Are Voter ID Opponents Winning the Battle but Losing the War?
In recent months, courts have struck down voter identification laws in Pennsylvania, Wisconsin and Texas, heartening critics who feared the laws would turn away legitimate voters in November. But because the judges declined to reject the laws as unconstitutional, voter ID opponents may be winning battles but losing the broader war.
The recent rulings have done little to alter the legal basis that has allowed comparable laws in Georgia and Indiana to stand for years. In Pennsylvania, for example, the judge ruled that state officials did not have enough time to implement the new voter ID law before Election Day. And a federal court ruled that Texas's specific law would place a disproportionate burden on minority voters, but it left the door open for a different voter ID measure.
For the most part, opponents have been unable to win the crucial argument: That voter ID laws are an unconstitutional infringement on voting rights.
“The long-term trend is for courts to uphold most of these changes and to leave the issues to the political process,” says Rick Hasen, a professor at the University of California, Irvine, and the author of the recent book The Voting Wars. “Most courts are holding that these laws are, in fact, constitutional.”
Recent, but narrow, victories
The Pennsylvania victory last week was significant for voter ID opponents, but it underscored the difficulty in making the case that voter ID laws are unconstitutional.
As Commonwealth Court Judge Robert Simpson wrote in his opinion, “I reject the underlying assertion that the offending activity is the request to produce photo ID.” He went on to rule that it was the state's inability to ensure all voters had IDs that was at issue. “The salient offending conduct is voter disenfranchisement.”
Simpson left unresolved, for now, the constitutionality of the law, but most saw the ruling as a signal it would withstand a challenge once the election is over, when state officials would have more time to implement it. If Simpson reviews the law again and upholds it, most observers believe that based on previous rulings, the state Supreme Court would follow suit.
Even the high-profile victory in federal court over Texas's voter ID law was won on narrow grounds. Because of its history of voter disenfranchisement, Texas's law was subject to federal approval under the section 5 of the Voting Rights Act. State officials, appealing the Justice Department's disapproval, had to prove the new law wouldn't burden minority voters.
They failed that test. “Everything Texas has submitted as affirmative evidence,” the court ruled, “is unpersuasive, invalid, or both.”
But the ruling rejected Texas's voter ID practice, not the broader concept of requiring voter ID. “Nothing in this opinion remotely suggests that section 5 bars all covered jurisdictions from implementing photo ID laws,” the court said.
Now Texas is poised to take its case to the U.S. Supreme Court, which could take up the constitutionality of parts of the Voting Rights Act, section 5 in particular. If the court strikes section 5, it would deprive voter ID opponents of a potent weapon. Such a ruling could open the floodgates for voter ID laws in a number of states subject to Justice Department preapproval, like South Carolina, which was also forced to defend its law in federal court this fall.
In Wisconsin the court did find that state's voter ID law to be unconstitutional under state law. However, even there the future of the voter ID law may be bright, because it is destined for review by the state Supreme Court, thought to be friendly ground for Republicans who backed the measure.
“The long-term trend for opponents of Voter ID is a losing one,” says Hans von Spakovsky, of the Heritage Foundation. “Even when they have won, they ultimately end up losing.”
The path forward
Voter ID opponents dismiss that prediction. They point to ongoing cases that may produce different rulings, and are heartened by what they see as growing skepticism from judges about voter ID laws.
“We're in an era -- that's not over -- of the courts actually working out the role of the courts in the political battle over the right to vote,” says Wendy Weiser of the Brennan Center for Justice at New York University Law School. “We are in the middle of that battle.”
Weiser and others point out that even when the laws are upheld, the courts have altered or mitigated them in some way.
Pennsylvania, for example, created a new, more easily accessible photo ID card because of the litigation. Some states have enacted “softer” voter ID laws than others, while questions over whether certain documents, like student IDs, are acceptable will be settled both in the courthouse and the statehouse.
It's the latter arena – and in the court of public opinion – that could provide the best hope for voter ID opponents. As Hasen, of California, Irvine, put it plainly: “In the long term, the best way to avoid Pennsylvania's voter ID law is to elect a Democratic legislature that will overturn it.”
In this sense, it is possible recent victories and the general rancor over voter ID could work in the favor of the laws' opponents. Where there was once widespread support, voter ID now carries a more partisan hue, with Democrats more likely to oppose it than in the past.
In many states, Democratic lawmakers are also striking back, streamlining voting requirements and implementing same-day registration. Tova Andrea Wang, a senior democracy fellow at Demos, has written in support of an affirmative “Voter Inclusion Principle,” which would strive to expand voting and make it easier rather than more restrictive.
The shift could also have an effect on voter ID ballot initiatives, which have been a favored tactic of supporters when rebuffed by lawmakers or the courts. In Missouri when voter ID was declared unconstitutional in state court, supporters amended the constitution to clear the way for it.
The battle for public opinion is also playing out in Minnesota, where a voter ID constitutional amendment will be on the ballot this November. The GOP-controlled legislature saw its first attempt vetoed by Democratic Governor Mark Dayton in 2011. This year, lawmakers bypassed him to put it directly before voters.
As Election Day nears, there's evidence that increasing partisanship over voter ID has taken its toll. In Minnesota, voter ID laws once enjoyed nearly 80 percent support, University of Minnesota political science professor Larry Jacobs says, but that number has plummeted. Jacobs sees a similar dynamic playing out in other states.
A Public Policy Polling survey released this week showed an 8-point advantage for supporters, down from 24 points in June. And a recent Minneapolis Star Tribune poll pegged support at 52 percent statewide, with 44 percent saying they'd vote against it. The partisan divide was pronounced: Three out of four Democrats oppose it, while nearly 90 percent of Republicans support it.
“The debate on voter ID now is as much a referendum on which party you identify with,” Jacobs says. “Party identification colors everything.”
The divide will continue nationally as the public considers voter ID, Jacobs says. It's becoming an issue in which partisans on each side are falling in line, even as court battles continue. And whereas the legal fight will likely continue apace, that shifting public debate makes the broader future for voter ID harder to foretell.