How Efforts by State Legislatures to Implement Voter ID Laws Disenfranchise Minority And Poor Citizens
Editor’s Note: NACDL’s Diversity Task Force sponsored a law student essay contest. The task force asked students to discuss voter ID laws and whether they are being used to disenfranchise citizens from exercising their right to vote. Congratulations to Ojoke Oyegunle (first prize), Preston Smith (second prize), and Sally Tyler (honorable mention). The first place essay will be published in an upcoming issue of The Champion.
Voter ID laws exist in states across the country.1 Supporters of voter ID laws maintain that the laws are necessary to prevent voter fraud, whereas critics claim that the measures disenfranchise minority and poor voters.2 Although the 2012 election season has concluded, the laws are still the subject of considerable controversy.
This essay will proceed in four parts. Part II provides an overview of the right to vote. Part III argues that voter ID laws unconstitutionally infringe upon citizens’ right to vote, asserting that many voter ID requirements are modern day poll taxes. Part III also argues that voter ID laws are being used as pretextual means to suppress voter turnout. Part III further declares that voter ID laws are not needed improvements to combat voter fraud. Next, Part IV recommends that any state legislature seeking to implement voter ID laws should allow election-day voter registration and lessen identification document requirements. Lastly, Part V concludes by summarizing why some voter ID laws hinder the democratic process.
In Harper v. Virginia Board of Elections,3 the U.S. Supreme Court declared that voting is a fundamental political right protected by the Fourteenth Amendment’s Equal Protection Clause.4 In Harper, the Court ruled that a poll tax of $1.50 was unconstitutional, serving as a form of invidious discrimination.5 The Constitution allows states to place some restrictions on the right to vote,6 including residency requirements,7 registration deadlines,8 and felon disenfranchisement laws.9 The Court later introduced a balancing test to analyze reasonable and nondiscriminatory voting restrictions.10
Many Voter ID Laws Are Modern Day Poll Taxes
A poll tax is “a tax of a fixed amount per person levied on adults and often linked to the right to vote.”11 In Harper, the Court stated that the ability to vote should not be conditioned upon one’s ability to pay a fee.12 There, the Court drew a line prohibiting mechanisms that make one’s ability to vote contingent upon financial wherewithal.13
The majority in Crawford v. Marion County Election Board erred in finding that the Indiana voter ID law was constitutional, reasoning that the burdens it placed on citizens were minimal and justified by the state’s interest in preventing fraud.14 Justice Souter notes in his dissent that the Court must use the Burdick test and balance the right to vote with the state’s interest in maintaining fair and honest elections.15 Although Indiana offers a free ID to those 18 years or older who can establish their residency and identity,16 Souter’s dissent correctly asserted that the travel costs and fees necessary to obtain approved identification needed to comply with the ID requirement were significant burdens on some citizens.17 Souter also mentioned that roughly 40,000 Indiana citizens did not have the requisite documents to establish their identity18 and would have to spend anywhere from $3 to $100 to retrieve approved identification.19 Lastly, Souter noted that the state, by failing to show any evidence of in-person voter fraud or how the ID requirement helps modernize elections, failed to demonstrate a state interest that justified the burden being placed on citizens.20 Thus, voter ID laws that place a financial burden on citizens to participate in the voting process should be declared unconstitutional.
Such laws can be split into two categories: those that do not offer a free state-issued ID, and those that make voter IDs freely available.21 Some states with voter ID laws charge a fee for the acquisition of a state-issued photo ID.22 For example, if citizens do not pay the fee required to get an approved photo ID in Kansas, they cannot vote.23 This is a quasi-poll tax because it conditions the ability to vote on financial means and was thus prohibited by the Court in Harper24 and the Twenty-Fourth Amendment.25 Accordingly, voter ID laws that require citizens to pay for an approved photo ID levy poll taxes on citizens and are thus unconstitutional.
Alternatively, voter ID laws that offer free voter IDs may still be found to be unconstitutional if the Supreme Court justices were to find that they place a significant burden on the citizenry; for example, in North Carolina, House Bill 351 does not require that citizens pay for a voter ID card.26 Nevertheless, citizens must still provide a state-approved form of identification.27 This law could be deemed unconstitutional if a party was able to show that the burden imposed by this law28 effectively disenfranchised many citizens and consequently outweighed any state interest.29 Unfortunately, this argument recently failed in Crawford.30 Unless the composition of the Court were to drastically change, it is unlikely that the Court will reverse its position in the near future.31
Voter ID Laws Are Being Used to Suppress Minority And Poor Voters
Voter ID laws are an attempt to suppress the turnout of minority and poor voters.32 Because many citizens without photo IDs are poor,33 they represent a significant portion of the affected group. In enacting voter ID laws, legislators ignore the fact that thousands of minority and poor citizens do not possess, and cannot easily obtain, the documents required to establish one’s identity under the new laws.34 Accordingly, these individuals face significant hurdles when attempting to exercise the right to vote under some voter ID laws.35 The blatant disregard of these issues and resultant disenfranchisement demonstrate that voter ID laws are being used to suppress the minority and poor vote across the country.36
Voter ID Laws Are Not a Needed Improvement to Address Voter Fraud
Supporters of voter ID laws claim that the laws will help protect against voter fraud;37 however, there is little evidence of voter fraud nationwide.38 Further, the scant evidence of fraudulent voting shows that fraud most often occurs in absentee voting39 rather than in-person voting (where the voter ID laws would be enforced). As such, the area that needs improvement against fraud is absentee voting,40 which is not addressed by voter ID laws. Because voter ID laws do not target the root of the problem they seek to remediate, they are not a needed improvement to address voter fraud.
If states wish to implement voter ID laws, they should allow those IDs to be obtained at the voting site, similar to same-day voter registration programs in Maine and other states.41 Moreover, states should adopt less-stringent documentation requirements comparable to those in Alaska, which only requires one form of identification to vote.42 This recommendation is appropriate as it allows for the use of more common, and easier to obtain, documents to establish identity, limiting the financial burden on voters while still promoting secure and fair elections.
When signing the Voting Rights Act, President Lyndon B. Johnson remarked that “the vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men.”43States have an obligation to ensure that all citizens have an equal ability to use this “powerful instrument.” Many voter ID laws disenfranchise thousands of minority and poor voters and weaken the republic as a result. Groups concerned with the protection of civil rights must utilize all political means necessary to stop the suppression of America’s most sacred democratic right.
- Press Release, Brennan Ctr. for Justice, 189 Electoral Votes: Restrictive Voting Laws Have Significant Impact in 2012 (Mar. 15, 2012), available at http://www.brennancenter.org/content/resource/189_electoral_votes_restrictive_voting_laws_have_significant_impact_in_2012/ (finding that since the beginning of 2011, 13 states adopted, or will adopt, laws requiring voters to show photo identification to vote, including Florida, Georgia, Illinois, Iowa, Kansas, Mississippi, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Wisconsin, and West Virginia).
- See Rachel Weiner, Behind the Brewing Voter ID War, Wash. Post The Fix Blog (Mar. 19, 2012, 2:32 PM), http://www.washingtonpost.com/blogs/the-fix/post/behind-the-brewing-voter-id-war/2012/03/19/gIQAkyLXNS_blog.html (surveying the status of controversial voter ID legislation across the nation).
- Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966).
- Id. at 667 (internal citations and quotations omitted); see also Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (“In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.”).
- See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 189 (2008) (citing Harper, 383 U.S. 667) (explaining that the tax was not related to voters’ qualifications).
- See Joel A. Heller, Note, Fearing Fear Itself: Photo Identification Laws, Fear of Fraud, and the Fundamental Right to Vote, 62 Vand. L. Rev. 1871, 1875 n.16 (2009) (asserting that states have these powers, within limits, for both state and federal elections).
- See Richardson v. Ramirez, 418 U.S. 24 (1974) (holding that Section 2 of the Fourteenth Amendment exempts states from having to show a compelling state interest to justify a voting restriction).
- See Crawford, 553 U.S. at 209 (Souter, J., dissenting) (citing Burdick v. Takushi, 504 U.S. 428 (1992)) (recognizing that states may not burden the right to vote pursuant to legitimate abstract interests unless they first make a “particular, factual showing that threats to its interests outweigh the particular impediments it has imposed”); Anderson v. Celebrezze, 460 U.S. 780, 789–90 (1983) (stating that courts must balance the justifications offered by the state with the burden imposed by the law).
- Poll Tax, Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/poll%20tax (last visited Dec. 25, 2012).
- Harper v. Va. Bd. of Elections, 383 U.S. 663, 668 (1966).
- SeeCrawford, 553 U.S. at 209.
- Seeid. at 209–11 (Souter, J., dissenting).
- Seeid. at 186 (citing Ind. Code Ann. § 9-24-16-10(b) (West)), amendedby 2012 Ind. Legis. Serv. P.L. 125-2012 (S.E.A. 257) (West).
- Id. at 211–18 (Souter, J., dissenting) (arguing that the travel costs associated with retrieving various documents coupled with the direct cost of procuring those documents is a significant burden for many citizens to bear in order to vote).
- Id. at 220–21.
- Id. at 215–16 (Souter, J., dissenting) (showing that some citizens would have to pay fees to obtain a birth certificate or passport, plus the associated travel fees, in order to vote).
- Id. at 233, 236–37.
- Seeid. at 198 (implying that free voter ID cards significantly reduce the burden placed on citizens). Both regimes allow voters to use state-approved photo IDs to comply with the voter ID laws; Voter Identification Requirements, Nat’l Conference of State Legislatures, http://www.ncsl.org/legislatures-elections/elections/voter-id-state-requirements.aspx (last visited Dec. 23, 2012) (summarizing the voter ID laws present at the state level in the United States).
- See,e.g., Kan. Stat. Ann. § 8-1234(g) (West) (requiring those seeking a voter ID card to pay $10–$14).
- Seeid. (mandating the presentation of photo ID before being permitted to vote).
- Harper v. Va. Bd. of Elections, 383 U.S. 663, 668 (1966) (holding that requiring the payment of a fee as a condition to obtain a ballot and vote in state elections is invidious discrimination and unconstitutional and underscoring the idea that conditioning civic engagement on wealth is traditionally disfavored).
- U.S. Const. amend. XXIV, § 1 (banning the implementation of poll taxes in federal elections).
- H.B. 351 § 1.2, 2011 Gen. Assemb., Reg. Sess. (N.C. 2011) (asserting that voter ID cards are to be offered to registered voters free of charge).
- Id. § 1.1 (explaining that a driver’s license, learner’s permit or provisional license, special ID card for nonoperators, ID card issued by any entity of North Carolina, other states, or the federal government, U.S. passport, ID card issued by any local government entity, military ID card, tribal ID card, or North Carolina ID card are all state-approved forms of voter ID in North Carolina).
- See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 211–18 (2008) (Souter, J., dissenting) (positing that the expenses incurred while traveling to retrieve identification documents and paying for the documents is a burden).
- Seesupra note 10 and accompanying text for a discussion of the test courts use when analyzing measures that restrict the right to vote.
- 553 U.S. at 209 (Souter, J., dissenting) (Justice Souter unsuccessfully argued that travel expense and document retrieval fees are overburdensome).
- See Adam Gregg, Let’s See Some I.D. – A New Proposal for Voter Identification in Iowa, 57 Drake L. Rev. 783, 815 (2009) (noting that courts have been reluctant to characterize voter ID laws as poll taxes when the voter ID is free). However, a jurisdiction that must receive preclearance under Section 5 of the Voting Rights Act may have such a law struck down by the Justice Department. See Editorial, Texas’ Solution in Search of a Problem, L.A. Times (Mar. 14, 2012), http://articles.latimes.com/2012/mar/14/opinion/la-ed-voter-id-texas-2012 0314 (reporting that the Justice Department was not persuaded by Texas’ plan to offer “free election identification certificates” as citizens without cars would still have difficulty obtaining the certificates). North Carolina is not a “covered jurisdiction” under Section 5. SeeSection 5 Covered Jurisdictions, U.S. Dep’t of Justice, http://www.justice.gov/crt/about/vot/sec_5/covered.php (last visited Dec. 22, 2012).
- See Crawford v. Marion Cnty. Election Bd. (Crawford II), 473 F.3d 949, 954 (7th Cir. 2007) (Evans, J., dissenting) (“Let’s not beat around the bush: [Voter ID laws are] a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.”), aff’d, 553 U.S. 181 (2008).
- Seeid. at 951 (“No doubt most people who don’t have photo ID are low on the economic ladder.”); Brennan Ctr. for Justice, Citizens Without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship and Photo Identification 2 (2006) (“Citizens earning less than $35,000 per year are more than twice as likely to lack current government-issued photo identification as those earning more than $35,000.”).
- See Letter from Thomas E. Perez, Assistant Attorney Gen., U.S. Dep’t of Justice, to C. Havird Jones, Jr., Assistant Deputy Attorney Gen., State of S.C. (Dec. 23, 2011) (on file with author) (explaining that the law would disproportionately affect the ability of minority voters to participate in elections).
- See Bill Cohen, How Voter ID Laws Are Being Used to Disenfranchise Minorities and the Poor, Atlantic (Mar. 16, 2012), http:// www.theatlantic.com/politics/archive/2012/03/how-voter-id-laws-are-being-used-to-disenfranchise-minorities-and-the-poor/254572/ (noting that in response to the Department of Justice’s ruling against the Texas voter ID law due to its disparate impact on the ability of Hispanics and Blacks to vote, Texas Gov. Rick Perry disregarded those facts and characterized the action as an example of “federal overreach”); Feds Are Right to Reject Voter ID Bill, Charlotte Observer (Mar. 12, 2012), http://www.charlotteobserver.com/2012/03/12/3093139/feds-are-right-to-reject-texas.html [hereinafter Feds Are Right] (positing that voter ID laws restrict the ability of thousands of minority and poor citizens to vote as they do not possess the requisite identification documents to vote); cf. Donna Brazile, GOP, Protect Dorothy Cooper’s Right to Vote, CNN (Oct. 15, 2011), http://www.cnn.com/2011/10/15/opinion/brazile-voter-id/index.html (indicating that the Tennessee voter ID law prevented an elderly Black resident, whose time voting predates the Voting Rights Act, from being able to vote).
- See E.J. Dionne Jr., How States Are Rigging the 2012 Election, Wash. Post (June 19, 2011), http://www.washingtonpost.com/opinions/ how-states-are-rigging-the-2012-election/2011/06/19/AGCdB3bH _story.html (claiming that the Republican Party is introducing these measures to suppress turnout of voters who were instrumental to Democratic victories in the 2008 election season).
- Seeid. (implying that supporters think the laws will restore voter confidence in a system supporters believe to be rife with fraud); Chris McDaniel, Voter ID Law Inspires Integrity in Elections, Laurel Leader-Call (Mar. 27, 2012), http://leadercall.com/opinion/x1940319290/Votearr-ID-law-inspires-integrity-in-elections (asserting that voter ID laws will stop fraudulent voting).
- See Spencer Overton, Voter Identification, 105 Mich. L. Rev. 631, 644–48 (2007) (positing that anecdotes of fraudulent voting are misleading about the frequency of fraud and uninformative as to the magnitude of fraud); Cohen, supra note 35 (offering that there is scant evidence of voter fraud); Judith Brown Dianis, Five Myths About Voter Fraud, Wash. Post (Oct. 7, 2011), http://www.washingtonpost.com/ opinions/five-myths-about-voter-fraud/ 2011/10/04/gIQAkjoYTL_story.html (“Prosecutable cases of voter fraud are rare.”); Eric Lipton & Ian Urbina, After 5-Year Effort, Scant Evidence of Voter Fraud, N.Y. Times (Apr. 12, 2007), http://www.nytimes.com/2007/04/12/washington/12fraud.html?pagewanted=all (providing that a 5-year Bush administration investigation resulted in only 120 people being charged with voting fraud).
- See Jack B. Weinstein, The Role of Judges in a Government of, by, and for the People: Notes for the Fifty-Eighth Cardozo Lecture, 30 Cardozo L. Rev.1, 138–39 (2008) (noting that Georgia’s attorney general claimed absentee voting has the most potential for fraud); Feds Are Right, supra note 35 (mentioning that absentee voting fraud is a problem); Andrew Rosenthal, Voter Fraud: Does It Happen?, N.Y. Times Loyal Opposition Blog (Nov. 11, 2011, 5:25 PM), http://loyalopposition.blogs.nytimes.com/2011/11/07/voter-fraud-does-it-happen/ (stating that voter fraud occurs most often because of absentee ballots and corrupt poll workers or elected officials).
- See Ctr. for Democracy & Election Mgmt., Am. Univ., Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform46 (2005), available at http://www1.american.edu/ia/cfer/report/full_report.pdf (“Absentee ballots remain the largest source of potential voter fraud.”); supra note 39 and accompanying text for additional discussion on fraud in absentee voting.
- See,e.g., Eric Russell, Maine Votes to Continue Election Day Registration, Bangor Daily News (Nov. 8, 2011), http://bangordailynews.com/2011/11/08/politics/early-results-indicate-election-day-voter-registration-restored/ (noting that Maine’s Election Day registration process has existed for 38 years); Keith Shortall, Bring Same-Day Registration Back? Maine Votes, Nat’l Pub. Radio (Nov. 6, 2011), http://www.npr.org/2011/11/06/142063994/bring-same-day-registration-back-maine-votes (insisting that in the 38 years of same-day voter registration, there have been only two cases of fraud); Krisa Kano, Push on for Same-Day Voter Registration, MetroWest Daily News (Nov. 3, 2011), http://www.metrowestdailynews.com/news/x916007823/Push-on-for-same-day-voter-registration (referencing Maine, New Hampshire, Minnesota, Wisconsin, Idaho, Wyoming, Montana, and Iowa as states with Election Day voter registration programs).
- See Alaska Stat. Ann. § 15.15.225(a) (West) (“Before being allowed to vote, each voter shall exhibit to an election official one form of identification, including an official voter registration card, driver’s license, state identification card, current and valid photo identification, birth certificate, passport, or hunting or fishing license; or an original or a copy of a current utility bill, bank statement, paycheck, government check, or other government document; an item exhibited under this paragraph must show the name and current address of the voter.”) (emphasis added).
- President Lyndon B. Johnson, Voting Rights Act Signing Statement (Aug. 6, 1965), available at http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650806.asp.