The Seventh Circuit insists that the district court in the Wisconsin ID litigation was too lenient with the option of an affidavit for voters who could not with reasonable effort obtain a qualifying photo ID. So the Court directs that this relief be limited to the class of voters in genuine need, and it is seeking from the court below “objective standards” election officials could use in determining what constitutes “genuine difficulties” in obtaining ID.  To support its position, the Seventh Circuit cites a portion of Crawford, offering this selection:

Yet the Supreme Court held in Crawford v. Marion County Election Board, 553 U.S. 181, 198 (2008), that “the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” A given voter’s disagreement with this approach does not show that requiring one trip to a governmental office is unreasonable.

The Seventh Circuit chooses to omit the opening three words of this sentence in Crawford: “For most voters…” In other words, the Supreme Court in Crawford does not say that the inconveniences are minor for all voters, but more generally for most voters. It does not even suggest that the number of voters for whom these inconveniences would be significant are small or trivial in number, only that it is a “limited number” and that “most voters” don’t confront the problem. Crawford suggested that the limited number may include elderly persons born out of state and those economic and unspecified “personal” limitations. 553 U.S. 199.

Crawford does not easily lend itself in the way the Seventh Circuit suggests to the development of “objective standards” for determining for particular voters “genuine difficulties” in meeting ID requirements. By the Seventh Circuit reading, election officials should be required to sort out what a reasonable effort to obtain an ID would entail for “most” voters—and then to decide whether in the particular voter’s case, an exception should be made. The Seventh Circuit imagines that the officials should question the voter and be free to dispute their claims to this exception.

The Court seems to believe that this process with its standard of objectivity is necessary at least to ferret out the voters who make no effort at all. It does not say beyond this how much an effort is enough. It is not concerned that this process of identifying and implementing “objective” standards would quickly prove notable for subjectivity, inconsistencies and confusion.

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