Ballot Law: The constitutionality of voter ID laws

July 20, 2011

Ballot Law(Editor’s Note: With 2010’s Citizens United Supreme Court ruling, the field of election law has seen, and continues to see, many significant changes.  Throughout the month of July, we’ll be looking at important developments in the area.)

For the first post on Stephen Colbert’s super PAC, click here.

For the second post on Arizona’s Matching Funds law, click here.

Voter ID laws, which require an individual seeking to vote in person to provide government-issued photo identification, have become increasingly common across the country.

The motivation for these laws as stated by supporters is to prevent voter fraud, while detractors claim the laws are designed to suppress low-income and minority voters.

With legal challenges to the laws undoubtedly to follow, the most important question about these laws is, “are they legal?”

That’s actually a fairly complicated question.

Before a 2008 Supreme Court ruling, they would probably be unconstitutional because of 1966’s Harper v. Virginia State Board of Elections.

The case dealt with a “poll tax” that mandated, as a prerequisite to voting, the payment of a $1.50 tax (about $10 today).

The stated intent of that law was to weed out voters who didn’t care enough about public affairs to pay the $1.50 tax.

The actual intent, as commonly accepted by contemporary historians and legal scholars, was to suppress votes from African Americans and other minorities.

Intent aside, Harper held restrictions on the right to vote that are unrelated to voter qualifications unconstitutional.

Harper didn’t elaborate on “voter qualifications,” though, but we can assume that at least two factors – wealth and interest in the political process – aren’t in this category.

2008’s Crawford v. Marion County Election Board didn’t elaborate further on these qualifications since no majority opinion emerged (only a plurality).

The case was about an Indiana voter ID law that required residents to present government-issue photo ID before voting.

While there was no majority agreement on voter qualifications, there was agreement that the voting restrictions were valid, because they did not present a significant burden to an individual’s constitutional right to vote.

The main reason the case came down like it did is because Indiana provides the acceptable photo IDs to its citizens for free.

So at a minimum, any other state with voter ID laws hoping to win a legal battle over them must provide free IDs to its residents.

But will that be enough in any future Supreme Court case on the issue?

Possibly, but what if a plaintiff emerges in the future that can demonstrate these restrictions  were a significant burden to his right to legally cast his ballot?

The two concurring pluralities agreed on that issue, too: it doesn’t matter.

Really, the only John Paul Stevensthing that has changed since 2008 is the makeup of the Court. 

Namely, it’s missing Justice John Paul Stevens, who wrote the Crawford plurality opinion.

Stevens was widely known as being the Court’s negotiator, and Crawford’s split plurality is probably his doing.

Without his presence, Crawford would have probably been a 5-4 ruling along ideological lines, with the holding largely dismantling, if not completely overturning Harper.

If another voter ID case ever gets to the Supreme Court, though, this outcome is unlikely, since the Crawford precedent is already established.

So while many may be disappointed with the fact that voter ID laws are largely constitutional, they can take heart in the fact that the fundamental right to vote under the Due Process Clause has been largely left intact.