Inventing the "Right to Vote" in Crawford V. Marion County Election Board‪.‬

Although it has become almost axiomatic that the franchise is a "fundamental right" (1) possessed by all Americans, it remains very much open to question whether the Constitution was ever intended to bestow the broad-based right envisioned by the Supreme Court. Those wary of judicial imposition of normative convictions under the guise of pronouncing the law (2) indeed have ample reason to question the Court's relatively recent discovery of this right in the Equal Protection Clause of the Fourteenth Amendment. Although the Court's latest examination of the scope of the right to vote in Crawford v. Marion County Election Board (3) represents a sensible exercise of judicial restraint in response to states' efforts to combat and deter voter fraud, its reasoning exposes the potential for arbitrariness and activism inherent in the Court's current voting rights jurisprudence. The Crawford Court addressed a facial constitutional challenge to an Indiana statute known as "SEA 483," (4) which requires individuals voting in person to present a government-issued photo identification at the polling place. (5) The law does not apply to absentee votes cast by mail or to voters living in state-licensed facilities, such as nursing homes. (6) In addition, those lacking the required identification are entitled to cast a provisional ballot, which is counted if the voter produces such identification at the circuit court clerk's office within ten days. (7) The statute also contains exemptions for indigent persons as well as for those who hold a religious objection to being photographed. (8) Voters obtaining the photo identification for the first time are responsible for any costs incurred in gathering the necessary preliminary documentation (usually a birth certificate or a U.S. passport); (9) the photo identification itself, however, is available free of charge at branches of the state's Bureau of Motor Vehicles. (10)