Academic

More Thoughts on Crawford

By Calvin Massey

Critics of the Court's opinion in Crawford are likely to assert that the Court turned a blind eye to the actual purposes of the voter ID law, which they claim is to deter people who lack photo ID from voting.  Those people are disproportionately elderly and poor, the critics say, and they are likely to vote Democratic, so the whole thing is a partisan effort to disenfranchise a bloc of Democratic voters.  The fact that there have not been any proven instances of voter impersonation in Indiana lends weight to this charge, argue the critics. 

This criticism is founded on the assumption that the Court should ignore facially legitimate reasons for such a law, and instead impute malignant intent to the Indiana legislature.  Alternatively, the critics will argue that the law should be voided because of its effects.  If effects are to be the measure, a ruling of facial invalidity is surely error, because there is not yet any proof of its effects.  And If purpose is to be the measure, the critics argue, in essence, for a reversal of the principle articulated in O'Brien and elsewhere that a law that is otherwise constitutionally valid will not be struck down simply because there is a forbidden purpose behind its enactment.  There are, of course, exceptions to this principle, particularly when it comes to Establishment Clause cases (think of Edwards v. Aguillard or Wallace v. Jaffree, or McCreary County), but they are exceptions.  Crawford's critics will need to articulate why that exception ought to apply here. 

Disclaimer:  I have written on the entire topic of when purpose or effects should be the touchstone of constitutional validity (59 S. Car. L. Rev. 1 (2007)), so I have an axe to grind.

Full post as published by The Faculty Lounge on April 28, 2008 (boomark / email).