Safeguarding Voter Integrity with Voter Identification
With the 2022 midterms rapidly approaching, voter fraud will inevitably resurface as a prime talking point, so Republicans are seeking change in the form of voter identification reform. Is this constitutional? Is it even something Americans want?
American politics have moved into a period of polarization the likes of which are only commensurable to the Civil War or the Civil Rights Movement. Following the 2020 election, many Republican Party figureheads made claims of election fraud. To combat perceived election integrity issues, congressional Republicans have begun taking legislative action to make elections fairer, and have made the implementation and enforcement of national voter ID laws a centerpiece of their legislative platform. Democrats, conversely, have called Republican legislative efforts discriminatory and suppressive.
While there is no explicit federal right to vote, the Supreme Court of the United States has affirmed — in numerous decisions — that the right to vote is embedded in the democratic nature of the country. This is likely where the trouble begins. While the SCOTUS does protect the right to vote, not every person in the country is eligible to vote. For example, non-citizens and citizens under the age of 18 are not permitted to vote. These restrictions make the right to vote different from other rights like the right to speech and religion, which are guaranteed to all U.S. residents regardless of age or special status.
Opponents of voter ID laws argue that obtaining an ID can be burdensome to the voter, particularly voters of color. The ACLU estimates that approximately 11% of Americans do not have a government-issued photo ID, and obtaining one requires identification fees and travel costs. Even so, in many states that have strict voter identification laws, the cost of obtaining an ID is very low or free. Additionally, travel costs that are associated with acquiring an ID would similarly be incurred when going to vote in-person — not to mention that most rural Americans that incur these high travel costs are white, not voters of color. To top it all off, Americans need photo identification every day for errands: filling prescriptions, buying alcohol or tobacco, getting a marriage license, buying a gun, and entering an airport terminal all require photo identification. If IDs are required for something as simple as purchasing a bottle of beer, IDs should unquestionably be required to elect the leaders of the republic. Claiming that low-income or minority voters do not know how to obtain valid identification is the bigotry of soft expectations and has no place in the United States.
Another common point made in opposition to voter identification is that in-person voter fraud is exceedingly rare. While there is ample evidence to support this, why not create measures to proactively prevent the rare instances of voter fraud that do exist. Why should we wait for a large fraud scheme to occur? All safety measures that exist are put in place to lower the probability of danger, and voter ID is no exception.
Currently, there are 35 states that require some form of identification when voting in person. Out of those, 20 require the voter to present a photo ID while the other 15 accept non-photo IDs. These include some of the most liberal states like Rhode Island, Vermont, and Washington, which also happen to have some of the highest voter turnout rates in the 2020 election.
Challenges to voter ID laws have captivated headlines in recent months. whether it be Congress bickering about legislation or lawsuits about local laws. SCOTUS, in addition to affirming the right to vote, has also affirmed that voter ID laws are constitutional and legal. In the case of Crawford v. Marion County Election Board (2008) regarding an Indiana voter ID law, Justice John Paul Stevens — joined by Justices Roberts and Kennedy — wrote the plurality opinion stating that the burdens of obtaining a photographic identification put forth by the plaintiff were no greater than the burdens of voting itself, and that should someone not have one, the allowance of a provisional ballot to be cast along with an affidavit affirming one’s inability to obtain a photo ID mitigates all burdens associated with providing photo ID. Justices Scalia, Thomas, and Alito concurred with the judgment but noted that election laws shall be left up to the states, per the Tenth Amendment and the lack of federal election law.
Another key case that impeded the ability to challenge voter ID laws was Shelby County v. Holder (2013). This decision by the SCOTUS washed away Section 5 of the Voting Rights Act of 1965, requiring states or counties with a history of discrimination to have their voting laws precleared by the attorney general. The decision invited Congress to rewrite Section 5, but Congress has yet to do so. Challenges associated with the VRA Section 5 used to put the burden of proof on the legislators, asking them to prove a law was not discriminatory or abridging. Section 2 of the VRA puts the burden of proof on the plaintiffs, requiring them to prove that a law is discriminatory or abridges voting rights. This makes it much easier for voter identification laws to pass and remain, thereby safeguarding election integrity.
The Shelby County v. Holder case paved the way for Texas NAACP v. Steen (2018) to return the decision it eventually did. Texas passed a law, S.B.14, that required photo ID for voters while shrinking the list of acceptable IDs down to seven, allowing no provision for those who could not obtain one. In 2014, S.B.14 was enacted after the 2013 SCOTUS ruling, which was subsequently challenged. After going through many legal challenges in many courts, the Fifth Circuit Court of Appeals issued the decision on S.B. 5, a law proposed in 2017 as a replacement to the previous law with the added remedy of allowing voters to cast a provisional ballot if a photo ID could not be obtained or presented, falling in line with the Indiana voter ID case from 2008.
The courts have confirmed many times that photo identification regulations for voters do not violate the supreme law of the land, so long as remedial measures are in place. Although there have been many challenges of laws requiring IDs to vote, national public opinion supports increased voting ID requirements. In June 2021, Monmouth University Polling Institute found that 80% of Americans support voter ID requirements in order to vote, with only 18% opposing. Additionally, 69% believe that voter fraud is a problem in the United States. Perhaps enacting voter identification laws can help restore citizens’ faith in the security and integrity of their country’s electoral system.
The best solution, gathered from relevant case law, is to enact voter ID laws with the remedies for those who truly cannot obtain IDs, such as provisional ballots being accompanied by affidavits of valid reasons for lack of ID. States can make forms of identification more accessible by making at least one of them affordable (low cost or free) and accessible (able to obtain with few, at-hand documents). This has the potential to improve voter confidence in elections while also easing other everyday chores like filling prescriptions or using air travel, errands that already require ID. This eliminates the racially or economically based arguments for opposers of voter identification by eradicating the barriers for those groups.
Voter ID laws are not about voter suppression. It is about restoring and maintaining the confidence and integrity of elections. With all things considered, it is difficult to seriously oppose voter identification laws given their constitutionality, legality, and popularity.
Connor Wayne Kraska is a Junior at Brown University studying Economics and International and Public Affairs. He currently serves as a Staff Writer for the Brown Undergraduate Law Review and can be contacted at connor_kraska@brown.edu.