But a state can't abridge important rights just because it feels like it. If the right to vote is important, then the state's justification is as sinister as if it decided to cut back on free speech because bureaucrats prefer the quiet.

The key issue in voting-rights cases is what "standard of scrutiny" the Constitution requires for burdens on the right to vote -- that is, new rules that make it harder to cast a ballot without entirely banning any individual or group from voting. If the right to vote is fundamental, then the standard should be "strict scrutiny"; that means the government must show a very important reason before it is allowed to burden the right. "Security and integrity" might meet that test -- but only if they face an actual threat. The state would have to produce evidence that fraud is actually likely to be a serious problem.

But Judge Simpson in his opinion claims that the Supreme Court's standard is a "deferential" one. Here he tips his ideological hand, because this standard is not law, but rather a creation of the Court's three hardest right-wingers. Though proposed in a concurrence by Justice Scalia, the "deferential" standard was explicitly rejected in Justice Stevens's three-judge opinion announcing the judgment. Under Judge Simpson's extremist reading, however, no matter how strict the government regulation, challengers must prove that someone is certain to be disfranchised -- an almost impossible standard to meet.

Simpson could have decided the case on state-constitutional law grounds -- the Pennsylvania Constitution provides that "[e]lections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." But, like too many state courts around the country, he does not bother to give that clause an independent meaning, instead taking his cue from the right wing of the Crawford Court.

To Americans, we often hear, the vote is a "privilege," not a right. That idea dates back to the early days of the Republic, when "democracy" was a swear word and the Constitution provided only that states could not restrict federal voting more strictly than voting in their own elections.

But since then, the Constitution has changed. Of all the textually guaranteed rights in the Constitution, "the right to vote" is mentioned most often -- indeed, beginning in 1868, it has been reaffirmed no fewer than five times, in § 2 of the Fourteenth Amendment, § 1 of the Fifteenth Amendment, the Nineteenth Amendment, § 1 of the Twenty-Fourth Amendment, and § 1 of the Twenty-Sixth Amendment. (Look it up.)

It's true that none of these provisions says, "Every citizen has a fundamental right to vote, and we ain't playing with you when we say that." Instead, they protect against specific grounds of abridgment. But no other right in the Constitution is spelled out that way either. Freedom of speech, freedom of the press, the "right to keep and bear arms" -- these rights are also, in the same kind of language, assumed to exist and protected against state abridgment.