Constitution Check: Are driver’s licenses the answer to voter ID laws?

Lyle Denniston, the National Constitution Center’s constitutional literacy expert, looks at the debate in two states about the role of the driver’s license as a ticket to the right to vote.

THE STATEMENT AT ISSUE:

“The closure of 31 Alabama driver’s license offices raises serious concerns about your administration’s commitment to provide critical services to Alabamians in need of identification to vote.  With the implementation last year of a strict voter photo ID law, these offices took on a responsibility not only to serve motorists but to ensure that eligible citizens can obtain the ID needed to exercise their constitutional right to the franchise….Common Cause urges you to reconvene the legislature and propose an amendment to Alabama law to repeal the voter ID requirement….At a bare minimum, we urge you to propose amendments to allow voters to provide alternative forms of identification, including an affidavit with a signature match.”

 – Excerpt from a letter on October 21 to Alabama Governor Robert Bentley, from Common Cause, a liberal election reform advocacy group, reacting to the closing of offices where residents can get driver’s licenses; the closings will occur mainly in counties with heavy populations of black residents.

WE CHECKED THE CONSTITUTION, AND…

 From the Constitution’s very beginning, there has been a somewhat uneasy tension between national and state governments over who gets to vote and how voting is done.  Over time, however, the two levels of government have cooperated in steadily expanding the right to vote from the white male, property-owning electorate that existed at the beginning.

The modern civil rights revolution, with Congress taking the lead by passing a series of voting rights laws in the 1960s, renewed the tension but did not stall the expansion of the franchise.  In recent years, a revival of states’ rights sentiment has led to a series of test cases in the Supreme Court as southern states, in particular, grew resentful of the federal government’s oversight of their election processes.

That resistance succeeded, in a major way, two years ago when the Supreme Court made one of the key provisions of the 1965 Voting Rights Act unenforceable.  The court, splitting 5-4, ruled in an Alabama case (Shelby County v. Holder) that the formula for imposing a federal veto power over new state voting laws was unconstitutional because it was based on out-of-date information about discrimination in voting.  (Congress would have the power to update the formula in order to revive the federal veto, but it has not done so, and seems unlikely to do so.)

As a result, states (mainly in the South) that previously had to get advance approval in Washington before changing any of their voting laws were now free to reclaim much of their power to define the right to vote – so long as they don’t pass laws that have the clear effect of discriminating on the basis of race and ethnic background.

The recovery of that authority has led to a wave of new state laws imposing photo ID requirements for those seeking to register to vote.  The courts are now trying to sort out whether such restrictions do impair the right to vote; the results so far are mixed.

By contrast, a few states are using their authority over election processes to expand the right to vote by making it easier to register.

Those two cross-currents are now visible in what is happening in Alabama, and in California.  Both involve the role of the driver’s license as a ticket to the right to vote.  Although there are millions of Americans who do not drive and thus would not (or could not afford to) seek such a license, millions would find it the most convenient and least expensive way to obtain a photo ID that would then enable them to register as voters.

Alabama is going through a budget crisis, and one of the money-saving moves that state officials have recently made is to close 31 offices – mainly in rural counties – where driver’s licenses have been available.  The state employees who staffed those offices are being relocated to more urban areas.  As it happens, most of those offices are in counties where blacks have a majority – sometimes 70 percent or more – of the population.  They are centered in what has historically been called the state’s “Black Belt” because of that population data.

Protests have arisen, accusing state officials of shutting down those offices in order to keep minorities from voting.  State officials insist that they had no such motive.  If the 1965 Voting Rights Act were still fully in effect, as before the Supreme Court’s Shelby County decision, it is a close question whether Alabama would have been able to close those offices with the resulting heavy impact on minority citizens.  But, in the new legal world, a challenge to those closings as illegally race-based would have a harder time succeeding in court, although that may be attempted.

Turn, then, to California.  This month, the governor signed into law a new provision that comes close to making voter registration virtually automatic.  Under the law, when a person goes for a driver’s license, all the data needed to qualify for a right to vote is gathered at the same time, and that data is then sent off to state election offices as the basis for an easy registration.

Oregon was the first to adopt that approach, so the idea may be catching on, at least in more liberal western states.

Again, however, the fact that this easing of registration requirements is tied to the right (and the opportunity) to drive, it is doubtful that the minority poor will be able to take great advantage of that option.   It will take the creation of more expansive alternatives to getting a photo ID to reach those potential voters.

However, as long as there is a worry among officials, in more than a handful of states, that voter fraud is a significant problem (even though the evidence of that seems to be scant), the nation is not likely to see a wide wave of new voters qualifying to cast ballots.  Such a wave may be created, perhaps, only if there is a strong new grass-roots movement bringing pressure to spread the franchise.