Ending Discriminatory Voter ID: Let’s Affirm The Right To Vote

The time has come for a national conversation about guaranteeing the right to vote—based on one’s legal eligibility, and not the form of ID in their wallet.
On March 14, Pennsylvania became the eighth state to toughen voter ID requirements in the past year, following Alabama, Kansas, Rhode Island, South Carolina, Tennessee, Texas and Wisconsin. While these voter ID laws take many forms, the most restrictive require voters to obtain a government-issued photo ID to get a ballot on Election Day, which voting rights advocates say could deter several million people who lack birth certificates and other documentation from obtaining the ID and voting.
To date, the conversation on voter ID has followed well-worn contours. Legislative advocates for these laws, almost all Republicans, claim that they uphold election "integrity" by curbing voter impersonation fraud. Opponents say the laws are policing a problem that barely exists and that current law enforcement aptly addresses. In addition, the laws intentionally place unfair requirements on specific demographic sectors that lean Democratic, which can ultimately lead to disenfranchisement. 
We need to get off this treadmill and shift this political conversation to a new level by passing laws or changing state constitutions to guarantee the right to vote. 
Fortunately, there have been a series of recent developments—decisions by state judges tossing out voter ID laws as unconstitutional and the U.S. Justice Department suspending laws from taking effect in some states covered by the Voting Right Act—that, if upheld through Election Day, will protect voters. 
These stances point to what should be a national conversation about the U.S. Constitution and its failure to guarantee an affirmative right to vote. Though many people assume that voting is a fundamental right established in the Constitution, in fact there is no such provision. As a result, partisans in states have created laws that broadly restrict voters’ ability to cast their ballots, as seen vividly in this presidential election cycle.
Pushing Back On Voter ID
Even before the Pennsylvania voter ID legislation became law, two state courts successfully enjoined the state of Wisconsin from enforcing a new restrictive voter ID law. On March 6, the Wisconsin Circuit Court in Milwaukee Branch of the NAACP v. Walker granted a temporary injunction preventing the state from enforcing Act 23, the state’s voter ID law, in the upcoming primary election on April 3. Then, on March 13, a second judge struck down the same voter ID law in League of Women Voters v. Walker. 

In both cases, Act 23 was ruled unconstitutional based on the Wisconsin Constitution’s affirmative right to vote. Though the Wisconsin Department of Justice has appealed these decisions to the state Supreme Court, the analysis of these cases spotlights the importance of a state and federal constitutional right to vote, and the inherent conflict between voting rights and regressive forms of voter ID laws.
Article III Section I of the Wisconsin Constitution states that, “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.” In Section II of that same article, the constitution enumerates the only voting regulations that the state legislature may enact. Those regulations are defining residency, providing for voter registration and for absentee voting, excluding felons and those determined mentally incompetent, and extending the right to others by ratification of the people. 

In League of Women Voters v. Walker the court found that Act 23’s strict voter ID requirement was unconstitutional because it went beyond the powers granted to the legislature in the constitution. An important implication of this holding is that it reinforces that the voter qualifications enumerated in the state constitution may not be overridden by the state legislature. By requiring voters to obtain specific forms of photo ID or another type of ID, the legislature impermissibly creates additional requirements for voters, which are not required under the constitution. 
In NAACP v. Walker, the court noted that the constitutionally enshrined right to vote warranted a strict scrutiny analysis of Act 23. This type of scrutiny requires the state to prove that Act 23 is a regulation narrowly tailored to serve a “proper and compelling government interest.” While noting that the purported interest of Act 23 was to protect the integrity of the election process, the court examined evidence based on 40 voters’ affidavits describing their hardships in obtaining a voter ID. In doing so, it found that the law unconstitutionally burdened individuals’ ability to vote.

NAACP v. Walker is important because it clearly distinguished voter ID cases brought under the federal constitution – where there is no explicit right to vote – from those brought under a state constitution granting a right to vote. Significantly, the court distinguished the Wisconsin case from a similar case challenging an Indiana voter ID law, brought before the U.S. Supreme Court in Crawford v. Marion County Election Board. The court clarified that NAACP v. Walker was “founded upon the Wisconsin Constitution which expressly guarantees the right to vote while Crawford was based upon the U.S. Constitution which offers no such guarantee.” 
Both courts specified that though Act 23 was unlawful, another voter ID law could be upheld under different circumstances. Act 23 was unconstitutional because of its overly restrictive nature, which did not allow for an alternative means of proving identification or of casting a provisional ballot, and which effectively disqualified otherwise constitutionally qualified voters. 
The holdings of these two cases of Milwaukee Branch of the NAACP v. Walker and League of Women Voters v. Walker are important in looking to other states’ voter ID laws, which seek to unconstitutionally impose additional eligibility requirements on voters. These cases demonstrate that for the right to vote to be a fundamental right, it must be stated unequivocally in the state constitution, and it must be explicitly protected from legislation trying to abridge that right. 
Transforming The Legal Landscape
This year will see much more litigation over voter ID laws. The states that passed voter ID laws in addition to Wisconsin in 2011 include Alabama, Kansas, Rhode Island, South Carolina, Tennessee, and Texas. 
Some of these laws are more restrictive than others. For example, South Carolina requires all voters to have a government-issued ID and only allows voters to cast a provisional ballot if they can obtain an ID before the election is certified. On the other hand, Kansas exempts those with permanent physical disabilities from obtaining an ID if it would be a hardship, and also allows those without voter IDs to cast a provisional ballot. Even less restrictive is Rhode Island. Effective until 2014, the state law allows for various non-photo forms of identifications including an employee ID, debit card, or even health club ID and allows voters to cast a provisional ballot.
Furthermore, the enforceability of these laws is not certain. Alabama, Texas and South Carolina are “covered” jurisdictions under Section 5 of the federal Voting Rights Act, meaning that these states have a history of discriminatory voting practices, and therefore, must seek “preclearance” from the U.S. Department of Justice or from the D.C. District Court in order to enact any new voting change. If the state cannot prove that the voting change does not deny or abridge the right to vote, then the change will not be precleared. 

Texas and South Carolina were denied preclearance by the DOJ, leading both states to challenge this denial, and to challenge the constitutionality of Section 5 – a question the U.S. Supreme Court is likely to decide in the near future. Additionally, because its law will not go into effect until 2014, Alabama has yet to ask for preclearance. Mississippi – another state covered by Section 5 of the Voting Rights Act – passed a citizens’ initiative to create a voter ID law, but without passing enacting language necessary for the law to go into effect.
Yet, more voter ID laws loom on the horizon as many states are still debating the issue. For example, Virginia’s voter ID bills passed its General Assembly this year, though the state must still preclear the voting change. Additionally, Minnesota proposed a constitutional amendment to require photo IDs on Election Day, a measure that passed the Minnesota House and Senate Rules Committee on March 21, but has already been vetoed once by Democratic Governor Mark Dayton.
Time For A New Approach
States have had voter ID for years—only they have not been punitive or blocked eligible voters’ access to the ballot. Moving forward, a state enacting a voter ID law must ensure that it is not so restrictive as to impair the right to vote. 
To ensure strict scrutiny of new voter ID laws it is imperative to support an affirmative right to vote both at the state level and at the national level, so that all Americans’ voting rights are protected. Legislators may act to regulate the nature of elections, but they must not override the constitutional right to vote. 

On the federal level, a bill, H.J.Res. 28, was introduced to amend the U.S. Constitution to include an affirmative right to vote. Introduced by Rep. Jesse Jackson, Jr. and cosponsored by 48 Members, including all but three members of the Congressional Black Caucus, the legislation is pending in the House. Amending the U.S. Constitution is much more difficult than amending state constitutions, however.  
If the right to vote were incorporated into every state constitution, states would have to prove that new voter ID laws are necessary to serve a compelling state interest, and that these laws are more narrowly tailored to the state’s interest in promoting pure elections. A constitutional right to vote is necessary to ensure that eligible voters are not disenfranchised by politically motivated qualifications.

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