Voter ID: The New Rules of Engagement

[Image via Hispanically Speaking News]

Yesterday was a big day in voter ID news: Texas’ Attorney General formally asked the U.S. Supreme Court to take up the case challenging the state’s ID law, a federal appeals court upheld Virginia’s photo ID law, Michigan’s Senate gave up on enacting its own version of strict photo ID in the current session and an Arkansas legislator filed a bill seeking to resurrect that state’s photo ID law.

The voter ID issue never quite went away, but it’s clear with the 2016 election results that the issue is about to experience a resurgence in state capitols, and maybe even Congress. If and when that happens, it’s important to note how the voter ID fight has evolved over the years and what that might mean in 2017 and beyond. In that spirit, here are what I see as the new “rules of engagement” on ID.

Rule One: Voter ID, by itself, is presumptively valid. In the immediate post-HAVA era, new photo ID laws were seen as a threat and drew litigation challenges accordingly. Over time, however, courts – including the U.S. Supreme Court in the 2008 Crawford case – came to accept voter ID and uphold it against what lawyers call “facial” challenges; i.e., challenges to its mere existence. More specifically, courts are accepting states’ proffered justifications of fraud prevention and are finding that ID laws, by themselves, are not an undue burden on voters. In 2017 and beyond, therefore, any plaintiff challenging a new or existing voter ID law will have to do more than simply allege discrimination and/or limitation of voting rights to prevail.

Rule Two: legislative intent behind voter ID matters. That said, general judicial acceptance of voter ID laws erodes quickly if there is evidence of actual discriminatory intent behind their enactment. In 2016, federal appeals courts blocked election laws in Texas and North Carolina because of evidence that legislators in both states had consulted, and may have relied upon, data suggesting those laws would disproportionately affect protected minorities under the Voting Rights Act. Going forward, any legislature seeking to enact or expand voter ID laws will be closely scrutinized to ensure that similar discriminatory intent is not motivating those laws. Note, however, that plaintiffs challenging such laws may no longer be able to count on support from the U.S. Department of Justice under the new Administration.

Rule Three: whether and how voters without ID can get it is crucial. While facial challenges to voter ID laws are likely to fail, recent experience suggests that an “as-applied” challenge focused on the implementation of these laws has more likelihood of success. State and federal courts have been very clear that voter ID requirements begin to lose their presumption of validity when evidence suggests that voters without ID can’t actually get it. These fights can be intensely detailed; in Wisconsin, courts temporarily halted implementation of ID laws because of deficiencies at the state DMV in training staff to assist voters with obtaining ID, and in Texas the instructions to poll workers about what kind of ID could be required were subjected to direct oversight by the court. In this environment, the voter ID fight isn’t about sweeping legal issues but rather the nitty-gritty of implementation.

What does this mean for voter ID going forward? I think it’s pretty straightforward: legislatures are likely free to enact such laws if they have the votes, but there must be no evidence of discriminatory intent and implementation matters; in other words, it isn’t enough to simply say voters will be allowed to get free IDs – there has to be an actual plan. In this environment, theoretical legal arguments about the constitutionality of ID laws are most powerful during legislative debate but are unlikely to succeed in court. The real fight is over intent and what happens after enactment. Proponents and opponents alike would be well-advised to put less emphasis on legal research and more on data gathering.

The wild card in all of this is the U.S. Supreme Court. If a fully-constituted SCOTUS takes up these intent/implementation cases and rules, as it did in Crawford, that states get the benefit of the doubt on these issues then it’s hard to see how such laws can be successfully challenged.

It’s a lot to keep track of – and I suspect there will lots of opportunities to track voter ID in the upcoming year. Fasten your seat belts and stay tuned …