Access to justice was the big loser in the US Supreme Court on Monday when the court upheld Indiana’s voter identification law, Crawford v. Indiana. Beyond the immediate impact of the case, depressing voter participation because of the virtually unheard of “problem” of someone going to a polling place in person and using someone else’s identity to vote, the case is more disturbing because it is part of a pattern. SCOTUS is closing the doors to the courthouse in election law cases by declining to hear “facial” constitutional challenges in voting rights cases.

Here’s some background. In the modern court era the most important challenges to voting laws have been "facial" ones. Since it is so hard to undo an election, courts have traditionally not waited until an election law actually interferes with voting at an election in order to hear a challenge and impose a constitutional standard. A facial constitutional challenge contends that an election law is unconstitutional "on its face," no matter how applied, and therefore can't be applied against anyone .For example, in 1966, SCOTUS struck down Virginia's poll tax, which was $1.50 to vote. Harper v. Virginia Board of Elections. Ability to pay a tax has no rational relationship to a voter's qualifications and therefore is improper. The Court did not require proof that a poor person had been denied the right to vote for lack of payment, not did it say it was constitutional to charge $1.50 to vote, if a voter could afford it.

In the Indiana case, the Court has just come up with an opposite result. It has said it will wait for an “as applied” challenge. That means if some voter is actually denied the right to vote for lack of money to secure an ID, and can “prove” she couldn’t afford ID, that voter can sue after the election.

SCOTUS did the same thing in Washington State Grange v. Washington State Republican Party. It invited the parties to come back with an “applied” challenge if the blanket primary system caused voter confusion.

The reasoning the Court used and the result–see you later, voter--fly in the face of the past 50 years of vigilant, timely protection of voting rights. Commentators suggest that the Bush appointees, especially Chief Justice Roberts, is starting a long-term strategy of voter suppression.

The rejection of facial challenges creates a double standard and gives the states a free rein to come up with flimsy rationales to hinder voting. In this new system, when a voter brings an early, facial challenge, SCOTUS says that voter has not yet been denied the right to vote, so the court finds no “evidence” of a burden on constitutional rights. The state then can use the wildest speculation to justify the regulation since plaintiff has not “proved” harm.

But the the voter who wants to challenge a law must come back later and have actual evidence of confusion or disenfranchisment and cannot just suggest an obvious and unavoidable risk of harm.

In the Indiana ID case, for example, Justice Stevens says that there is evidence of fraud to justify a voter ID requirement, but the “evidence“ cited of fraud in Indiana under the existing laws is–nothing, The only evidence is an election in 1868 (footnote 11) and a single case of in-person impersonation voter fraud in a recent Washington state race (fn. 12).

This trend of making election law cases into “as applied” challenges is a sad departure from the SCOTUS which protected voting.