Voting Rights Act, State Constitutions Face Challenges As Voter ID Debate Expands

[Image courtesy of Hispanically Speaking]

Recent events make it abundantly clear that the focus (and furor) over voter ID could end up having consequences far beyond the simple question of whether voters will be asked to produce a photo ID at the polls.

In the past, the debate between ID supporters and opponents (in places like Indiana) was primarily legislative and largely defined by the partisan composition of the statehouse and the governor’s mansion. As the debate has expanded, however, it has increasingly begun to sweep in new combatants.

In states covered by Section 5 of the Voting Rights Act – like South Carolina and Texas – passage of voter ID brought the United States Department of Justice (DOJ) into the conversation. Here, too, partisanship helps explain the change; unlike earlier in the decade, when Georgia’s photo ID law was precleared by a DOJ controlled by the GOP, the current Democratic-controlled DOJ has objected to the new laws in South Carolina and Texas and is awaiting submissions from other Section 5 states. These objections have triggered lawsuits that seek not only to reverse the DOJ’s objections but to eliminate Section 5 review entirely – a decision that would have a considerable impact on the consideration and passage of election laws, especially in the South.

In other states (like Mississippi, Missouri and Wisconsin) the voter ID debate has run headlong into state constitutions that guarantee citizens the right to vote. In those states ID opponents are arguing against, and judges are invalidating, photo ID on the basis that it violates such state constitutional protections. In still other states (like Minnesota), Democratic governors are raising constitutional objections to photo ID as justification for their vetoes of such laws. These states have begun to turn to the constitutional amendment process as a method for overcoming these judicial and political obstacles to photo ID. The degree of change in state constitutions could be significant as a result.

I have often said in the past that the voter ID debate has changed little over the years – and, to the extent we’re discussing the essential arguments of supporters and opponents that’s true. But as the debate has expanded – and brought other elements of federal and state law into the discussion – voter ID is beginning to have the potential to remake the American electoral system in far-ranging ways for years to come.