Voter ID laws are becoming more and more a part of the
national election conversation, particularly as it relates to several key
states for this election cycle. Both
sides of the political spectrum are aflutter with arguments about the virtues,
or lack thereof, of having tighter voter identification standards. To some, ID laws are equivalent to an
unconstitutional poll tax designed to dissuade or remove voters from the
franchise based on nothing more than economy.
Others argue that there is evidence of voter fraud, and that one person
casting an illegal ballot is too high a price to not implement voter ID
laws. Additionally, the same side
argues that in a world where so many functions require an ID it is no barrier
to require ID for a process as important as voting. My position on this argument, and a slightly
smaller subset of arguments about in-person voter fraud, is here for
those who are interested. However, I
want to get more into the legal thicket and in particular explain how this
legal fight, right or wrong, also translates into real political consequences
for this year’s election. This post
deals with the law, the next post deals with the political conversation about
voter ID issues.
It is important to understand the legal framework of the argument
for the rest of the political issue to be properly understood. There are numerous background principles at
play in the voter ID context that helps explain the fight over ID laws. Although the right to vote is not
specifically enshrined in the Constitution, voting is considered a fundamental
right in this country because it is preservative of all the other rights held
dear to our society. Reynolds v. Sims, 377 U.S. 533, 554-55
(1964). The Constitution protects the
voting franchise in terms of proscribing states and the federal government from
denying citizens the right to vote.
U.S. Const. Amends. XIV, XV, XIV, XXIII, XIV.
This view was not always held by the Supreme Court. In Minor v. Happersett, in 1875, the right to
vote was considered not protected under the Constitution. In Minor, a suffragette in Missouri
attempted to register to vote. When she
was denied she sued under the Fourteenth Amendment by arguing that citizenship
in the United States implies the right to vote.
The Missouri Supreme Court ruled against Minor and in favor of the
election registrar who denied Minor’s registration. The Supreme Court unanimously held that the
right to vote is not an inherent part of citizenship. Although there were several other arguments
made, Minor’s primary arguments were that equal protection and the Fourteenth
Amendment demanded that women be allowed to vote just like men, she was a
citizen, and voting was a privilege and immunity protected under the
Constitution.
The Supreme Court thoroughly disagreed with Minor’s
argument. The Supreme Court argued,
through a detailed analysis of the Constitution, that if each citizen had the
right to vote, that the Constitution would not have given the right by
implication. Instead, the founders would
have affirmatively protected the right. As
a matter of original understanding, the Court went on to note that the thirteen
original colonies did not allow all citizens to vote, and that this did not
offend the founding fathers, therefore it cannot be considered repugnant to the
Constitution. Ultimately, the Supreme
Court thoroughly denied that the right to vote existed through the
Constitution.
The Supreme Court significantly reversed this rule in a
series of decisions in the 60’s under Chief Justice Earl Warren.[1] In Harper v. Va. State Board of Elections,
the Supreme Court unequivocally stated that a state poll tax was an attempt to
restrict voting based on the affluence of the voter. During Harper’s time, the federal government
was already prevented from enacting poll taxes as a result of the Twenty Fourth
Amendment, enacted in 1964. The question
in Harper was whether state governments could make their own poll taxes. See
generally Harper v. Va. St. Bd. Of Elections, 383 U.S. 663 (1966). Virginia’s Constitution directed an annual
poll tax that could not exceed $1.50 on every resident who was 21 years of
age. Id.
at n.1. Virginia’s argument was simple;
the state requires fees for licenses for numerous activities such as driving
and operating a business. Virginia’s
logical progression was that fees were applicable to the voting franchise.
The Supreme Court flatly rejected Virginia’s logic. Unlike a reading or writing assessment to
voting, the court found that the ability to pay a tax had no relationship on
the ability to vote.[2] Foremost, the Supreme Court ruled that the
Fourteenth Amendment does not abide discrimination based on wealth, property,
or race when it comes to voting.
Further, the Supreme Court rejected interpreting the Fourteenth
Amendment from a position of original understanding and instead recognized that
the Fourteenth Amendment is pliable with the era in which the Amendment is
being interpreted. So what may have been
acceptable under the Fourteenth Amendment in the past, need not shackle the
interpretation of Fourteenth Amendment in modern times. Although the Supreme Court noted that valid
restrictions based on voter qualifications are permissible, wealth is
unquestionably not related to voter qualification.
For our times, the Supreme Court squarely addressed the
voter ID issue in Crawford v. Marion
County Election Bd., 553 U.S. 181 (2008).
In Crawford, Indiana enacted a
Voter ID requirement as a way of rooting out potential fraud at polling
locations. The ID law required proper ID
to vote.[3] Surveying the prior law before ruling,
Justice Stevens argued that strict scrutiny was applied in cases of voter
restrictions that had nothing to do with legitimate voter qualifications. Thus the Harper
framework was that rational restrictions on the right to vote are invidious and
unconstitutional under the Fourteenth Amendment if the restriction is unrelated
to voter qualifications. Stevens noted
that evenhanded restrictions based on vote integrity and the electoral process
are not invidious and were therefore not offensive to the Constitution. In order to discern which restrictions are
and are not legitimate by balancing the interests of the right to vote against
the justification for the voter restriction.
Burdick v. Takushi, 504 U.S.
428 (1992).[4]
The following state interests were identified by the Court: 1) Election
Modernization, 2) Voter Fraud, and 3) Voter Confidence.
Passing over vote modernization, voter fraud and voter
confidence are of primary importance to the legal arguments for the 2012
election. Voter fraud is a clear state
interest and the Indiana law would prevent in person voter fraud. Justice Stevens argued that voter fraud
cannot be gainsaid as a state interest. In order to safeguard the vote, Justice
Stevens noted that people are less likely to vote if they feel that the vote is
rigged, which harms our democracy, therefore this interest was clearly important. In balancing these interests against the
burdens, the Court held that the burdens were slight arguing that: provisional
balloting remedied the problems with incorrect assessments by an electoral
judge, free and readily available IDs also mitigating the burden placed on
voters, and finally that the effects of the voter law were not sufficiently
established to rule that the burden was so heavy so as to outweigh the state interests. In sum, voter ID laws are acceptable if they
are neutral and do not further overburden voters in light of sufficient state
interests, such as fraud prevention, to justify enacting the legislation.[5]
So the current rubric for determining whether the voter
ID laws violate the Constitution is based on a balancing of interests between
the state’s burdens on a voter, and the voter’s right to vote. Although this is the constitutional issue, it
is important to distinguish between a constitutional challenge to voter ID laws
and a statutory challenge to voter ID laws.
Some states are subject to Section 5 preclearance under the Voting
Rights Act. These states are those that
have a history of denying minorities the right to vote, and therefore, any
change in voting systems requires preclearance by three judges or the
Department of Justice before the law becomes effective. Additionally, Section 2 of the VRA flatly
bans voter discrimination. These two statutory
provisions provide voters different avenues to attack a voter ID law.
Section 5 preclearance requires that any change in voting
practice, qualification, or requirements for voting must first be cleared with
the Department of Justice of three judges from the District of Columbia’s
Federal District Court. Currently
Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina,
Texas, and Virginia require preclearance en masse, with an exception for
Georgia in Sandy Springs, and some counties in Virginia. In these states, a voter ID law must be cleared
to discern if a state has an intent to discriminate against minorities. The changes to voter laws in these states do
not become effective until cleared by the DoJ and judges in D.C. To date, Virginia’s voter ID law has passed preclearance.[6] Texas and South Carolina’s voter ID laws have
not been pre-cleared and therefore are being challenged in court.[7]
Section 2 of the VRA has been used to stop any kind of voter
discrimination against minorities, however, this section of the VRA has not been
sufficiently explored by the courts.
Section 2 has historically applied to voter dilution efforts by majority
groups to limit the effect of discrete minority populations. Thornburg
v. Gingles.[8] The Supreme Court has looked at section 2 in
similar circumstances in Bartlett v.
Stickland in 2009, however there have not been challenges that go beyond
challenges of minority voter dilution.
However, it is not readily clear that Section 2 only applies to voter
dilution. Section 2(a) clearly applies
to any qualification or prerequisite that, in application, results in denial or
abridgment of the right of any citizen of the US based on race, color, or
member of a minority group. Section 2(b)
states that a violation of section 2(a) can be established by showing that the
processes leading to nomination or election of an official are not equally open
to participation do a degree that minorities, people of color, or a specific
race, are unable to participate to the same degree as others.[9] Applied to voter ID laws one could make the
argument that the laws are designed to prevent minority groups from voting
equally and fully with majority groups in their districts. There is little case law for such a
proposition but the language of the statute seems like it could apply in a
voter ID context.
There it is; the legal framework for voter ID
restrictions in America. Considering the
balancing test established in Burdick
and further used in Crawford, it is
clear that legal challenges to voter ID laws have a heavy legal burden to
overcome due to the state’s clear interests in routing out fraud in
elections. In the next post I will talk
how the political conversation has meshed with the legal framework. The next post will be less focused on the law
and heavily focused on recent political developments, and why voter ID laws are
integral to the 2012 election.
[1] It is important to note that in
some prior cases the Supreme Court had considered the role of voting in our
society prior to the 60s. Yick Wo v. Hopkins, 118 U.S. 356, 370
(1886) (stating that the voting franchise is a fundamental political right
because it is preservative of all rights).
[2] Reading and writing assessments,
although not unconstitutional are banned by the Voting Rights Act.
[3] If someone was indigent or had a
religious objection that person could go to the circuit court clerk in 10 days
and sign an affidavit. A voter who had
ID but could not furnish it at the polling location could fill out a
provisional ballot that would be counted if the voter brought the photo ID to
the county clerk’s office. The law also
allowed free photo IDs to any qualified voter who could prove residence.
[4] In Burdick the Supreme Court upheld a Hawaii electoral process that
did not allow individuals to cast a write-in ballot for a candidate. The Court ruled that although this would deny
many voters from casting a ballot for their preferred candidate, there were
sufficient methods for candidates to access the ballot therefore there was
little burden to voters. The
justification by the state was to keep the ballot clean and to prevent
unrestrained factionalism. Even though
this interest was not great, it was sufficient to overcome the slight burden
placed on voters in the case. I’ll
further note, I am not sure this balancing test was proper. It is a reasonable interpretation of Harper to assume that all restrictions
on the right to vote were subject to strict scrutiny, which automatically
assumes a law is unconstitutional forcing the state to provide exceedingly
compelling interests that are narrowly tailored to the interests specifically
detailed by the state; such circumstances frequently results in the Court
casting aside the law. Scrutiny that is anything
other than strict frequently allows the Court some leeway in determining if the
interests posited by the state are acceptable, intermediate scrutiny, and in
many circumstances allows the Court to provide its own legitimate reasons for a
law’s existence, rational basis scrutiny.
Burdick is a remarkable move
from such a strict standard by replacing it with a sliding scale that weighs
competing interests against one another.
[5] It should be noted that the
Court rejected the clear politics behind the Indiana voter ID law as a reason
to reject the voter ID law. Overstepping
the political problem Justice Stevens argued, “if a nondiscriminatory law is
supported by valid neutral justifications, those justifications should not be
disregarded simply because partisan interests may have provided one motivation
for the votes of individual legislators.”
[6] It is important to note that
Virginia’s voter ID law is very lax, allowing non-photo ID, voter registration
cards, and many kinds of voter ID to qualify to vote.
[7] Several very important actors
are involved in suits attempting to strike down the VRA; namely, Hans von
Spakovsky a former chairman of the Federal Election Commission. He will be covered extensively in the next
blog post because he frequently insists that in person voter fraud is
rampant.
[8] Voter dilution in this case
would be apportioning minority populations into separate voting districts in a
way that renders the minority voters unable to meaningfully cast a ballot. For example, if there is a largely Hispanic neighborhood
that is large enough to be its own voting district, it would be a violation of
Section 2 to divvy up the Hispanic voters into multiple districts so that the
majority population consistently won over the Hispanic neighborhood.
[9] There is no intent requirement
to violate Section 2 of the VRA.
