Equally Protected, but Unequally Identified: State Voter ID Laws and their Constitutionality

Gaia Mattiace   COL 2018

In recent months issues of voter ID laws and their constitutionality have become ever more prevalent and controversial. However, laws requiring voters to bring a form of identification in order to cast their ballot have been in place since the 1950s, when South Carolina became the first state to require voter IDs.[1] In recent years the topic has become highly politicized with many Republicans purporting that voter ID Laws protect and preserve the integrity of the electoral process and Democrats, on average, claiming that these laws put unnecessary restrictions on legal voters and make the system less democratic. The constitutionality of these laws remains up for debate, as recent developments in court cases across the country have shown. Throughout the years the court has remained starkly divided as to the extent to which states can restrict voters. The coming years promise to bring even greater dissent in light of the political climate and recent rulings at the district and circuit levels. It is therefore instrumental for us to understand the legal background that surrounds the current political debate.

While Article I, Section 4 of the Constitution provides states with the right to decide “the times, places and manner of holding elections,” the Fourteenth and Fifteenth Amendments deny states the ability to restrict their voters’ rights.[2] The Fourteenth Amendment dictates that no state can “deny to any person within its jurisdiction the equal protection of the laws,”[3] and the Fifteenth Amendment affirms that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”[4] The Voting Rights Act of 1965 (VRA) banned literacy tests and put in place special provisions to protect against voter disenfranchisement in regions of the country where discrimination had manifested itself to the highest degree.[5] While the VRA did not deal with the problem of poll taxes, Harper v. Virginia Bd. of Elections (1966) ruled this voting restriction to be unconstitutional. In Harper the court ruled that, “A State violates the Equal Protection Clause of the Fourteenth Amendment, whenever it makes the affluence of the voter or payment of any fee an electoral standard.”[6] Both these sections of the constitution and rulings such as Harper set the stage for the complex and tumultuous history of voter ID laws.

So what are voter ID laws and why do they matter? Currently 32 states have voter ID laws, 17 of those states require a photo ID, rather than deeming some other form of identification acceptable. Seven states are “strict” photo ID states, which means voters must take additional steps if they lack a photo ID on Election Day. These voters cannot simply cast a provisional ballot that is then verified by electoral officials. Those in favor of voter ID laws argue that they are useful in preventing voter impersonation, while those opposed see it as an unnecessary burden on voters, as there is little evidence of this kind of fraud occurring frequently.[7] Why do voter ID laws pose a constitutional question? The equal protection clause requires that no state regulation weigh differentially on citizens of the state. Requiring photo identification can pose a hurdle for those who are low income, sick, disabled, cannot afford the travel and time necessary to obtain a photo ID, or those with religious objections to having their pictures on their identification card. The question then is: do voter ID laws pose a significant burden on these individuals by unequally disadvantaging or disenfranchising them?

In 2006 Indiana became the first state to implement a strict photo ID law. The law precluded individuals without a government issued photo-ID from voting.[8] The constitutionality of such strict photo-ID laws was brought into question in Crawford v. Marion County Election Board (2008).[9] The case of Crawford challenged the statute on its face, meaning that they claimed that the statute, as it stood, was unconstitutional in every possible application, and therefore had to be struck down. Using the standards set forth in the case of Harper, Judge Stevens, writing for the majority, ruled that the requirement of a photo ID did not constitute an “invidious” restriction “unrelated to voter qualifications.” The ruling, however, did not set a universal rule on voter ID laws, since it did not set a line or standard. “Rather than applying any ‘litmus test’ that would neatly separate valid from invalid restrictions,” Stevens and the majority opinion stated that they preferred to “evaluate the interests put forward by the State as justifications for the burden imposed by its rule, and then make the ‘hard judgment’ that our adversary system demands” on a case-by-case basis.[10] This notable ambiguity in the final judgment left the question of whether and to what extent states can enforce voter ID laws up for debate and has led to the uncertainty and controversy that perseveres today. Ultimately, in this particular case, the majority ruled that Indiana had an imperative to institute the requirement in order to foster election modernization, prevent voter fraud, and safeguard voter confidence. Two different dissents were written, one by Justice Souter, who was joined by Justice Ginsburg and the other by Justice Breyer.[11] Souter’s dissent cited Burdick v. Takushi (1992) in saying that, “a State may not burden the right to vote merely by invoking abstract interest,” as there was no concrete evidence of type of voter fraud the law was intended to prevent. [12]

We see two different standards being established and cited: Stevens, along with the majority, claimed that, as long as the law serves a purpose relevant to the state’s interests of maintaining fair elections and is not “invidious” in setting its boundaries, it is valid. Souter on the other hand, argued that states cannot set qualifications that set additional burdens unless the issue is something that is tangible and visible. [13] Souter also emphasized the case-by-case basis required in consideration of such cases, saying, “We have avoided pre-set levels of scrutiny in favor of a sliding-scale balancing analysis.” [14] According to the precedent set in Burdick, this sliding scale depends on the significance of the burden the regulation places on people’s First and Fourteenth Amendment rights and the number of people affected. Souter went on to enumerate the various burdens voters had to undergo to obtain a voter ID including: travel costs and fees, the challenge of obtaining a birth certificate if one lacks one, and the problem of having to sign an affidavit within 10 days for one’s provisional vote to count in the absence of a photo ID. In addition, Souter pointed to the District Court’s approximation that 43,000 Indiana voters lacked photo IDs at the time, as evidence of the photo ID law’s widespread impact, particularly on poor voters. [15] Ultimately, the prerogative of preventing voter fraud was valued as more pressing than the burden placed on Indiana voters by the requirement, therefore the law was left in place.

More recently, Shelby County v. Holder (2013) seemed to crack the door open even further for voter ID laws throughout the country. Section 5 of the Voting Rights Act of 1965 requires certain districts, which are determined by using a formula laid out in Section 4(b) from enacting changes to their election law without authorization from the Attorney General or the Washington D.C. District Court, to ensure that they did not impact any individual’s ability to vote, based on his or her race or minority status. In Shelby County the Supreme Court found that Section 4 of the Voting Rights Act was unconstitutional, on the grounds that the formula was outdated and unjustified due to current conditions. Justice Ginsburg dissented, arguing that the Fourteenth and Fifteenth Amendments provide Congress with the power to enact provisions such as those held in the Voting Rights Act.[16] Without this pre-clearance requirement, several states, previously affected by Section 4, moved to change their voting laws and adopted stricter ID requirements.[17] Although the Shelby County v. Holder decision paved the way for stricter voter ID laws, it did not weigh in on the constitutionality of such laws, leaving us still with the question of whether setting these requirements is a valid way for states to exercise their power, or if it sets states up for voter disenfranchisement akin to the poll tax or the literacy test.

Although these Supreme Court decisions seem to have loosened the restrictions on states in terms of voter ID laws, there has been a recent flurry of activity by district courts that has tightened the reigns on voter ID laws, ensuring that they not be excessively restrictive. A Texas 2011 voter ID law required that voters bring only certain acceptable forms of identification to the polls, such as a Texas Driver’s license, a U.S. military identification card, a U.S. citizenship certificate with a photo, a U.S. passport, a license to carry a concealed handgun or an Election Identification Certificate (which requires forms of ID including a driver’s license, or a birth certificate for an individual to obtain it). Without one of these proofs of identification, a voter could cast a provisional ballot, but he or she would have to bring the appropriate identification within six days.[18] This law has widely been considered one of the nation’s strictest voter ID laws. Section 5 of the VRA initially blocked the law, but subsequent to Shelby County v. Holder, Texas began enforcing the law. In 2014, the District Court of Corpus Christi struck down the law on the basis that it disproportionately affected African American and Latino voters. The Texas 5th Circuit Court of Appeals considered the constitutionality of Texas’ voter ID laws in Veasey v. Abbott (2015) and affirmed part of the district court’s ruling. The majority wrote, “The record shows that drafters and proponents of SB 14 were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact.”[19] However, the circuit court rejected the claim that the law imposed an unconstitutional poll tax. [20] Therefore, the law was found in violation of the Fifteenth Amendment, but not the Equal Protection Clause of the Fourteenth Amendment. On January 23, 2017 The Supreme Court declined to hear the appeal from Texas in order to reinstate its strict voter ID law. Chief Justice Roberts issued a statement explaining that the Supreme Court might consider subsequent cases regarding the issue of voter ID laws after lower courts have made more considerations on the topic.[21]

After the ruling in Shelby County v. Holder North Carolina enacted several changes to its election laws including a strict photo ID law, the elimination of same-day voter registration, reduction of the number of early voting days, and a cessation of pre-registration for 16 and 17 year olds in the state. The law was contested both at the district level and at the 4th Circuit court of appeals, which unanimously struck down the restrictive laws. In the case of North Carolina State Conference of the NAACP v. McCrory (2016) the majority wrote, “The new provisions target African-Americans with almost surgical precision… and, in fact, impose cures for problems that did not exist. Thus, the asserted justifications cannot and do not conceal the state’s true motivation.”[22] Again ruling on the state’s violation of the 15th Amendment.

We can see the history of voter ID law cases forming a trend, particularly in regards to “strict” voter ID laws and voter ID laws that require photo identification. Judges have been hesitant, and even reticent, to say that requiring an ID is a violation of the equal protection clause of the Fourteenth Amendment, or that in other words it is like a poll tax or a literacy test, preventing voters of certain socioeconomic strata from voting. However, judges have been ready to recognize instances in which these laws challenge their intent by their implementation, or cases in which they make elections more unfair and less democratic (instead of ensuring the fairness and authenticity of elections as voter ID laws claim to do) by disenfranchising minority voters, in accordance with the requirements established in the Fifteenth Amendment and the VRA. The question remains if more restrictive laws that do not result in the disproportionate disenfranchisement of minorities in particular, but, on average, create hurdles for voters of lower socioeconomic backgrounds, will become a problem to be addressed by the courts. Furthermore, within the sphere of a new political landscape, we may see the courts reconsidering cases where voter ID laws were struck down, particularly in light of claims of widespread voter fraud coming from the executive branch. It is essential then to bear in mind not only court precedent and the real life consequences that certain voter ID laws can have on voter turnout, but also our constitutional and legal foundations, and how they have set the stage for a more democratic and participative union.

[1] “Voter ID History .” National Conference of State Legislatures . N.p., 18 Apr. 2016. Web. <http://www.ncsl.org/research/elections-and-campaigns/voter-id-history.aspx&gt;.

[2] U.S. Constitution. Art. I Sec. 4.

[3] U.S. Constitution. Amend. XIV.

[4] U.S. Constitution. Amend. XV.

[5] “History Of Federal Voting Rights Laws.” History Of Federal Voting Rights Laws | CRT | Department of Justice. N.p., 8 Aug. 2015. Web. <https://www.justice.gov/crt/history-federal-voting-rights-laws&gt;.

[6] Harper v. Virginia Board of Elections. 383 U.S. 663. Supreme Court of the United States. 1966. Supreme Court Collection. Legal Information Inst., Cornell U. Law School, n.d. Web. 16 Jan. 2012.

[7] “Voter ID Identification Requirements | Voter ID Laws .” National Conference of State Legislatures . N.p., 25 Sep. 2016. Web. <http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx&gt;.

[8] Lee, Steven, and Sarah Smith. “Everything You’ve Ever Wanted to Know About Voter ID Laws.” ProPublica. N.p., 9 Mar. 2016. Web.

[9] Greenhouse, Linda. “In a 6-to-3 Vote, Justices Uphold a Voter ID Law.” The New York Times. N.p., 29 Apr. 2008. Web.

[10] Crawford v. Marion Country Election Bd. 553 U.S. 181. Supreme Court of the United States. 2008. Supreme Court Collection. Legal Information Inst., Cornell U. Law School, n.d. Web.

[11] Crawford v. Marion Country Election Bd. 553 U.S. 181. Supreme Court of the United States. 2008.

[12] Crawford v. Marion Country Election Bd. 553 U.S. 181. Supreme Court of the United States. 2008.

[13] Crawford v. Marion Country Election Bd. 553 U.S. 181. Supreme Court of the United States. 2008.

[14] Crawford v. Marion Country Election Bd. 553 U.S. 181. Supreme Court of the United States. 2008.

[15] Crawford v. Marion Country Election Bd. 553 U.S. 181. Supreme Court of the United States. 2008.

[16] “Shelby County v. Holder.” Oyez, https://www.oyez.org/cases/2012/12-96.

[17] Fuller, Jaime. “How has Voting Changed since Shelby County v. Holder?” The Washington Post. N.p., 7 Jul. 2014. Web.

[18]Veasey v. Abott. 796 F.3d 487. 5th Cir. 2015.

[19] Ford, Matt. “A Victory for Voting Rights in Texas,” The Atlantic. N.p., 20 Jul. 2016. Web.

[20] Ford, Matt. “A Victory for Voting Rights in Texas.” The Atlantic.

[21] Liptak, Adam. “Supreme Court Won’t Hear Appeal from Texas on Voter ID Case.” The New York Times. N.p., 23 Jan. 2017. Web.

[22] Walsh, Mark. “Appeals courts are dismantling stricter voter ID laws.” ABA Journal. N.p., 01 Nov. 2016. Web.

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