ancient history textbook but is an integral social institution, it is necessarily a threat. To be less than a full citizen is at the very least to approach the dreaded condition of a slave."). This connection was also particularly apparent to ex-slaves. As Frederick Douglass argued, "Slavery is not abolished until the black man has the ballot."
340. Id. at 52
341. (quoting 4 THE LIFE AND WRITINGS OF FREDERICK DOUGLASS 167 (Philip S. Fonered., 1955)).
342. Membership in the larger circle of "citizens" entailed important legal rights, but these were civil rather than political.
343. * (1998) (discussing the distinction).
344. Minor v. Happersett, 88 U. S. 162 (1874).
345. U. S. CONST, amend. XIV, § 1.
346. Minor, 88 U. S. at 165. The Court emphasized that white women had been considered "citizens" throughout American history.
347. Id. at 165-66. But with isolated exceptions, notably the brief enfranchisement of property-owning women in New Jersey, which ended in 1807, they had been excluded from the set of first-class, voting citizens.
348. Id. at 176-77.
349. Id. at 178. The case was one of a string of cases of its era in which the Court eviscerated the Privileges or Immunities Clause by holding that there are essentially no meaningful privileges of national citizenship.
350. See The Slaughter-House Cases, 83 U. S. (16 Wall.) 36 (1872);
351. see also Adamson v. California, 332 U. S. 46, 74-79 (1947) (Black, J., dissenting) (criticizing the limitations the Court imposed on the Fourteenth Amendment in the S laughter-House Cases and related cases of this period).
352. I leave aside here the merits of the question of whether the Fourteenth Amendment ought to have been interpreted in 1874 to guarantee all citizens, including women, the right to vote.
353. See Akhil Reed Amar & Jed Rubenfeld, A Dialogue, 115 YALE L. J. 2015 (2006) (debating this issue).
354. Minor, 88 U. S. at 166.
355. At least in the political sphere. The Court presumably was not intending to eviscerate what was then an important distinction between "citizens" and "inhabitants" in their civil (not political) rights.
356. See note 224.
357. Minor, 88 U. S. at 166.
358. Id.
359. See JAMES H. KETTNER, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 316-17 (1978).
360. For example, the Supreme Court of North Carolina held in 1838 that "the term 'citizen' as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government" from monarchy to republic. State v. Manuel, 20 N. C. (3 & 4 Dev. & Bat.) 144
361. *5 (N. C. 1838) (emphasis in original).
362. ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 105-71 (2000).
363. J. MORGAN KOUSSER, THE SHAPING OF SOUTHERN POLITICS: SUFFRAGE RESTRICTION AND THE ESTABLISHMENT OF THE ONE-PARTY SOUTH, 1880-1910, at 70 (1974);
364. see id. at 39-44, 68-72;
365. see also STEVEN F. LAWSON, BLACK BALLOTS: VOTING RIGHTS IN THE SOUTH, 1944-1969, at 11-12 (1999).
366. KEYSSAR, supra note 235, at 129.
367. See generally KOUSSER, supra note 236.
368. In the Reconstruction era, some noncitizens also had the vote. Alien "declarant" voting, in which noncitizens could vote upon declaring their intent to naturalize, was common during this period, but states almost universally eliminated it as part of the new wave of restrictions on the franchise between the 1890s and 1920s. See KEYSSAR, supra note 235, at 371-73 tbl. A.12.
369. This arguably had the effect of tying voting more closely to citizenship. Since this period, the prohibitions on noncitizen voting in federal elections have since hardened considerably. See infra notes 284-85 and accompanying text.
370. See KEYSSAR, supra note 235, at 128-36;
371. FRANCES FOX PIVEN, LORRAINE C. MINNITE & MARGARET GROARKE, KEEPING DOWN THE BLACK VOTE: RACE AND THE DEMOBILIZATION OF AMERICAN VOTERS 31 (2009).
372. For example, by the mid-1920s, thirteen states outside the South were disenfranchising illiterate citizens who met all other requirements. KEYSSAR, supra note 235, at 145 & tbl. A. 13.
373. KEYSSAR, supra note 235, at 124
374. (quoting Francis Parkman, The Failure of Universal Suffrage, 127 N. AM. REV. 1, 10 (1878)).
375. Id.
376. Id. at 123-24.
377. Id. at 153-56;
378. see also Dayna L. Cunningham, Who Are to Be the Electors? A Reflection on the History of Voter Registration in the United States, 9 YALE L. & POL' Y REV. 370, 380-88 (1991).
379. Rogers Smith has exhaustively traced the trajectory of these deeply antiliberal, exclusionary arguments. See ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U. S. HISTORY 286-409 (1997).
380. KEYSSAR, supra note 235, at 178, 198-200;
381. see SHKLAR, supra note 200, at 57.
382. For a thorough discussion, see Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 HARV. L. REV. 947, 981-87 (2002).
383. Reva B. Siegel, Collective Memory and the Nineteenth Amendment: Reasoning About "The Woman Question" in the Discourse of Sex Discrimination, in HISTORY, MEMORY, AND THE LAW 131, 148 (Austin Sarat & Thomas R. Keams eds., 1999) (emphasis omitted)
384. (quoting CONG. GLOBE, 40th Cong., 2d Sess. 1956 (1868) (statement of Sen. Broomall)).
385. Siegel, supra note 246, at 987.
386. Id. at 989
387. (quoting Hearing of the Woman Suffrage Association Before the H. Comm. on the Judiciary, 52d Cong. 1 (1892) (statement of Elizabeth Cady Stanton)).
388. For example, Stanton argued against laws that made "sex a disqualification for citizenship" by arguing that such laws made "all men rulers, governors, sovereigns, over all women. " Id. at 990-91
389. (quoting Arguments of the Woman-Suffrage Delegates Before the S. Comm. on the Judiciary, S. MISC. DOC. NO. 47-74, at 5 (1880) (statement of Elizabeth Cady Stanton)).
390. See id. at 1034-35.
391. See J. M. Balkin & Sanford Levinson, Commentary, The Canons of Constitutional Law, 111 HARV. L. REV. 963, 1018 (1998) (explaining the concept of the anticanon).
392. Cf. Charles, supra note 5, at 1113
393. (singling out Minor and Giles v. Harris, 189 U. S. 475 (1903), as "the egregious cases in election law" in which the Court failed to protect political rights). One inadvertent but notable illustration of this point is the fact that one commentator, in an attempt to argue against the entire modern line of cases that treat the right to vote as a fundamental right, begins his main argument with an approving discussion of Minor, without any reference to the constitutional changes-the Nineteenth Amendment, the civil rights movement-that repudiated Minor and its logic.
394. See Thomas Basile, Inventing the "Right to Vote" in Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008)
395. HARV. J. L. & PUB. POL'Y 431, 441-42 (2009).
396. As we come to think of voting as part of what defines citizens, rather than merely as a device for balancing their interests, virtual representation becomes untenable. As Frank Michelman once put it: "Virtual representation of interests may be conceivable. Vicarious self-government is not." Michelman, supra note 197, at 457.
397. SHKLAR, supra note 200, at 38.
398. BRIAN K. LANDSBERG, FREE AT LAST TO VOTE: THE ALABAMA ORIGINS OF THE 1965 VOTING RIGHTS ACT (2007).
399. Id. at 43.
400. Id.
401. For example, Louisiana enacted a statute in 1962 requiring registrars to create "an objective test of citizenship", which required prospective voters to answer civics knowledge questions. United States v. Louisiana, 225 F. Supp. 353, 392 (E. D. La. 1963).
402. Indeed, allowing some blacks to register helped local registration boards stay out of federal court. See LAWSON, supra note 236, at 88.
403. See, e.g., id. at 89.
404. E.g., Louisiana v. United States, 380 U. S. 145, 150 (1965) (affirming the invalidation of Louisiana's "interpretation test [that]... vested in voting registrars a virtually uncontrolled discretion");
405. see Owen M. Fiss, Gaston County v. United States: Fruition of the Freezing Principle, 1969 SUP. CT. REV. 379, 382 (1969).
406. See Bruce Ackerman & Jennifer Nou, Canonizing the Civil Rights Revolution: The People and the Poll Tax, 103 NW. U. L. REV. 63, 72 (2009) (describing President Roosevelt's efforts to "purge conservatives from the [Democratic] party, denouncing them as representatives of 'Polltaxia'");
407. see also LAWSON, supra note 236, at 57.
408. See Ronnie L. Podolefsky, The Illusion of Suffrage: Female Voting Rights and the Women's Poll Tax Repeal Movement After the Nineteenth Amendment, 7 COLUM. J. GENDER &L. 185, 185 (1998).
409. See U. S. CONST, amend. XXIV.
410. Voting Rights Act of 1965, Pub. L. 89-110, § 10 (a) - (b), 79 Stat. 437, 442 ("Congress declares that the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition to voting.... the Attorney General is authorized and directed to institute forthwith in the name of the United States such actions, including actions against States or political subdivisions, for declaratory judgment or injunctive relief against the enforcement of any requirement of the payment of a poll tax as a precondition to voting");
411. see Ackerman & Nou, supra note 262, at 110 (arguing that the anti-poll tax provisions of the VRA reflect a '"New Deal-Civil Rights' synthesis").
412. Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, 84 Stat. 314;
413. Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, 89 Stat. 400.
414. See 42 U. S. C. § 1973 aa (a) (2006). The term "test or device" includes literacy tests, educational requirements, knowledge tests, moral character tests, and vouching requirements.
415. See id. § 1973aa (b).
416. See Voting Rights Act of 1965 § 5 (enjoining tests and devices in covered jurisdictions only).
417. See KEYSSAR, supra note 235, at 274.
418. Harper v. Va. Bd. of Elections, 383 U. S. 663, 670 (1966).
419. The broad holding also invalidated pauper exclusions, which still then existed in at least ten states. See KEYSSAR, supra note 235, at 271.
420. See Jane S. Schacter, Unenumerated Democracy: Lessons from the Right to Vote, 9 U. PA. J. CONST. L. 457, 462-64 (2007) (Despite "blatant evidence of racial intent", the Court "declined to take [the]... more well-established[] path [of] striking down the poll tax as a form of race-based voting discrimination. One might reasonably read the Court's failure to do so as reflecting an interest in elaborating a more general right of political equality.").
421. See City of Phoenix v. Kolodziejski, 399 U. S. 204 (1970);
422. Cipriano v. City of Houma, 395 U. S. 701 (1969).
423. See Kramer v. Union Free Sch. Dist., 395 U. S. 621 (1969).
424. See Carrington v. Rash, 380 U. S. 89 (1965).
425. The 1970 Voting Rights Act Amendments also attempted to enfranchise eighteenyear-olds. See Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, § 6, 84 Stat. 314, 318.
426. When the Court ruled that Congress had the power to do this only for federal elections, Oregon v. Mitchell, 400 U. S. 112, 117-18 (1970) (plurality opinion)
427. Congress quickly followed up with the 26th Amendment, enfranchising eighteen-year-olds in all elections, which the states ratified in 1971. U. S. CONST, amend. XXVI, § 1.
428. Voting Rights Act Amendments of 1970 § 6. The 1970 Amendments prohibited states from imposing residency requirements longer than thirty days (and allowed those who move within thirty days of an election to cast an absentee ballot at their previous residence). Id.
429. The Court not only upheld this restriction, see Oregon v. Mitchell, 400 U. S. at 147-50
430. but went on to invalidate state laws restricting the franchise in state elections to one-year residents, see Dunn v. Blumstein, 405 U. S. 330, 332-33 (1972).
431. KEYSSAR, supra note 235, at 281-82.
432. Id. at 282.
433. Kramer v. Union Free Sch. Dist., 395 U. S. 621, 627 (1969). The Court should probably have said: each resident adult citizen.
434. Lassiter v. Northampton Cnty. Bd. of Elections, 360 U. S. 45, 51 (1959). Richard Pildes has argued perceptively that Lassiter was not necessarily inconsistent with the Court's 1966 decision to strike down a poll tax in Harper because some justices viewed poll taxes (wealth) as an impermissible reason for the government to restrict the franchise but literacy (competence) as a permissible reason.
435. See Pildes, supra note 8, at 741-44. However, that view turned out to be a transitional one. The universalist turn swept away both of these justifications for restricting the franchise because either one abridged a fundamental right of citizens.
436. See Kramer, 395 U. S. at 625-26.
437. U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 783 (1995) (holding that states may not impose qualifications for federal office beyond those enumerated in the Qualifications Clause: age, citizenship, and residency).
438. See U. S. CONST, amend. XXVI; Dunn v. Blumstein, 405 U. S. 330 (1972);
439. Carrington v. Rash, 380 U. S. 89 (1965). In 1993, Congress eliminated one of the few remaining ways residency could disenfranchise by requiring that citizens who move within thirty days of election day, and therefore miss the registration deadline at their new location, be allowed to vote absentee at their former residence.
440. See 42 U. S. C. § 1973aa-1 (e) (2006).
441. Oddly, however, this rule fixes the problem only for presidential elections. Id.
442. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) made it a federal crime for aliens to vote in federal elections but permitted states and localities to authorize aliens to vote in nonfederal elections if the votes are "conducted independently."
443. See Illegal Immigration Reform and Immigrant Responsibility Act § 216 (a), 18 U. S. C. § 611 (a). Some localities indeed permit alien voting in local elections.
444. See PETER H. SCHUCK, CITIZENS, STRANGERS, AND IN-BETWEENS: ESSAYS ON IMMIGRATION AND CITIZENSHIP 187-88 (1998).
445. This formulation is consistent with the historical pattern of states enfranchising declarant aliens through the 1920s: in general, those states were arguably treating aliens who declared their intention to become U. S. citizens as state or local citizens for voting purposes. See Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391, 1397-417 (1993). (Pubitemid 24815057)
446. Harper v. Va. Bd. of Elections, 383 U. S. 663, 686 (1966) (Harlan, J., dissenting).
447. He took the view that these modem egalitarian notions should be a matter of legislative change rather than fundamental constitutional rights. Id. at 680-81.
448. The majority disagreed. Id. at 666, 670.
449. But either way, the intellectual tide had turned. Justice Black, who took Justice Harlan's side, was similarly moved to note that he "share[d]" "the Court's deep-seated hostility and antagonism... to making payment of a tax a prerequisite to voting." Id. at 677 (Black, J., dissenting).
450. See, e.g., Voting Rights Act § 2, 42 U. S. C. § 1973 (imposing liability for racial vote dilution);
451. supra notes 43-47 and accompanying text (discussing the group-based character of the harm of vote dilution).
452. These are not my subject here. More recent statutes such as the Help America Vote Act and the National Voter Registration Act have built a more universalist model of voting rights protection. See Richard H. Pildes, The Future of Voting Rights Policy: From Anti-Discrimination to the Right to Vote, 49 HOW. L. J. 741, 743 (2006).
453. Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, § 201, 89 Stat. 400, 400.
454. Gerald R. Ford, Remarks upon Signing a Bill Extending the Voting Rights Act of 1965, Aug. 6, 1975, 2 PUB. PAPERS 1118 (1975).
455. See supra notes 206-08 and accompanying text.
456. YOUNG, supra note 206, at 6.
457. 541 U. S. 509, 513 (2004). Specifically, it repeatedly discussed evidence that states had placed barriers in the way of the voting rights of people with disabilities.
458. See id. at 525, 529, 530, 534 (discussing evidence that states have imposed barriers on the voting rights of people with disabilities as perhaps the leading item in the evidence supporting the Court's holding that Title II of the ADA was a valid exercise of Congress's powers under section 5 of the Fourteenth Amendment).
459. Id. at 536 (Ginsburg, J., concurring).
460. Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, § 203, 89 Stat. 400, 402;
461. Voting Rights Amendments of 1982, Pub. L. No. 97-205, § 4, 96 Stat. 131 (extending § 203).
462. Pub. L. 98-435, 98 Stat. 1678
463. (codified at 42 U. S. C. § 1973ee-l to ee-3 (Supp. 1987)) (providing for registration and polling location accessibility and voting aids).
464. Pub. L. 103-31, 107 Stat. 77
465. (codified at 42 U. S. C. § 1973gg-5 (Supp. 1994)) (providing for voter registration by agencies serving people with disabilities).
466. The right to vote is also clearly covered under Title II of the ADA. See 42 U. S. C. § 12132 (2006) (barring discrimination by public entities on the basis of disability).
467. See generally Michael E. Waterstone, Lane, Fundamental Rights, and Voting, 56 ALA. L. REV. 793, 824-44 (2005) (explaining the application of the ADA to voting and arguing that, after Lane, federalism should present no bar to enforcing the ADA against states to protect voting rights).
468. See, e.g., Pitts v. Black, 608 F. Supp. 696, 708 (S. D. N. Y. 1984) (striking down under the Equal Protection Clause New York's election law that had prevented homeless individuals without residential addresses from registering to vote);
469. Collier v. Menzel, 221 Cal. Rptr. 110, 112, 117 (Cal. Ct. App. 1985) (holding that the Equal Protection Clause required registrar to accept registrations from homeless voters listing a city park as their residence).
470. See 11 C. F. R. § 9428.4 (a) (2) (2010).
471. See Tulin Ozdeger & Jewel Baltimore, Homeless but Not Voiceless: Protecting the Voting Rights of Homeless Persons, 40 CLEARINGHOUSE REV. J. POVERTY L. & POL'Y 313, 313 (2006).
472. Jennine Miller & Peter Gonzales, "I Matter! I Vote!": Overcoming the Disenfranchisement of Homeless and Formerly Homeless Voters, 11 TEMP. POL. & CIV. RTS. L. REV. 343, 353 (2002).
473. Id.
474. Barbara Armstrong, The Mentally Disabled and the Right to Vote, 27 HOSP. & COMMUNITY PSYCHIATRY 577, 577 (1976).
475. Id.
476. (quoting Robert Plotkin, Attorney, Mental Health Law Project).
477. See 42 U. S. C. § 1973gg-6 (a) (3) (B) (2006).
478. This way of drawing this line, upon which I cannot improve, is Pam Karlan's. See Pamela S. Karlan, Framing the Voting Rights Claims of Cognitively Impaired Individuals, 38 MCGEORGE L. REV. 917, 925 (2007).
479. Id.
480. The landscape looked very different in the late 1970s. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U. S. 432, 464 (1985) (Marshall, J., concurring in the judgment in part and dissenting in part) ("As of 1979, most States still categorically disqualified 'idiots' from voting, without regard to individual capacity and with discretion to exclude left in the hands of low-level election officials.");
481. Note, Mental Disability and the Right to Vote, 88 YALE L. J. 1644, 1645-46 & n. 7-15, 1658 n. 81 (1979) (providing the survey cited by Justice Marshall in Cleburne). Still, a surprising number of older, bad laws remain in place.
482. See Jennifer A. Bindel, Note, Equal Protection Jurisprudence and the Voting Rights of Persons with Diminished Mental Capacities, 65 N. Y. U. ANN. SURV. AM. L. 87, 92-97 (2009).
483. See Kingshuk K. Roy, Sleeping Watchdogs of Personal Liberty: State Laws Disenfranchising the Elderly, 11 ELDER L. J. 109, 113-20 (2003).
484. See Karlan, supra note 306, at 923.
485. Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886);
486. see, e.g., City of Mobile v. Bolden, 446 U. S. 55, 115 (1980) (Marshall, J., dissenting);
487. Dunn v. Blumstein, 405 U. S. 330, 336 (1972);
488. Reynolds v. Sims, 377 U. S. 533, 562 (1964).
489. Fiss, supra note 261, at 440. Nonetheless, this claim about voting rights and political power has served as a powerful argument for extending the franchise.
490. See Martin Luther King, Jr., Give Us the Ballot-We Will Transform the South, Speech at the Lincoln Memorial During the Prayer Pilgrimage for Freedom (May 17, 1957)
491. in A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS AND SPEECHES OF MARTIN LUTHER KING, JR. 197, 197 (James Melvin Washington ed., 1986) ("Give us the ballot and we will no longer have to worry the federal government about our basic rights.").
492. SHKLAR, supra note 200, at 49 (emphasis added).
493. Speech by Lucas P. Thompson to the Virginia Convention (Nov. 20, 1829), in DEMOCRACY, LIBERTY, AND PROPERTY: THE STATE CONSTITUTIONAL CONVENTIONS OF THE 1820's, at 395, 399-400 (Merrill D. Peterson ed., 1966);
494. see also SHKLAR, supra note 200, at 50.
495. This part of the old argument I am tracing is the part that is least modern. Modern ideas of human rights demand that all persons, not only citizens, are rights bearers.
496. See supra note 192 and accompanying text.
497. See SHKLAR, supra note 200, at 27.
498. Miller & Gonzales, supra note 301, at 353.
499. Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 952 (7th Cir. 2007) (Posner, J.)
500. aff'd, 553 U. S. 181 (2008).
501. See SHKLAR, supra note 200, at 38.
502. Ellen Katz offers an ominous reading of Crawford and López Torres on this point. She argues that both decisions "concentrate on formal legal access, with little concern for the practical burdens that arise under the system." Ellen Katz, Withdrawal: The Roberts Court and the Retreat from Election Law, 93 MINN. L. REV. 1615, 1631 (2009) (citation omitted). It remains to be seen whether this focus, so characterized, will guide future cases.
503. Anderson v. Celebrezze, 460 U. S. 780, 789 (1983) (stating that the weight of a burden on the right to vote depends on both "the character and magnitude of the asserted injury").
504. * 7 (Ga. Mar. 7, 2011) (finding the burden of a photo identification law to be "minimal, reasonable, and nondiscriminatory" in part because "an elector who does not wish to obtain a free photo ID can vote by absentee ballot by mail")
505. *9 (Benham, J., dissenting) (arguing against this conclusion because a voter has "the right to be among one's fellow citizens at the polling precinct and to openly exercise his or her right to participate in a democracy" and arguing that "[t]he fact that one does not have the wherewith-all to obtain a government-issued photographic identification should not relegate him or her to casting his or her ballot in secret and in absentia").
506. Assume there is no election-day registration.
507. Cf. Yoshino, supra note 211, at 774-76, 792-97 (arguing that liberty-based dignity claims can serve as a response to courts' anxieties about recognizing new group-based equality claims).
508. Pildes, supra note 8, at 729.
509. Id.
510. See supra notes 13-19 and accompanying text.
511. Justice Breyer's dissenting opinion in Vieth is perhaps the best example of a rare judicial attempt to address a "serious democratic harm" directly. Vieth v. Jubelirer, 541 U. S. 267, 355 (2004) (Breyer, J., dissenting).
512. See supra notes 113-14 and 178 and accompanying text.