







































Aisthesis      Volume 10,  201918

Crawford v. Marion County Election Board: An Assessment 
through the Frame of Democratic Theory

by Madeline Leibin

Introduction
 Within democratic theory, the proper relations 
between a state and its citizens has spurred 
considerable debate. A common method of 
assessing this has been to situate boundaries—that 
is, to delineate borders between the domain of the 
governmental enterprise and that of the private 
individual with his or her respective interests and 
initiatives. Philosopher John Rawls established a 
now-normative tradition of this sort in his appeal 
to political liberalism. Specifically, he states that the 
state ought to refrain from favoring some citizens’ 
conceptions of the good life at the expense of 
other citizens’ understandings.1 The government 
must maintain a position of neutrality, and, 
accordingly, must only pursue policies which can 
equitably accommodate all possible preferences and 
partialities.2 In the United States, this standard has 
been sacralized in the Fourteenth Amendment of 
the Constitution in the right to an “equal protection 
of the laws.”3 It has been upheld in hundreds of 
United States Supreme Court rulings, demonstrating 
remarkable salience even across a wide variety of cases 
and contestations. Notably, most rulings focused on 
consequent disparities between the treatment of 
citizens as a matter of political neutrality, rather than 
on any individual citizen’s consequent burdens from 
any political actions. This focus on the character of 
the governmental action (rather than on its extent) 
is of utmost importance in that it offers to generate 
better outcomes for lived society, where it is observed 
that citizens mind encumbrances only to the extent 

1 John Rawls, Political Liberalism, The John Dewey Essays 
in Philosophy, No 4. (New York: Columbia University 
Press, 1993), 145. 
2 Some might hold that Rawlsian philosophy does not 
encourage blank neutrality, but rather, a multi-partiality 
which recognizes internal pluralism.
3 U.S. Const. amend. XIV, sec. 1.

that they are not discriminately encumbered.4 I 
contend that this is especially true in considering a 
central democratic process: electoral procedures. It 
has been established in the long legal trajectory of 
the franchise that voters desire equal rights, those 
Fourteenth Amendment securements of “one vote, 
[per] one person.”5 In this paper, I will extend this 
reasoning to the recent voting-rights case, Crawford 
v. Marion County Election Board (2008). In the 
case, the United States Supreme Court decided 
that voter (photo) identification requirements in 
Indiana were constitutional. However, they did so 
under considerations of undue burden, rather than 
equal protection. This incongruent judicial thinking 
yielded an even more discordant result. In this 
paper, I will canvass the case and reframe it within 
the more appropriate Fourteenth Amendment 
analysis, utilizing the stare decisis of Yick Wo v. 
Hopkins (1886) and Harper v. Virginia State Board 
of Elections (1966). I will ultimately imply that, 
under this evaluation, the decision would have been 
unaccepting of identification requirements as they 
would pose a concern about political neutrality in 
terms of classist discrimination. Such a challenge is, 
in my view, absolutely necessary in order to secure 
proclaimed American democratic ideals. 

4 It is noted that this distinction alone could ferment a 
significant debate within political philosophy. One might 
claim, in counterargument, that (1) it is just as important 
to demarcate the boundaries of an individual’s privacy 
against personal investigation (such as policing pat-downs 
or car-searches) by the State as a general standard; and (2) 
that this pertinence is not enhanced or otherwise elevated 
by a concern that certain individuals or communities 
(those of color, for instance), will be disproportionately 
affected by such State-Citizen regulative boundaries. 
For this paper’s purposes, I argue that discriminatory 
treatment between citizens is more compelling than a 
citizen’s theoretical burden in this specific case and similar 
cases.
5 Reynolds v. Sims, 377 U.S. 533 (1964).



Crawford v. Marion County Election Board

Aisthesis      Volume 10,  201919

Case Overview: Crawford v. Marion County 
Election Board (2008)
 To begin, I will examine Crawford v. Marion 
County Election Board (2008). The case responds 
to the 2005 Indiana Legislature’s Election Law 
SEA 483, colloquially called the “Voter ID Law.” 
Petitioners included the Indiana Democratic Party, 
Marion County Democratic Party, and several 
non-profit organizations representing the elderly, 
disabled, poor, and minority voters. Together, 
they alleged that the law violates the Fourteenth 
Amendment in its substantial burden on the citizens 
of Indiana. They dispute the government action as 
an invasive one, penetrating into the realm of the 
private citizen by mandating certain imperatives 
(namely, the obligation to obtain and later present 
a form of photo identification). Such an accusation 
necessitates the legal calculus of determining 
whether the State’s actions were justified by some 
relevant and legitimate interests, which could be 
“sufficiently weighty to justify” the citizens’ burden.6 
In the Majority Opinion, Justice Stevens refers to this 
as “a unique balancing analysis that looks specifically 
at a small number of voters who may experience 
a special burden under the statute and weighs 
their burdens against the State’s broad interests in 
protecting election integrity.”7 In recognition of this 
task, he lists those “broad interests” of the Indiana 
Legislature, which include the management of voter 
fraud (comparable to the aforementioned election 
integrity), which concurrently inspires public 
confidence and participation in the election process. 
According to Stevens, democratic participation 
is held to have “independent significance,” which 
ultimately quashes any worries about voters’ 
burdens, and thus upholds the Indiana voter ID 
law. The Concurring Opinion additionally holds 
that the citizens’ protest is minor in comparison 
to the overarching governmental objective. Thus, 
both analyses purport to follow in the precedent of 
Burdick v. Takushi (1992), in which “the rigorousness 
of [the Supreme Court’s] inquiry into the propriety 
of a state election law depends upon the extent to 

6 Norman v. Reed, 502 US 279 (1992)—quoted in 
Crawford v. Marion County Election Board, 553 US 181 
(2008).
7 Crawford v. Marion County Election Board, 553 US 181 
(2008).

which a challenged regulation burdens First and 
Fourteenth Amendment rights”; that is, they both 
leverage a comparative, “balancing” analysis.8,9

 Before I analyze the central concerns of the case 
through the lens of the Fourteenth Amendment, it 
is important to note a few vulnerabilities within the 
original analysis of the case. In the Majority Opinion, 
Justice Stevens elevates the Indiana Legislature’s 
interest by matching it with two federal bills, the 
National Voter Registration Act of 1993 and the 
Help America Vote Act of 2002. He indicates that 
while these two initiatives did not expressly require 
Indiana to develop their electoral requirements, 
the Indiana Legislature was likely inspired by their 
effort to stimulate civil participation. Justice Stevens 
thus concludes that the Indiana effort is related 
to the enhancement of democratic engagement. 
This conclusion is questionable on conceptual and 
practical grounds. Firstly, it is concerning that Justice 
Stevens assumes the court’s efforts are definitively 
related to preceding legislative endeavors. In fact, 
they may be actually consequences of other unrelated 
and even potentially contrary motivations. Beyond 
this, the ruling does not address the practicalities of 
the Indiana voting situation. Additional prerequisites 
for any activity make it more difficult to complete 
that activity. While Indiana’s voter ID laws, whether 
justified or not, clearly make civil participation less 
accessible, the Majority opinion claims that the 
dominating state interest is in broadening the exercise 
of the franchise. Thus, there are clear discrepancies in 
Stevens’ assessment of the state’s motivations.10 On the 
opposite end, there are also obvious inconsistencies 
in reference to the “citizen” and the corresponding 

8 Burdick v. Takushi, 504 U.S. 428 (1992).
9 This practical calculus of “balancing” efforts fits well 
within contemporary intellectual discussions on rights. 
Philosopher James Nickel, in his Making Sense of Human 
Rights, holds that basic human rights (taken to be plural) 
must be balanced between and against each other. This 
“balancing” prioritizes rights by any single individual, 
between two or more individuals, or between one or more 
individuals and their governing institutions.  
10 It also does not pursue any consequentialist thinking 
(reflections on the repercussions of such laws). However, 
this absence of consideration might be easily excused by 
upholding the legal doctrine that such consequentialism 
is unwelcome in judicial deliberation. 



Crawford v. Marion County Election Board

Aisthesis      Volume 10,  201920

burden. In the Majority Opinion, Justice Stevens 
oscillates between considering the burden upon 
three bodies: the whole Indiana citizenry, writ large; 
a portion of that populace, a “recognizable segment 
of potential eligible voters”; and the individual 
voter.11 Theoretically, the corresponding burden 
would be different on each of these levels, and so in 
failing to clearly reference one or another body, the 
Majority Opinion does a disservice to the potential 
dimensions of those burden(s). It also stifles the 
appellants’ ability to indicate appropriate correlative 
remedies, which, it is stated, “have not been properly 
demonstrated.”12 In his Concurring Opinion, Justice 
Scalia offers an alternative to this inconsistency 
by declaring the Indiana Legislation a “generally 
applicable, nondiscriminatory voting regulation,” 
which sets standards for the whole citizenry of 
the state. He goes on to specify that while “the 
Indiana law affects different voters differently, what 
petitioners view as the law’s several light and heavy 
burdens are no more than the different impacts of the 
single burden that the law uniformly imposes on all 
voters. To vote in person in Indiana, everyone must 
have and present a photo identification... The State 
draws no classifications.”13 To restate, Scalia holds 
that the burden is one distributed to the whole of 
the populace and is simply experienced differently 
by different voters. With the harm thus portrayed, 
Scalia deems it minimal and not significantly more 
challenging than the usual voting requirements. 
In this way, he concurs that the state’s interests are 
compelling and dominant. While this portrayal of 
the burden does give it a consistency that is absent 
in the Majority Opinion, it also invites a new level 
of assessment: the one available within a Fourteenth 
Amendment equal-protection analysis. 

Justification for Alternative Equal Protection 
Analysis
 At this juncture, one might question my 
motivation for such a shift in deliberation. If the 
United States Supreme Court understood the 
Indiana voter ID law to be justified under burden-
based constitutional considerations, why ponder it 

11 Crawford v. Marion County Election Board, 553 US 181 
(2008).
12 Ibid. 
13 Ibid. 

further under other clauses? To this query, I respond 
that such a discursive technique is of paramount 
importance to legal justifications. Oftentimes, a 
case will invite comments from multiple angles 
and, in pursuing such commentary, the Court 
is able to construct robust interpretations of the 
Constitution, filling in both hypothetical blanks 
and application-based queries through multiple 
analyses. Furthermore, often by referencing other 
aspects of the Constitution, one is empowered 
to take a multi-perspectival account of the issue 
at task. Consider, for instance, Justice Kennedy’s 
recent statements in the Gill v. Whitford (2017) oral 
arguments, that another constitutional provision 
might be utilized in consideration of partisan 
gerrymandering. He recommends shifting from the 
Fourteenth Amendment frame of analysis to that of 
the First Amendment. This would enable the Court 
to consider “not the permissibility of an enactment’s 
classifications, but whether a generally permissible 
classification has been used for an impermissible 
purpose.”14 Such an open-minded, considerate 
attitude toward jurisprudence indubitably fosters 
more developed, nuanced legal outcomes. And this 
can only bolster the legitimacy of the judiciary. 
Thus, it is certainly more than warranted to resituate 
Crawford within an explicit equal-protection 
analysis. 
 In his Concurring Opinion, Justice Scalia 
ultimately asserts that a voter’s claim of 
disproportionate treatment by some law does not 
yield the law’s unconstitutionality, as long as it is 
authored to be universally applicable. Put otherwise, 
without proof of discriminatory intent in its original 
articulation, no regulation can be challenged as 
violative of the Fourteenth Amendment. Is this 
true of equal protection precedent? Such a broad 
question would require a legal review of hundreds 
of cases, but I will attend to one case in particular 
which has become a cornerstone of equal protection 
thinking and a verified legacy of the judiciary. 
This case is Yick Wo v. Hopkins (1886). While one 
might be displeased by such a selection and might 
accuse it of being biased towards my ends, I retort 
that Yick Wo continues to be held as valid legal 
precedent, and, furthermore, is a guiding principle 
for American political philosophy. Such a choice is 

14 Vieth v. Jubelirer, 541 U.S. 267 (2004).



Crawford v. Marion County Election Board

Aisthesis      Volume 10,  201921

therefore not predisposed to any conclusions except 
those that are in line with our unique democratic 
culture. Yet, while the case is a very appropriate one 
in terms of the overarching political philosophy, 
its specific contents do not pertain to voting rights 
exclusively, and so I will also review a second case—
Harper v. Virginia Bd. of Elections (1966)—which 
more closely resembles the electoral contingencies 
and contestations at task. In fact, with its discussion 
of voting eligibility requirements, it is as close to the 
topic of voter identification eligibility requirements 
as conceptually possible. It is frequently cited 
within the voting rights domain, and it continues 
to hold stare decisis stature. After an investigation 
of both cases and their conclusions, I will calibrate 
their implications to reframe the consideration of 
Crawford. 
      
Yick Wo v. Hopkins (1886)
 Thus, to begin, Yick Wo v. Hopkins (1886) emerged 
in California after Chinese laundromat owners Yick 
Wo and Lee Wick were detained for their violation 
of a San Francisco City Ordinance, which required 
all “laundry-mats” [sic] in wooden buildings to hold 
a permit issued by the city’s Board of Supervisors. 
Wo and Wick sued, protesting the discriminatory 
distribution of those permits. Though 89% of 
“laundry-mat” businesses in wooden-buildings 
were owned by Chinese individuals, not a single 
one was given a permit by the Board. In light of 
such discriminatory administration, the appellants 
argued that their Fourteenth Amendment rights 
to equal treatment had been effectively denied.15 
Markedly, the ordinance itself was, in Justice Scalia’s 
terms, “a generally applicable, nondiscriminatory 
regulation”; it a perceivably reasonable requirement 
for operation within an industry and it applied to 
all relevant businesses within that domain.16 Does 
the prejudiced enforcement of the City Ordinance 
matter? In their unanimous ruling in Yick Wo, the 
Court concluded that it absolutely should. In the 
Opinion, author Justice Matthews concentrated on 
the regulation’s reality, and ruled that even if the 
law is impartial or even-handed in script, “if it is 
applied and administered by public authority with 

15 Yick Wo v. Hopkins, 118 U.S. 356 (1886).
16 Crawford v. Marion County Election Board 553 US 181 
(2008).

an evil eye and an unequal hand, so as practically 
to make unjust and illegal discriminations between 
persons in similar circumstances, material to their 
rights, the denial of equal justice is still within the 
prohibition of the Constitution.”17 Put otherwise, if 
a State Act is enforced in an equal fashion, the Act is 
justiciable as a Fourteenth Amendment concern in 
light of that execution. The ruling effectively denies 
Justice Scalia’s separation of written regulation and 
actual enforcement, as aforementioned in the Case 
Overview section. It is important to note that this 
ruling appealed to originalist sentiment, which 
argues that the original framers of the Constitution 
would have not entertained a political philosophy 
that allowed for such discriminatory administrative 
discretion. Rather, Justice Matthews wrote that the 
guiding principles espoused in the Constitution 
would have presupposed absolute— that is to say, 
both philosophical and practical—neutrality in 
State-Citizen relations. 

Harper v. Virginia Bd. of Elections (1966)
 Eighty years later, this principle was confirmed 
in the particular context of voting rights in Harper 
v. Virginia Bd. of Elections (1966). In Harper, the 
constitutionality of poll taxes in the state of Virginia 
was under deliberation. Ms. Annie Harper filed on 
behalf of herself and other affected citizens, arguing 
that access to the franchise should not be conditioned 
on one’s financial capacities. She further charged 
that such attention to wealth effectively violated the 
Equal Protection Clause, as it discriminately affected 
the poorer citizens and communities.18 In the 
Majority Opinion, the Court agreed. Justice Douglas 
further elevated the language of the infraction, 
stating that “whenever it [the State] makes the 
affluence of the voter or payment of any fee an 
electoral standard… it invidiously discriminates.”19 
That is, it not only mechanistically pursues unequal 
treatment of citizens, but it conscientiously acts 
in a harshly prejudiced manner. Such additional 
requirements were further described as “capricious” 
and “irrelevant.”20 It is important to note that these 
17 Yick Wo v. Hopkins, 118 U.S. 356 (1886).
18 Harper v. Virginia Bd. of Elections, 383 U.S. 663 
(1966).
19 Ibid. (Emphasis added)
20 Ibid. 



Crawford v. Marion County Election Board

Aisthesis      Volume 10,  201922

scathing statements were forwarded within a whole 
suite of landmark litigation about voting rights in 
the United States. Just two years earlier, Reynolds v. 
Sims (1964) had pronounced the rule of “one person, 
one vote,” which described the right to the franchise 
as intrinsic to citizenship. This elevated the matter: 
“since the right to exercise the franchise in a free and 
unimpaired manner is preservative of other basic 
civil and political rights, any alleged infringement 
of the right of citizens to vote must be carefully 
and meticulously scrutinized.”21 In application, this 
means that the claims of Ms. Harper—and those 
of the protestors of Indiana’s voter ID legislation—
ought be acknowledged. Yet, it does not seem that 
these claims were fully recognized in Crawford.
      
Fourteenth Amendment Application
 For analysis to be developed on this matter, it 
is important to respond to one additional counter-
argument about the two preceding cases and their 
applicability to Crawford. This is the contention 
that the two cases above are dated from 1886 and 
1966, respectively, and that this great temporal 
distance excuses them from bearing any relevance 
on the conditions within the 2008 case.22 If one 
remains committed to the legal “balancing” strategy, 
one might hold that the security of democratic 
participation is more endangered today than 
previously. Moreover, dicta in Harper would support 
that even the Fourteenth Amendment applicability 
might have shifted. Justice Douglas wrote that “the 
Equal Protection Clause is not shackled to the 
political theory of a particular era... Notions of what 
constitutes equal treatment for purposes of the Equal 
Protection Clause do change.”23 That is, interpretations 
of Fourteenth Amendment guarantees can evolve 
to meet the evolved socio-political norms and 
ideals.24 While this argument for adaptive capacity is 
21 Reynolds v. Sims, 377 U.S. 533 (1964).
22 In acknowledging the distance between Crawford and 
Yick Wo, it is pertinent to note that Plessy v. Ferguson 
(1896) largely negated what was established in Yick Wo 
very soon after its ruling. In many cases, the stare decisis 
does not hold, and the impact of Yick Wo is much more 
limited than one might have hoped. 
23 Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).
24 Note that the term “evolved” is used to indicate shifts 
which have progressed into the future, not necessarily im-
provement or linear progression.

sustained, I still hold that the standards established 
in the above cases are consistent with the current 
political philosophy of the Constitution and the 
cultural landscape. The consistent, broad-based 
expectation is of political neutrality, more or less as 
advocated by the Rawlsian doctrine. Consequently, 
these precedents continue to apply in full force and 
effect. In particular, the Yick Wo rule that the Court 
must consider administered realities of unequal 
justice, even if the rule is non-discriminatory on its 
face, must be applied to the present challenges of 
Crawford v. Marion County Election Board (2008). In 
Crawford, Justice Scalia claims oppositely that “the 
Fourteenth Amendment does not regard neutral 
laws as invidious ones, even when their burdens 
purportedly fall disproportionately on a protected 
class. A fortiori it does not do so here, [wherein] 
the classes are complaining of disparate impact.”25 
This claim is incompatible with the proper modus 
operandi of the Fourteenth Amendment precedent. 
Such incongruence is likely due to the misplaced 
judicial discourse around “balancing” State-Citizen 
positions; this, in practice, led to an overemphasis of 
the State’s interests, which were used to the neglect 
of the Citizens’ disparate impacts. In the Majority 
Opinion of Crawford, the esteemed “integrity and 
reliability of the electoral process itself ” were used 
to justify the voter ID legislation’s “even handed 
restrictions.”26 As aforementioned, per Yick Wo, 
the “even handed restrictions,” as discriminately-
handled, are actually unconstitutional. Furthermore, 
per Harper, the broader governmental promotion of 
“interest in civic responsibility” was not valid enough 
to override Fourteenth Amendment securities. In 
Harper, these claims failed the balancing instrument 
specifically because the citizen’s position was 
examined not only as a general burden, but as a fully 
Fourteenth Amendment equal protection concern. 
This could be similarly done in Crawford. In the 
Dissenting Opinion, Justice Souter notes that “The 
State’s requirements here, that people without cars 
travel to a motor vehicle registry and that the poor 
who fail to do that get to their county seats within 
10 days of every election, likewise translate into 
unjustified economic considerations uncomfortably 
close to the outright $1.50 fee we struck down 42 

25 Crawford v. Marion County Election Board, 553 US 181 
(2008).
26 Ibid.



Crawford v. Marion County Election Board

Aisthesis      Volume 10,  201923

years ago.” In other words, the Indiana voter ID 
law imposes wealth-based prejudices akin to those 
rejected in Harper. These constitute invidious, 
non-neutral State actions. When characterized as 
such, it is irrelevant how many citizens exactly were 
disenfranchised by the State’s de-privileging of their 
conception of the good. In the Crawford Majority 
Opinion, Justice Stevens estimated that only “around 
43,000 Indiana residents lacked a state-issued 
driver’s license or identification card,” and so would 
be disadvantaged. This obviously affected the burden 
under consideration and minimized any potential 
qualms. Alternatively, within equal protection 
deliberation, the extent or scale of the discrimination 
is not relevant—the fact that it exists is enough to 
warrant “careful and meticulous scrutiny,” and to 
ultimately rule the law unconstitutional.27

      
Conclusion and Implications
      Thus, it has been comprehensively demonstrated 
that the Fourteenth Amendment Equal Protection 
considerations, as forwarded in Yick Wo and in 
Harper, would have affected the judiciary’s reasoning 
in Crawford by situating its contentions at the crux 
of disparate treatment by the State. This is to say that 
the case would have been comprehended within 
the canon of discrimination stare decisis. Instead, 
it was canvassed only with respect to interest-
burden judicial calculus. The justices punted the 
claims of differential actualization by attending 
more attentively to legally-leveraged burdens, those 
implementations imagined in the initial legislation. 
Ultimately, I argue that if this had not been the case, 
the outcome of the Crawford would have necessarily 
been different. And, in a broad view, it could have 
subsequently fostered a completely transformed 
practical voting situation in state and federal 
elections. This redefined reality would be closer to 
the quintessential democratic ideals promulgated 
by American political philosophy, as articulated by 
John Rawls and countless others. 
 In the contemporary political landscape of the 
United States, representation is not a singular concern 
about one individual’s capacity within a state, but, 
rather, something evaluated in conjunction and in 
comparison with the capacities of fellow citizens. The 
American socio-political fabric is premised on and 

27 Reynolds v. Sims, 377 U.S. 533 (1964).

emphasizes a broad scope of equitable participation 
by its citizens, and so the lack of judicial attention to 
this central value is deeply troubling. Alas, the work 
from idealism to actuality continues. 

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Harper v. Virginia Bd. of Elections, 383 U.S. 663 
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Lassiter v. Northampton Election Board, 360 U.S. 45 
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