Justin Levitt from Loyola Law School says lawmakers should listen to recent comments from two prominent jurists if they want to safeguard votes without posing undue hurdles for eligible citizens.
Judge Richard Posner wrote the 2007 appellate opinion upholding Indiana’s strict photo ID law—the first legal one in the country—against a challenge. Justice John Paul Stevens wrote the 2008 opinion for the Supreme Court upholding that upholding. Both have recently publicly mused about the merits of arguments by the judges that disagreed. That sort of reflective appreciation for the opposing view is sufficiently unusual that it has provoked a flood of commentary.
And that flood of commentary has largely lost sight of two very important distinctions. First: ID laws are not all the same.
Related Link: Lyle Denniston looks at Judge Posner’s Voter ID comments
Every state makes sure, when people come to the polls, that they are who they say they are. It’s the details of how they do this that matter. Some states compare signatures. Many see whether they can match up Social Security digits, or ask for a document like a utility bill or paycheck, off a long list. Some have a shorter list of approved documents. Some ask for a government-issued photo ID card from those who have one, and demand a special affidavit from those who do not.
And some now require specific photo ID cards from all but the legally indigent, preventing eligible voters who do not have photo ID on Election Day from casting a valid ballot at the polls. (Most such states have more lax documentary requirements for voting absentee.) Even within this category, there is variety: some accept student IDs, for example, and some do not.
The vast majority of Americans have valid photo IDs. But some don’t. And without ID, it can be hard to get ID. These Americans are at the nub of the controversy. ID rules raise few eyebrows when eligible citizens aren’t left behind—when security comes with a safety net so that real eligible citizens don’t get shut out. But when the rules get sufficiently restrictive that real people have problems, disputes follow.
There are still few states in this most restrictive set. Indiana and Georgia were first, with laws passed in 2005; Missouri followed in 2006; Kansas, Tennessee, Texas, and Wisconsin in 2011; Pennsylvania in 2012; and Arkansas, North Carolina, and Virginia in 2013.
Court challenges have followed in each state but Arkansas and Virginia. Laws have been invalidated in Missouri and (for the moment) Wisconsin, and blocked temporarily in Georgia, Pennsylvania, and Texas. But ID lawsuits are not all the same either.
Litigation against the newest, strictest, photo ID requirements has been all over the map. Not all of it is of equal quality. Some of the lawyers are experts in these sorts of cases. Some of the suits are well-prepared. Others, not so much. And a legal approach that works well in one state may be a disaster in a different context with different facts.
The claims with the least chance of success attack the abstract power of the legislature to regulate election rules like identification requirements. If a legislature can ask voters to register to vote or to sign in to a poll book, it’s pretty clear that it has similar authority elsewhere in the same area.
Another type of claim attacks tribal partisan motivation: laws designed, in the words of one activist, to “kick Democrats in the butt.” Though I think such rules improper, the Supreme Court has strongly resisted legal claims along these lines. And claims of partisan effect (which are related, but different) have never found durable homes in a legal structure built largely around individual rights.
Still another set of claims attack strict ID laws as abridging the right to vote on account of race or ethnicity. ID laws are not inherently racist. Neither are literacy tests or poll taxes or purges or district lines. But any tool can be abused. And for incumbents who feel threatened by demographic change, a skewed impact isn’t always coincidence.
The racial impact of strict ID laws is not uniform: The communities most affected in Kansas are different from those in Tennessee. Moreover, even with demographic disparity, abridgement of the vote on account of race is difficult to prove. In areas with a more profound history of discrimination, or present evidence of misconduct, these claims are more likely to resonate. (I’m looking at you, Texas.)
Another set of claims aims not at the ultimate impact of ID laws, but at their rollout: too fast, too sloppy, too little information. Courts in Georgia and Pennsylvania have pressed pause, giving states time to ensure that education and implementation are uniform. But these are only temporary stays.
A final set of claims is both the most common and the most varied. The Constitution requires electoral regulations’ burdens to be justified. The greater the burdens, the more justification is necessary.
The hurdle here is proof of burden sufficient to satisfy a court. With one exception so far, every case attacking strict ID laws has attempted to stop the laws before they take effect. It’s tricky to find people who have already been blocked from voting by a law that’s still in the future.
In response, some plaintiffs have bulled ahead without proof of harm.
The smarter ones have turned to proxies. For example, local statistics trying to assess who doesn’t have valid ID. Some of this work has been shoddy, and rightly rejected. But judges have too readily swept aside valid data as well.
Smart challengers have also looked to actual citizens who don’t have the necessary kind of ID, and who have real difficulty getting it readily. People who don’t have ID are often marginalized in other ways as well: finding individuals (and convincing them to engage in a lawsuit) if you’re not already in their community is hard work. Some challengers make more effort than others. They have better claims as a result. There are a few such cases still working their way through the courts.
This all comes back to the jurists restarting the recent conversation. They were talking to lawyers, explaining gaps they perceived between the legal cases they adjudicated and the reality. (Some lawyers appear to have listened; some, apparently, have not.)
But they were also talking to policymakers. The legal claims above are awkward devices, in many ways, for ensuring that legislators do more good than harm. A more thoughtful legislative process—ensuring security without undue hurdles for any eligible citizen—would leave a whole lot less reason for judges to muse. That should be an aspiration all can share.
Justin Levitt is an election law professor at Loyola Law School, Los Angeles, and a national expert on the law of democracy.
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