GPO-CONAN-2017-10-15.pdf

2158 similarly a sentencing court in revoking

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2158 Similarly, a sentencing court in revoking probation must consider alternatives to incarceration if the reason for revocation is the in- ability of the indigent to pay a fine or restitution. 2159 In Crawford v. Marion County Election Board , 2160 however, a Court plurality held that a state may require citizens to present a government-issued photo identification in order to vote. Although Justice Stevens’ plurality opinion acknowledged “the burden im- posed on voters who cannot afford . . . a birth certificate” (but added that it was “not possible to quantify . . . the magnitude of the bur- den on this narrow class of voters”), it noted that the state had not “required voters to pay a tax or a fee to obtain a new photo identi- fication,” and that “the photo-identification cards issued by Indi- ana’s BMV are also free.” 2161 Justice Stevens also noted that a bur- den on voting rights, “[h]owever slight . . . must be justified by relevant 2156 383 U.S. at 668. The Court observed that “the right to vote is too precious, too fundamental to be so burdened or conditioned.” Id. at 670. 2157 405 U.S. 134 (1972). 2158 Lubin v. Panish, 415 U.S. 709 (1974). Note that the Court indicated that Bullock was decided on the basis of restrained review. Id. at 715. 2159 Bearden v. Georgia, 461 U.S. 660 (1983). 2160 128 S. Ct. 1610 (2008). Justice Stevens’ plurality opinion was joined by Chief Justice Roberts and Justice Kennedy. Justice Scalia wrote a concurring opinion that was joined by Justices Thomas and Alito, and Justices Souter, Ginsberg, and Breyer dissented. 2161 128 S. Ct. at 1622, 1621. 2234 AMENDMENT 14—RIGHTS GUARANTEED
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and legitimate state interests ‘sufficiently weighty to justify the limi- tation,’ ” 2162 and he found three state interests that were suffi- ciently weighty: election modernization ( i.e. , complying with fed- eral statutes that require or permit the use of state motor vehicle driver’s license applications to serve various purposes connected with voter registration), deterring and detecting voter fraud, and safe- guarding voter confidence. Justice Stevens’ opinion, therefore, re- jected a facial challenge to the statute, 2163 finding that, even though it was “fair to infer that partisan considerations may have played a significant role in the decision to enact” the statute, the statute was “supported by valid neutral justifications.” 2164 Justice Scalia, in his concurring opinion, would not only have upheld the statute on its face, but would have ruled out as-applied challenges as well, on the ground that “[t]he Indiana photo-identification law is a gen- erally applicable, nondiscriminatory voting regulation,” and, “with- out proof of discriminatory intent, a generally applicable law with disparate impact is not unconstitutional.” 2165 Justice Souter, in his dissenting opinion, found the statute unconstitutional because “a State may not burden the right to vote merely by invoking abstract inter- ests, be they legitimate or even compelling, but must make a par- ticular, factual showing that threats to its interests outweigh the particular impediments it has imposed . . . .
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