Amdt14.S1.10.7.4 Voting and Ballot Access

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Treatment of indigency in a civil type of fundamental interest analysis came in Harper v. Virginia Bd. of Elections, 1 in which it was held that a State violates the Equal Protection Clause . . . whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. The Court emphasized both the fundamental interest in the right to vote and the suspect character of wealth classifications. [W]e must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race . . . are traditionally disfavored.2

The two factors – classification in effect along wealth lines and adverse effect upon the exercise of the franchise – were tied together in Bullock v. Carter3 in which the setting of high filing fees for certain offices was struck down under a standard that was stricter than the traditional equal protection standard but apparently less strict than the compelling state interest standard. The Court held that the high filing fees were not rationally related to the state’s interest in allowing only serious candidates on the ballot because some serious candidates could not pay the fees whereas some frivolous candidates could and that the state could not finance the costs of holding the elections from the fees when the voters were thereby deprived of their opportunity to vote for candidates of their preferences.

Extending Bullock, the Court held it impermissible for a state to deny indigents, and presumably other persons unable to pay filing fees, a place on the ballot for failure to pay filing fees, however reasonable in the abstract the fees may be. A state must provide such persons a reasonable alternative for getting on the ballot. 4 Similarly, a sentencing court in revoking probation must consider alternatives to incarceration if the reason for revocation is the inability of the indigent to pay a fine or restitution. 5

In Crawford v. Marion County Election Board, 6 however, a Court plurality held that a state may require citizens to present a government-issued photo identification in order to vote. Although Justice Stevens' plurality opinion acknowledged the burden imposed on voters who cannot afford . . . a birth certificate (but added that it was not possible to quantify . . . the magnitude of the burden on this narrow class of voters), it noted that the state had not required voters to pay a tax or a fee to obtain a new photo identification, and that the photo-identification cards issued by Indiana's BMV are also free.7 Justice Stevens also noted that a burden on voting rights, [h]owever slight . . . must be justified by relevant and legitimate state interests 'sufficiently weighty to justify the limitation,'8 and he found three state interests that were sufficiently weighty: election modernization (i.e., complying with federal statutes that require or permit the use of state motor vehicle driver's license applications to serve various purposes connected with voter registration), deterring and detecting voter fraud, and safeguarding voter confidence. Justice Stevens' opinion, therefore, rejected a facial challenge to the statute, 9 finding that, even though it was fair to infer that partisan considerations may have played a significant role in the decision to enact the statute, the statute was supported by valid neutral justifications.10 Justice Scalia, in his concurring opinion, would not only have upheld the statute on its face, but would have ruled out as-applied challenges as well, on the ground that [t]he Indiana photo-identification law is a generally applicable, nondiscriminatory voting regulation, and, without proof of discriminatory intent, a generally applicable law with disparate impact is not unconstitutional.11 Justice Souter, in his dissenting opinion, found the statute unconstitutional because a State may not burden the right to vote merely by invoking abstract interests, be they legitimate or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. . . . The Indiana Voter ID Law is thus unconstitutional: the state interests fail to justify the practical limitations placed on the right to vote, and the law imposes an unreasonable and irrelevant burden on voters who are poor and old.12

Footnotes

  1.  383 U.S. 663, 666 (1966). The poll tax required to be paid as a condition of voting was $1.50 annually. Justices Black, Harlan, and Stewart dissented. Id. at 670, 680.
  2.  383 U.S. at 668. The Court observed that the right to vote is too precious, too fundamental to be so burdened or conditioned. Id. at 670.
  3.  405 U.S. 134 (1972).
  4.  Lubin v. Panish, 415 U.S. 709 (1974). Note that the Court indicated that Bullock was decided on the basis of restrained review. Id. at 715.
  5.  Bearden v. Georgia, 461 U.S. 660 (1983).
  6.  128 S. Ct. 1610 (2008). Justice Stevens' plurality opinion was joined by Chief Justice Roberts and Justice Kennedy. Justice Scalia wrote a concurring opinion that was joined by Justices Thomas and Alito, and Justices Souter, Ginsburg, and Breyer dissented.
  7.  128 S. Ct. at 1622, 1621.
  8.  128 S. Ct. at 1616.
  9.  A facial challenge must fail where the statute has a plainly legitimate sweep. 128 S. Ct. at 1623 (internal quotation marks omitted).
  10.  128 S. Ct. at 1624. [A]ll of the Republicans in the [Indiana] General Assembly voted in favor of [the statute] and the Democrats were unanimous in opposing it. Id. at 1623.
  11.  128 S. Ct. at 1625, 1626.
  12.  128 S. Ct. 1627, 1643 (citations omitted).