With Election Day fast approaching, states are scrambling to defend their voter identification laws. After the Seventh Circuit Court refused to re-hear a case challenging Wisconsin’s voter ID law, the Supreme Court put the decision on hold until it could decide whether or not to hear the case. Wisconsin requires photo identification in order to vote in-person or absentee. Meanwhile, a federal district judge in Texas ruled the state’s voter ID law unconstitutional. The Fifth Circuit Court put the decision on hold, deciding that it was too late in the election cycle for it to be implemented. On Saturday, the Supreme Court affirmed that decision, granting Texas permission to require voter IDs in the November election. The Seventh Circuit decision relied heavily on case law and statutory interpretation of the Voting Rights Act (VRA). But it is the dissent, written by conservative judge Richard Posner, that is getting all the attention.
I believe that voter ID laws are unconstitutional because they place an undue burden on voters by restricting their right to vote. My argument, however, has nothing to do with race, even if the laws happen to affect minorities more than others. The legal issue is not one of racial disparity. Requiring a photo ID violates our collective voting rights simply because it unnecessarily makes it more difficult to vote. The more common approach in court, though, is to assess the constitutionality of voter ID laws under the VRA. However, college students, the elderly, disabled, displaced, and homeless individuals are also likely to suffer, even if they are white. The VRA does not apply to these individuals, which is why I advocate a more inclusive approach based on fundamental rights theory.
Judge Easterbrook, who wrote the opinion of the court, and Judge Posner both delve into the statistical details of how the laws affect voter turnout by race and whether whites are more likely than blacks to possess the documents necessary to obtain photo ID. The Seventh Circuit’s decision relies primarily on its interpretation of Section 2 of the VRA, which forbids any voting law that denies racial minorities equal opportunity to participate in an election. The court acknowledges that the photo ID law harms minorities (mainly blacks and Hispanics) more than it does whites. However, it claims that that is not because of the law itself, but because of external circumstances the government cannot be held accountable for, such as poverty, lack of economic opportunity, or lack of education. The state should not have to go out of its way to accommodate everyone, says the court; rather, it is those citizens who must make the effort to accommodate the government, presumably for the benefit of other citizens.
This argument has one very important implication that has nothing to do with voter ID laws: It separates the downstream effects of a law from the law itself. For example, felony disenfranchisement survives Section 2 even though it disproportionately affects minorities, who are more likely to have a felony conviction. The reasoning is that felon disenfranchisement laws themselves are not responsible for the fact that minorities are more likely to be convicted of crimes.
But the VRA was not created from nothing: Voting is a fundamental right, protected by the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. Any restriction placed on the exercise of a fundamental right is subject to strict scrutiny upon judicial review. Such a law can only be upheld if it serves a compelling interest and provides some greater societal benefit that outweighs the burden of restriction. There is no reason we cannot house our argument in the broader jurisprudence of voting rights. As counterintuitive as it may seem, often, the more specific the language of a law is, the more loopholes can be found. In this case, the only way the government can violate Section 2 of the VRA is if it institutes a practice that directly results in discrimination. Because everyone, regardless of race, is required to present a photo ID, the law is neither directly discriminatory nor indirectly discriminatory in way that is explicitly forbidden by the VRA (e.g. literacy tests).
Voter ID laws place an undue burden on voters with little or no benefit to society. That a law affects one group more than another is irrelevant—if it imposes any burden, it must be held accountable. This is where Judge Posner’s argument grows weak. His description of the political situation is analogous to a game of tug-of-war between Democrats and Republicans, in which the Republicans are allowed more players than the Democrats. Because the Republicans have an unfair advantage, the game is rigged. But I would argue that the game itself is illegal, not just the way it happens to be played. Judge Posner says that because conservative states are much more likely to pass voter ID laws, it must be a case of Republicans trying to suppress Democrats. If both liberal and conservative states passed these laws, then it would be “politics as usual,” and the courts would not have to get involved. Politics as usual is not an excuse to restrict our rights—a cop will still ticket you for speeding, even if everyone else is.
Thinking of voter ID laws as a conflict between whites versus blacks or Republicans versus Democrats distracts us from the real adversaries: government and rights. The states claim that photo ID laws reduce voter fraud. But a Wisconsin federal district judge gave an example of how the photo ID laws are ineffective. If a man regularly casts absentee ballots for his dead wife, what is to stop him from sending a photocopy of her ID along with the ballot? If voter fraud could actually sway an election, there is no reason people could not make fake IDs to go along with their fake ballots. A relatively large source of voter fraud comes from non-citizens voting. These non-citizens go through the same registration process as everyone else but lie about their citizenship status. It is unlikely that these people will be caught with a single glance at their photo IDs. After all, our drivers’ licenses say nothing about our citizenship status.
The government’s only legitimate interest in voter ID laws is preserving the public’s confidence in elections. In 2000, Bush and Gore’s battle over Florida made the threat of election fraud very real. Political candidates who lose today are more likely to blame election fraud than their predecessors. Before 2000, there was an average of 94 election-related lawsuits per year. Today, there are over 240. The concept of a representative democracy is built on the public’s understanding that the people in office, good or bad, were chosen by them. Politicians do not rule the people; they are the people. That is what makes the United States different from other republics: our faith in elections. It is important that our laws, in turn, serve to protect that faith so that our government is stable, functional, and enduring.
However, the voter ID laws harbor no connection to that interest; all they do is lessen the chances of voter impersonation, which is when a person goes to the polls and votes, pretending to be someone else. Out of the one billion votes cast since 2000, there have only been thirty-one cases of voter impersonation. It is safe to say that voter impersonation is not a significant threat to the sanctity of our elections. Therefore, the benefit of the voter ID laws is minuscule compared to the cost they impose upon our rights.
The only reason the public fears voter fraud is because the people who passed these laws draw attention to a problem that barely exists outside of the abstract. The various lawsuits and media campaigns are raising awareness to the dramatic costs voter ID laws could have—Wisconsin currently provides free photo IDs to those who make an effort to get them. Of course, nothing is really free but just another burden for taxpayers. Hopefully, those who think the voter ID laws do not affect them now will begin to understand the latent cost of these laws in terms of their constitutional rights, rather than just their wallets.