THE VOTER-IDENTIFICATION LAW VIOLATES THE VOTING RIGHTS ACT PROHIBITIONS ON RACIAL DISCRIMINATION IN VOTING

Congress enacted the Voting Rights Act of 1965 (42 U.S.C. 1973(a)) under its authority to enforce the Fifteenth Amendment's proscription against voting discrimination (Lopez v. Monterrey County 1999, 269). The act's purpose is “to rid the country of racial discrimination in voting” (Beer v. United States 1976, 140). It aims at both obvious and subtle state laws that deny citizens the right to vote because of their race. Further, the act was “intended to reach any state enactment which alter[s] the election law of a covered State in even a minor way” (Allen 1969, 566).

Section 2 of the act states that “no voting qualification or prerequisite to voting … shall be imposed … which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” or membership in certain minority-language groups (42 U.S.C. 1973(a)). In essence, the section challenges “electoral law[s], practice[s], or structure[s]” that “interact[] with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives” (Thornburg v. Gingles 1986, 47). Proof of intent to discriminate is not required.

Under the act, the issue is whether, as a result of a law, citizens “do not have an equal opportunity to participate in the political processes and to elect candidates of their choice” (Thornburg v. Gingles 1968, 44; Johnson v. De Grandy 1994, 1014). A section 2 violation occurs if the “totality of the circumstances” shows the challenged law results in denying a racial or language minority an equal opportunity to participate in the political process (42 U.S.C. 1973(b); Thornburg v. Gingles 1968, 46).

The complexity of obtaining “breeder” documents and government identification constitutes a modern-day equivalent of an education or literacy test for voting; historically, these have been the most “popular” devices for disenfranchisement (Keyssar Reference Keyssar2000, 142, 266). A “strict scrutiny” review requiring a compelling state interest should apply because the groups whose rights to vote are most likely to be abridged by the voter-identification law tend to be members of insular minority groups (United States v. Carolene Products. Co. 1938, 152).

REQUIRING A PHOTO IDENTIFICATION TO VOTE DENIES OR ABRIDGES GROUPS' EQUAL OPPORTUNITY TO VOTE

As the appellate dissent in Crawford noted, the voter-identification law “is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic” (Crawford 2007a, 954). Moreover, these “folks” are “mostly … people who are poor, elderly, minorities, disabled, or some combination thereof” (955). The Indiana law would result in the “denial or abridgement” of the right to vote of many of these citizens.

The pragmatic concerns, like difficulty in traveling to obtain identification, lack of necessary documentation, and infrequency of other occasions for identification, are issues for minorities in particular that flow directly from the voter-identification law. They deny or abridge the equal opportunity of voters to participate in the political process. Indiana's statute is exactly the kind of “qualification or prerequisite to voting … which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” that the Voting Rights Act prohibits. It has a disparate impact on minority voters. As “history demonstrates” to Justice Thomas in his dissent about other “electoral reforms,” the result is not to purify the public process but “to protect incumbents” (Colorado Republican Fed. Campaign Comm. V. FEC 1996, 644). The original recommendation of Justice Department staff that a similar Georgia voter-ID law fail pre-clearance under the Voting Rights Act was overruled by higher officials in the department (Eggen Reference Eggen2005).

THE APPELLATE COURT EXAGGERATES HOW COMMON PHOTO-ID REQUIREMENTS ARE AND UNDERSTATES THEIR DETRIMENTAL IMPACT

Writing for the appellate majority, Judge Richard Posner incorrectly assumes that photo-identification requirements are so common in today's society that without photo IDs it is impossible to complete routine tasks (Crawford 2007a, 951). Indeed, this justification misstates the actual extent to which government-issued photo identifications are required today. It thereby underestimates the impact of such an ID requirement on voters' abilities and motivation to vote.

The appellate court's suggestion that it is impossible to enter a federal courthouse without a government-issued photo identification is inaccurate. The Dirksen federal court house in Chicago, for example, where the Seventh Circuit sits, reveals that citizens who do not possess a driver's license or passport can nevertheless enter the courthouse if they have some other form of non-government-issued photo identification, such as a work or school identification. The Moakley federal courthouse in Boston similarly reveals that, while the preference is for any kind of photo identification, a person can gain access to the courthouse using non-photographic identification such as credit cards or other similar items. In fact, no identification is required to enter the Supreme Court of the United States.

Because of the First Amendment right to petition for the redress of grievances and the privilege and immunity to travel to the “seat of government” (Slaughterhouse Cases 1873; Corfield v. Coryell 1823), requiring an ID to get into a courthouse would be especially suspect. As at the Supreme Court, the electronic search of possessions and people addresses physical security concerns that IDs do not provide.

Judge Posner also mistakenly claimed that it is impossible to fly without government-issued photo identification. Contrary to this assertion, possession of a government-issued photo identification is not an absolute requirement in order to board a commercial airplane in this country. In Gilmore v. Gonzales (2006), a citizen challenged the constitutionality of the airlines' policy requiring photo identification in order to fly (1129–30). The court noted that the “Security Directive” that was being challenged “require[s] airline passengers to present identification or be a ‘selectee’” who receive additional screening (1133). In short, it is possible to fly without photo identification (see also Foreman et al. Reference Foreman, Greenbaum, Kengle, Dellinger, Srinivasan and Borden2007, 5). Moreover, recent U.S. Transportation Security Agency changes still permit flying without government identification (http://www.tsa.gov) for “selectees” who “cooperate” in verifying their identity in other ways under a restricted right to travel.

As the Crawford plaintiffs and amici note, as a matter of privacy and unburdened exercise of fundamental rights, many citizens prefer not to provide ID, or lack IDs. Requirements for voter identifications should not be used as levers toward developing a national identification card or “Real ID” system (Groth et al. Reference Groth2007, 4, 12–20; Sobel Reference Sobel2002, 329). Having a photo identification is not nearly as vital to maneuverability and access in today's society as the appeals court claimed. The courts failed to appreciate the significance and discriminatory effect, particularly for those identifiable groups most acutely impacted by voter-ID rules, of the requirement that all voters present government-issued photo identification. Instead, the court improperly concluded that such a requirement is not a constitutionally cognizable infringement upon the right to vote.

THE CONSTITUTIONAL REMEDY FOR ABRIDGEMENT OF THE RIGHT TO VOTE IS A REDUCTION IN A STATE'S CONGRESSIONAL REPRESENTATION

Well known is the Fifteenth Amendment's promise that the “right of citizens of the United States to vote shall not be denied or abridged … on account of race, color, or previous condition of servitude.” Yet, the Fourteenth Amendment spells out an earlier constitutional remedy for the abridgement of the right to vote. This little-known passage in section 2 of the amendment says that “when the right to vote” in an election is “denied” or “in any way abridged,” a state's congressional “representation … shall be reduced” proportionally (see, e.g., Groth et al. Reference Groth2007, 2; also Amar Reference Amar2005, 394; Karlan Reference Karlan and Loury2008, 46–47).

Identifying the abridgement of the right to vote does not require finding complete denial of voting rights, but rather evidence of a burden that discourages the exercising of the right. This occurs when a law makes it less likely that an individual or member of a group will try to or succeed in exercising the elective franchise. When the right of citizens, including disparately impacted minority groups, is widely abridged, the remedy in the Fourteenth Amendment for Indiana's voter-ID law is the reduction in the size of the state's congressional delegation. This reduction, according to the Constitution, is in proportion to the percentage of its population whose right to vote is abridged or denied, in this case, by the voter-identification law.

The abridgement of the right to vote could consist in being asked for identification without reasonable suspicion of committing a crime, such as voter fraud, if the lack of ID could prevent voting. More pointedly, the abridgement could consist in a state's passing a voter-ID law when there is a significant proportion of the citizenry that does not have governmental identification.

The first group would include, for instance, virtually all valid in-person voters in Indiana asked for a government ID without reasonable suspicion (see Smith and Sobel Reference Smith and Sobel2009). The second group would include anyone who did not have governmental identification with a photograph and current expiration date. According to Barreto, Nuño, and Sanchez the group without government ID constitutes about 17% of white Indiana residents and about 28% of black voters (Reference Barreto, Nuño and Sanchez2009, 17) (roughly 18% overall). Hence, approximately one-sixth of Indiana voters may have their right to vote abridged by a voter-ID law, and Indiana would lose one-sixth of its representation in Congress.

Additionally, evidence that minority groups, particularly blacks and Hispanics, are less likely to have required identification and are more likely to be burdened in its acquisition and employment could also constitute evidence of abridgement to trigger the remedy (see Drew Reference Drew2007; Barreto, Nuño, and Sanchez Reference Barreto, Nuño and Sanchez2009). Not every member of the group needs to be prevented or discouraged as long as there are objective reasons to show that a substantial proportion of members within the class are more likely to be discouraged from voting by the photo-ID requirement.Footnote ¹

Following the Fourteenth Amendment's prescription of proportional reduction of representation for voter abridgements, Indiana would lose one-sixth, or one, of its nine seats in the House. Hence, it would also lose one of 11 electoral votes.

Regardless of the exact numbers, the consequences of the Fourteenth and Fifteenth Amendment proscriptions are that governmental actions that “in any way” abridges the right to vote, as the voter-identification law does, must fail constitutional scrutiny. Whether Indiana should lose representation or have its voter-ID law stricken from the books, both underscore the unconstitutionality of voter-ID laws because they substantially abridge the franchise, particularly among minorities.