Uncertainty Surrounds Legality of Voter ID Laws

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October 15, 2014;Washington Post

The U.S. Supreme Court invalidated Arkansas’s requirement that voters present photo ID in order to prove eligibility to vote. However, the Court’s rationale leaves a lot of room for speculation. The concern, according to the Post article, isn’t that the rights of voters are being infringed by having to produce ID. The issue is that the Arkansas state constitution does not require photo ID for an individual to be eligible to vote. The apparent remedies available to Arkansas would seem to be:

  1. Find an alternative method to apply the state’s constitutional eligibility criteria of being at least 18 years and registered to vote (a voter registration card would seem to meet this requirement); or
  2. Amend the Arkansas constitution to include requiring each voter to present proof of identity (such as a photo ID) to allow election workers to verify eligibility.

Further evidence of the narrowness of the Court’s rulings on voter eligibility include its upholding of North Carolina’s voter ID laws while striking down Wisconsin’s laws. MSNBC reports that a new Texas law has been upheld by an appeals court but has been appealed to the US Supreme Court this week. Both sides in these cases point to a previous US Supreme Court decision, Purcell v. Gonzalez, which states in part that a court’s decisions on changing conditions for voting shouldn’t confuse voters right before an election. In other words, courts should not require changes in voting procedures when communicating the changes would tend to confuse people about to head to the polls. Those supporting state laws requiring identification to vote use Purcell to argue that courts should not intervene, especially now. Supporters of voting access without verification argue that a less restrictive approach (not asking for ID) is actually less confusing to voters than educating voters on what ID is needed to substantiate eligibility to vote.

Voting is a state activity, but also protected by federal laws and Supreme Court decisions as well as states’ own regulations. How much deference will the Supreme Court give to states in determining how best to certify voters as eligible to vote? How will it balance the individual voter’s access to the ballot box with the states’ legitimate interest in assuring that only eligible persons cast ballots? Nonprofits advocating for voters’ rights generally advocate for open access, arguing that providing identification has the effect of suppressing voting by minorities and the poor. It is far less common to see advocacy groups working to help voters identify themselves as eligible to vote. Depending on the outcomes of the various cases working their way through the courts, the activity by nonprofits in some states may pivot to ID access as the strategy to achieve ballot access.—Michael Wyland

  • Michael Wyland

    UPDATE 10/20 2014: The US Supreme Court has allowed Texas’s voter ID law to stand for the upcoming 2014 election. Three Justices dissented from the decision that overturned an Appeals Court ruling. The appeals court had ruled to stop the state from requiring voters to present ID at the polls to verify eligibility to vote.