The following piece was contributed by Seattle attorney Jonathan Collins.
For (mostly) Republican-controlled State legislatures, the flavor of the last decade has been voter ID laws; 22 states have implemented strict identification requirements since 2003. So, are these laws constitutional? Like most legal questions, the answer is: “maybe.” Let’s take a look at three viable legal theories for challenging these laws.
The Voting Rights Act (VRA)
Section 2 of the VRA prohibits a State from imposing any procedure that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race” or language minority status (1). Under the VRA, a challenged law need not be intentionally discriminatory—a voting procedure need only “result” in abridging the right to vote to be invalid.
Proponents of voter ID laws should be worried about this. Some claim that there is an ulterior motive lurking beneath these laws, but let’s assume that there isn't; let’s assume that these laws are not a scheme meant to disguise voter suppression and that these legislatures are sincerely concerned about voter fraud. It doesn't matter, because the legislative intent underlying the law makes no difference to the law’s validity—only its impact does (2).
Courts also sometimes consider other factors, including whether minorities face other inequalities (such as in education or health), and whether the policy underlying the challenged law is tenuous. The thrust of these factors seem to weigh against voter ID laws’ validity. For instance, in Veasey v. Perry, the court found that Texas’ voter ID law violated Section 2 of the VRA, in part because the policy underlying the law was tenuous—Texas was unable to show that voter fraud was a serious enough problem to justify the burden on voting rights.
The 24th Amendment provides that a citizen’s right to vote may not be “denied or abridged . . . by reason of failure to pay any poll tax.” The Supreme Court has said that the 24th Amendment “nullifies sophisticated as well as simple-minded modes of impairing the right [to vote] guaranteed.”
Should we expect to see voter ID laws challenged on this front? Perhaps, but I think Section 2 of the VRA is a better strategy—courts are mixed on whether voter ID laws violate the 24th amendment. The Supreme Court hasn’t addressed the question of poll taxes, but at least two federal courts have stated that incidental costs—time, transportation, etc.—do not amount to a poll tax. As one court noted, registering to vote and the act of voting (at least, in person) already have incidental time and transportation costs that clearly cannot be considered poll taxes. However, those same courts indicated that charging citizens directly for required ID or mandating citizens to obtain other documents, such as a birth certificate, could be considered a poll tax. Generally, then, courts do not dispute that voter ID laws impose costs on citizens. The only question is whether these costs amount to “poll taxes” in the legal sense, and some courts seem less likely to find incidental costs to be poll taxes.
It’s still possible for the poll tax argument to gain traction. Conservative judge and economist Richard Posner wrote a fantastic dissent in one case arguing that voter ID laws do impose a poll tax.
The Due Process Clause
The Fourteenth Amendment provides that “No State shall . . . deprive any person of life, liberty, or property, without due process of law.” The “liberty” protected by this amendment includes fundamental constitutional rights, such as the right to vote. For laws like these, the court applies a balancing test weighing the State’s interest in a given regulation against the burden on voting rights.
A fantastic example is Veasey v. Perry (3). The court found that, although the State had a compelling interest in preventing fraud, it failed to show sufficient evidence of in-person voter fraud (i.e., the kind of fraud that the law would actually address). Basically, the State couldn't justify the substantial burden the law imposed on citizens’ constitutional right to vote. This burden was exacerbated by the unequal impact on racial minorities and the poor. Veasey was appealed, and it will take some time for it to play out, but that case will likely determine the fate of similar laws around the country.
Ultimately, these laws will face an uphill legal battle, especially under the VRA and the Constitution. The right to vote is the most important because it protects all other rights (4), so courts are suspicious of any law that results in fewer citizens getting to the polls. It’s possible that states may be able to justify the burdens imposed by these laws, but so far, courts remain unconvinced that in-person voter fraud is a serious enough problem to warrant substantial infringement on constitutional rights.
Jonathan Collins is an attorney from Seattle, Washington
(1) 52 U.S.C. § 10301(a)
(2) Why do courts not care about a legislature’s intent? Because prior to the VRA (enacted in 1965), State legislatures (mostly in the South) were inventing all sorts of creative and wacky ways to deny minorities the right to vote—literacy tests, grandfather clauses, local party membership requirements, quirky district line-drawing, etc. And these legislatures always had seemingly-legitimate, seemingly-innocuous explanations for implementing these kinds of laws, some of which resulted in complete denial of the vote to non-whites. So, Congress responded with the VRA and instructed courts not to look at those explanations—only look at the result. If states feel like they have a legitimate concern that they need to address with these laws—regardless of the disproportionate impact—they should convince their federal legislators to amend the VRA.
(3) Veasey is a really long opinion, but I would recommend reading it if you are curious about how courts will analyze these laws. Veasey confirmed my suspicion—the court found that the law violated the 14th and 15th Amendments of the Constitution and also Section 2 of the Voting Rights Act, However, the court also found that the ID law was not a poll tax.
(4) As the Supreme Court once said, “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”