The Fall of Voter ID Laws: When Rights and Duties Collide

The Fall of Voter ID Laws: When Rights and Duties Collide

Voting is a right that belongs to citizens.

That’s actually an important point. One does not “earn” the privilege of voting in this country. It belongs to adult citizens by virtue of citizenship and adulthood. It can be lost (at least for a period of time) by certain criminal acts. But short of a finding of guilt in a court of law, an adult citizen cannot be deprived of access to the ballot box to express their preferences about the direction of the city, the state and the nation.

The state, for its part, has a duty to structure the election process so that elections are fair. Not to do so is to endanger the underpinnings of our democracy, raising doubt about whether those elected actually were chosen by the people.

Of necessity, this duty means that legislatures have the power to pass laws that may facilitate or inhibit the exercise of the right to vote. Districting is the most obvious of these legislative acts, one about which I wrote earlier this week. There is no question that the contours of individual districts create and deny political opportunities for candidates and parties, increasing or restricting the choices voters face, and thereby affecting the exercise of their right in a meaningful way.

Other legislative acts also do more than set neutral rules of the game. Both parties know this.

Freed by recent federal court decisions to make changes in election law without the laborious and uncertain process of Justice Department pre-clearance hanging over them, a number of legislatures in states with histories of discrimination have moved to impose new requirements for voting. One of the favorite new laws is a tougher form of voter identification.

Voters have had to identify themselves for a very long time. What these laws change is the standard of identification.

In many states, the standard became forms of identification that not all eligible voters possessed. Some critics charged that the lack of such identification was more common among minority citizens than among other citizens. They argued that the new laws effectively discriminated against these citizens, and, finding some citizens who could allege they had been harmed, they went to court.

In a recent string of cases in several states, these critics have prevailed.

There is no question that any requirement placed on the act of voting creates an impediment to the exercise of that right. Most states, over the last couple of decades, actually have reduced a number of these impediments. Many states have “early voting” days when one can go to a select number of sites and cast one’s ballot before the official Election Day. Many states also have changed “absentee ballots” to “vote-by-mail” ballots, inviting essentially any eligible voter to request and receive a ballot he or she then can mail back and have counted.

Vote-by-mail in particular has raised some concerns about vote fraud.  Consider how this might be done: A friendly neighbor or relative could invite neighbors or family members to request mail-in ballots and then offer to fill them in on their behalf, securing the actual voter’s signature and returning the ballot. Or that family member or neighbor could stand over a vulnerable voter while he/she is voting and cajole/direct/demand that he/she vote in a particular way (something prohibited by law in actual polling places in most states).

But how about showing up at the poll claiming to be someone one is not, in order to cast a vote in an election for which one is not eligible to vote, or to cast more than one ballot in an election?

The good news: research reveals that there is very little evidence of in-person vote fraud occurring.

In other words, strict voter ID laws create an impediment to the exercise of the right to vote to target a kind of vote fraud that, for all practical purposes, isn’t really there. Meanwhile, an area where there is documentation of vote fraud remains much less restricted.

The courts are noticing this. And they are finding that strict voter ID laws harm minority citizens more than others. Consequently, in several states these restrictions have been overturned or sent back for refinement to reduce the burden they impose and make that burden one that does not fall disproportionately on minority citizens.

The lesson we might learn from this is a familiar one from civics. When the rights of citizens and the duties of government are in conflict, rights generally will prevail. Only strong evidence of the necessity of imposing additional burdens can defend a restriction on our fundamental right to vote.