Democracy-Enhancing Judicial Review

Jack Balkin makes an excellent point here. Defenses of the Supreme Court upholding the Indiana voter ID law claim that the requirement will somehow be part of a political bargain to improve access to voting, which run into the obvious problem that there’s no evidence whatsoever of such a bargain in Indiana, or that erroneous voter perception of voter fraud stands in the way of increasing voter access if the legislature wants to do it. (Indiana made no effort to respond to actual abuses of absentee balloting, because that increased access benefits Republicans.)

Crawford is a case where modest judicial review would actually facilitate democracy: broadening access of powerless groups to the political process is where judicial review is at its most defensible. Souter and Breyer’s dissents — properly — did not rule out Voter ID laws regardless of the context. If the restrictions were actually tied to efforts to increase voter access, or there were actual evidence that in-person vote fraud was a problem, this would be a different case. But absent such balancing state interests, permitting Indiana to burden the ability of the most powerless people in the state to vote for reasons of political self-dealing rather than to address serious state interests is bad for democracy.

The other thing to add is that the fact that claiming that only a relatively small, particular (and especially politically powerless) class of people lacks access to photo IDs justifies facially upholding the law is rather strange. As I’ve said with respect to similar arguments made to justify arbitrary limitations on a woman’s right to choose, this logic makes “inequitable effects an argument in favor of the constitutionality of such regulations.” This argument seems to stand Carolone Products on its head: burdens on fundamental rights are more acceptable as long as only discrete and insular minorities are affected. This is, to put it mildly, an unattractive conception of the role of judicial review.