Voter ID laws have been a controversial topic of debate recently, as many states have chosen to force their citizens to provide identification at the voting booth. Supporters of this practice, typically more right-leaning individuals, claim that these laws are necessary to protect our most important right from voter fraud and the taint of corruption. Opponents, generally more to the political left, claim the laws do the exact opposite, excluding those who cannot or will not secure voter identification with little justification. Federal courts have recently issued a number of rulings on several state Voter ID laws, and the question of whether Voter ID laws are constitutional, at least in their present form, may soon be on its way to the Supreme Court of the United States.
On July 20th, 2016, the United States Court of Appeals for the Fifth Circuit remanded an appeal of a decision from the United States Federal Court for the Southern District of Texas for further consideration of the Texas voter ID law, Senate Bill 14. On July 29th, 2016, the United States Court of Appeals for the Fourth Circuit held that House Bill 589, a North Carolina election law containing a voter ID provision similar to that in Texas Senate Bill 14, unconstitutionally affects minority voters. On August 1st, 2016, the United States District Court for the District of North Dakota struck down a North Dakota voter ID law for similar reasons.
Though Voter ID laws have existed in one form or another for many years, these laws were only officially held constitutional in the Supreme Court’s 2008 decision Crawford v. Marion County Election Board.
Voter ID laws typically require individuals to present photo identification when visiting a polling station. Many states also limit the type of identification that can be used. For example in Texas, proper forms of identification included a Texas driver’s license or personal identification card, a U.S. military identification card, a U.S. citizenship certificate, a U.S. Passport, a concealed carry license, or an Electronic Identification Certificate. North Carolina, North Dakota, and Wisconsin similarly limit the forms of identification that can be used to prove one’s right to vote.
Though Voter ID laws have existed in one form or another for many years, these laws were only officially held constitutional in the Supreme Court’s 2008 decision Crawford v. Marion County Election Board. New, more restrictive voter ID laws have recently become more popular following the Supreme Court’s 2013 decision in Shelby County v. Holder. The controversial 5-4 decision struck down section five of the Voting Rights Act of 1965, which required certain voting districts (mostly in the south) to seek approval for changes in their voting laws from the U.S. Department of Justice. It is perhaps unsurprising that many challenges to the voter ID laws passed in the wake of Shelby County have been based on the disadvantage such laws allegedly create for minority voters.
The Fourth Circuit, referring to the North Carolina Voter ID law, claimed “the bill retained only the kinds of IDs that white North Carolinians were more likely to possess,” and therein disadvantaged minority voters disproportionately.
In fact, undue burden on minority voters has been the common determining factor in each of the recent Voter ID law cases. The Fifth Circuit did not strike Texas’s Senate Bill 14 down, instead remanding so the Federal District Court could correct its analysis and find a proper remedy to the law this close to an election. However, the Fifth Circuit’s discussion of Senate Bill 14’s discriminatory effect has left little doubt that the law will be struck down. The Fifth Circuit’s consideration of the evidence found that Senate Bill 14 had a disproportionately discriminatory effect on minority voters, as many could not procure ID that would allow them to vote. The Fourth Circuit, referring to the North Carolina Voter ID law, claimed “the bill retained only the kinds of IDs that white North Carolinians were more likely to possess,” and therein disadvantaged minority voters disproportionately. The Fourth Circuit reasoned that disproportionate effects on minority voters evidenced that N.C. House Bill 589 was motivated by discriminatory intent. The United States District Court for the District of North Dakota also found that North Dakota’s Voter ID law disproportionately affected minority voters, specifically Native American voters.
The Fourth Circuit found that North Carolina’s indigent voter ID service made indigents jump through so many hoops to prove their indigent status that it discouraged many from obtaining voter ID.
All three states claimed that even if the law was motivated by discriminatory intent, preventing voter fraud was a compelling government interest and the laws’ scopes were narrowly tailored enough to pass strict scrutiny. However, neither the Fourth Circuit nor the District of North Dakota were convinced, each reasoning that evidence of voter fraud was minimal. The Fifth Circuit, while acknowledging that preventing voter fraud is a recognized compelling government interest, found that the laws were only tenuously related to that purpose. Citing Thornburg v. Gingles, the Fifth Circuit held that a tenuous relation to the compelling government purpose cited to justify a law is a significant factor in determining whether that law is inappropriately motivated by racial discrimination.
One issue that frequently arises in Voter ID cases is the ready availability of free access to such ID. To alleviate the financial burden on poor voters, states will often make free voter ID available upon proof of indigence. However, both the Fourth and Fifth Circuits found in their respective cases that the provision of free ID was not enough to save either law. The Fourth Circuit found that North Carolina’s indigent voter ID service made indigents jump through so many hoops to prove their indigent status that it discouraged many from obtaining voter ID. The Fifth Circuit noted that Texas failed to even advertise their free voter ID program, and even if voters attempted to obtain an “Electronic Identification Certificate,” or “EIC,” they had to go through a rigorous process as well.
Writing a dissent in a 2014 Seventh Circuit decision upholding a Wisconsin voter ID law, Judge Posner commented that voter ID laws “appear to be aimed at limiting voting by minorities, particularly blacks.”
Ultimately, these cases will very likely be taken to the Supreme Court, where the Court will determine whether the provisions of these laws unconstitutionally affect minority voters. In an election year, the repercussions are already being felt, with North Carolina having recently submitted a stay request to the Supreme Court alongside an official appeal of the Fourth Circuit’s decision. A Texas appeal of the Fifth Circuit’s decision is reportedly also in the works.
The truly confusing thing about these laws is that Republican legislatures, who are by and large responsible for their passing, feel that voter ID laws are necessary. The Republican Party has typically gained support from many organizations that claim to mistrust government control. Yet that same party is largely responsible for laws that force its members to subject themselves to being placed on a government registration if they want to exercise their single most valuable right, the right to vote. Many conservatives continue to express unhappiness with what they agree is an attempt at discouraging minorities from voting. Judge Richard Posner, a Reagan appointee who has long been considered one of the leading conservative legal voices in the country, has been very vocal in disagreeing with voter ID laws. Writing a dissent in a 2014 Seventh Circuit decision upholding a Wisconsin voter ID law, Judge Posner commented that voter ID laws “appear to be aimed at limiting voting by minorities, particularly blacks.” Judge Posner further suggests that the fraud used by states as a compelling government purpose for voter ID laws is nonexistent. From his voice and others, there are many conservatives who are unhappy about the new voter ID laws.
These political issues certainly culture the courts’ decisions, but perhaps this is an issue on which both sides can find some common ground. If, or more likely when, these issues reach the Supreme Court, precedent clearly says voter ID laws are allowed. The real question will be, to what extent?