In two recent Supreme Court cases, the sheer size of Texas has played into the constitutional calculus. First, with respect to Texas’s new abortion laws, the District Court, in finding an undue burden, noted that some people would have to drive up to 5 hours to visit a clinic. Second in her dissent from the Court’s denial of a stay in the Texas Voter ID case, Justice Ginsburg noted that some people in Texas would have to drive up to three hours to a government office in order to obtain a new ID. (Having to go to any DMV should be an undue burden in my eye. Forget the 5 hour drive. I’ve waited 3 hours once I got there! But I digress).
In this post, I won’t draw any conclusion of whether these laws are unconstitutional. Rather, I want to draw attention to a fact that most people are aware of, but maybe haven’t connected in the context of the state imposing burdens on people by making them travel further. Everything is bigger in Texas. The state is huge. In various parts of the state, you will have to drive very, very far to go anywhere.
Simply stating the number of hours one has to drive to get somewhere, in my mind, is not sufficient to illustrate how big of a burden someone suffers as a result of some law. Rather, that distance must be viewed in the context of where this place is. When someone chooses to live in a remote area of a humongous state, quite remote from many of the comforts readily available along the I-95 Amtrak Corridor, they generally accept the fact that they will have to drive far to go places they may need to go. I’ve done the math, and in various parts of Texas, the nearest Wal-Mart is a 2 hour drive. Now, I am not suggesting that visiting a Wal-Mart is on the same constitutional plane as the right to vote. Rather, I am trying to set a baseline for expectations of what would constitute a burden to people living in these remote areas, accustomed to traveling huge distances.
Let’s call this an “Everything’s Bigger in Texas” principle of undue burdens. An undue burden to travel 5 hours in a small state like New Hampshire or Maine cannot be considered along the same lines as 5 hours in a huge state like Texas. Any analysis that looks at distances has to consider how large the state, how densely populated an area is, and how far that area is from other essential services. The people are generally accustomed to driving longer distances.
Now there is an obvious rejoinder to that. The poorest people–who are most likely to be impacted by these laws–may not have the means to drive this far, nor take that much time out of the day for a 10-hour roundtrip. That is absolutely true, and is a factor that can be considered when assessing the burden imposed by requiring someone to travel to a further destination. But that rejoinder must be tempered by the general understanding that people of all socio-economic classes living in certain sparsely populated areas have to travel further, when having to go somewhere that is not available locally.