As the courts work their way through claims against ID and other voting restrictions, they continue on a course of “softening” voting impediments but not eliminating them altogether. They remain reluctant to deny states the authority to enact rules, on virtually non-existent evidence, to protect against in-person voter fraud. Remedies are then fashioned that provide relief to voters facing a “reasonable impediment” to voting but the question has been legitimately raised: how much of an impact can these sorts of measures be expected to have?

Like the right to a provisional ballot provided for under HAVA, these other remedies– like accommodating indigent voters with access to cost-free identification–help voters, but only a limited number. The reach and effectiveness of these measures depend upon the states’ performance of their obligations: the information they provide to voters, and the good faith and competence with which they administer the remedies. The same may be true of more robust remedies, like the option recently ordered for Wisconsin, affording access to an affidavit alternative to documentary identification.

Still “softening” is useful. Political actors—notably, parties and presidential campaigns–and nonprofit voting organizations have dramatically improved upon their capabilities in effectively advising voters about remedial options and assisting them in exercising them. Voters are not, then, entirely dependent upon state officials for help. In successive election cycles, the effectiveness of these partisan and nonprofit voter protection programs has improved, each rebuilt successfully on the experience of the last.

Moreover, and maybe most important, the experience with softening and its limits will contribute to a record on which more expansive judicial relief can be sought. Softening is an inevitable step for courts reluctant to challenge state prerogatives in structuring their elections, including protecting against fraud, but increasingly alert to the proliferation of new burdens imposed on voters. Judges have to contend with problems like the Supreme Court’s misconceived opinion on ID in Crawford. They are working around the problem, for the moment, with “softening.” But with time and experience, the limits of those measures in alleviating major burdens on voters are coming clearly into review. The developing record of this inadequacy will strengthen the hand of voting rights advocates in pushing the courts—and the law–toward more comprehensive relief.

Courts moving in this direction will have the benefit of fresh thinking about state-imposed voting burdens, such as Sam Issacharoff’s “emerging rule of reason” and a “balancing test” proposed to similar effect by Rick Hasen. Each of them calls for dispensing with a complex and largely futile inquiry into motive and asking fundamental questions abut the adequacy of a State’s justification for burdening voting rights. The experience of recent years suggests that these justifications have been weak, and the lessons learned from contemporary voting rights struggles will eventually lead the courts to attack these restrictions more frontally and decisively, not just at the margins and only “softly.”

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