There is no "right to vote" in the United States Constitution.
This is a fact that surprises many people, given the centrality of democracy to our national ethos. But it's true. The Constitution prohibits certain specific types of restrictions on the franchise -- for example, limits based on race (15th Amendment), sex (19th amendment), or, in federal elections, failure to pay a poll tax (24th Amendment). However, there is no general, textual protection for a right to vote.
That said, the Supreme Court has recognized some heightened scrutiny that applies to limitations on suffrage. The "interest of the State when it comes to voting," the Supreme Court held in 1966, "is limited to the power to fix qualifications." The Court in that case concluded that wealth was not a valid qualification the state could impose on the franchise -- the state has no interest in preventing an otherwise qualified voter from casting a ballot because of his or her income. The broader principle is that the state has no valid interest in voter suppression -- preventing validly qualified voters from casting ballots. By contrast, a law which is related to enforcing a legitimate qualification -- say that the voter who presents themselves at the poll is in fact who they say they are -- may be permissible.
This distinction has been critical in more recent litigation over voter ID laws. Critics say that these laws are about voter suppression -- they are attempts to prevent lawful and qualified voters from casting their ballots by throwing up extraneous and burdensome obstacles in their path. Proponents, at least officially, deny any such motive -- they contend that such laws are simply about ensuring "election integrity" by preventing fraudulent votes from being cast. Any resident who actually is a valid voter should still be able to cast their ballot (all they need to do is show a valid ID! How hard is that?).
Now, it's always been evident that the latter, "anti-fraud" justification was a lie. The alleged "fraud" was essentially non-existent; and demanding voter ID wouldn't generally even forestall the tiny amount of fraud that did occur. But when the Supreme Court later upheld laws like Indiana's voter ID statute in Crawford v. Marion County against a facial challenge, it relied on this distinction between wrongfully trying to disenfranchise qualified voters and the legitimate state authority to fix qualifications. Voter ID laws are permissible because they are not about blocking qualified voters from voting, they are about ensuring that only qualified voters vote.
Recently, Indiana modified its voter ID law to prevent student IDs (but not VA, military, or tribal IDs) from being used as "voter ID". A district court had enjoined the law, ruling that it would unconstitutionally suppress the votes of young Indianans (and to reiterate -- young Indianans who are entirely legitimate and valid voters in Indiana elections). Earlier today, though, the Seventh Circuit stayed that injunction under the so-called Purcell principle, which cautions against court injunctions that change election rules too close to election day (ballots in Indiana's primary elections have already been mailed out).
The district court analyzed Purcell but concluded it did not apply, given that Indiana had permitted student IDs as a valid form of ID for decades and so would have to do nothing more complicated than revert to the system it had been using in every election up to the present one. But the Seventh Circuit disagreed, and in doing so it said something very revealing:
We view the risk of disruption to Indiana’s primary election as very serious. In no uncertain terms, the district court’s injunction will alter who can cast a ballot in this election (emphasis added).
This is a very revealing line. In theory (very, very naive theory), Indiana's law should not "alter who can cast a ballot in this election." The students who were eligible to vote before the ID law was passed are still fully eligible to vote after the law was passed. All Indiana is doing is tightening up security to ensure that only eligible voters vote -- but these students are eligible voters. In practice, of course, the court is absolutely right: some voters -- qualified, eligible voters -- who would be able to satisfy Indiana's voter ID law with a student ID will no longer be able to do so under the new rules, and so will not be able to cast a ballot. The function of the law is not to simply fix legitimate qualifications -- it is to prevent eligible, lawful voters from voting. The critics were right all along.
Worse, the court's logic here manifestly treats as an injury (a "serious" injury; a "disruption" demanding emergency judicial action) the inability of Indiana to suppress valid, legitimate votes. Indiana did not change who was formally eligible to vote in its elections, meaning that the class of voters whose ability to "cast a ballot in this election" will be altered is comprised entirely of legitimate, registered voters. That cannot be stressed enough. One could imagine Purcell analysis that goes entirely to the procedural difficulties of changing voter ID eligibility rules midstream (such an argument might be plausible given that ballots had already been mailed, though the district court found that all Indiana would have to do to come into compliance is delete a single line in its election guidance documents). But that's not what the panel said. The court's articulation of the problem here is not one of administrative strain. The court's problem, "in no uncertain terms", is that certain eligible, registered voters who would be prevented (in spite of their eligibility) from casting a ballot if the student ID prohibition was in effect would now be allowed to cast a ballot in the primary. People who are eligible to vote will now not be blocked from voting. In essence, the court treats voter suppression as tantamount to a compelling state interest -- a stunning perversion of even our meager "right to vote" jurisprudence.
One might say I am reading too much into a single line in a hastily-filed emergency ruling. But I would say the Seventh Circuit's opinion is the epitome of a judicial Kinsley gaffe. Everybody knew that voter ID laws were not about concocted concerns about "fraud" but rather about trying to suppress lawful votes from Democratic constituencies. The Seventh Circuit just finally got around to admitting it.
