Richard L. Hasen*
Headlines about voter identification laws often place court rulings in a simple win or loss frame. For example, the New York Times headline describing the result in Crawford v. Marion County Election Board,1 a 2008 case involving the constitutionality of Indiana’s strict voter identification law, read: In a 6-3 Vote, Justices Uphold a Voter ID Law.2 Similarly, in reporting on the 2015 decision of the United States Court of Appeals for the Fifth Circuit involving Texas’ voter identification law, the Associated Press article was headlined Federal Court Strikes Down Tough Texas Voter ID Law.3
In fact, the results in both cases were more nuanced. As reporter Linda Greenhouse explained in that New York Times article,4 the Supreme Court decision in Crawford was fractured. Although a majority of the Court rejected a full facial challenge to Indiana’s law on equal protection grounds, a plurality of the Court, as well as the dissenters, left open the possibility that Indiana’s law could be unconstitutional “as applied” to certain voters who faced special burdens in getting a voter identification law.5 Further, although the Fifth Circuit did hold in Veasey v. Abbott6 that Texas’s voter identification law violated Section 2 of the Voting Rights Act,7 the appeals court determined that the appropriate remedy would not be a wholesale abandonment of the law; instead it directed the lower federal district court to allow Texas to use its law in most instances, but to craft a remedy which would allow those facing special burdens additional ways to prove identity and cast a ballot.8 The Fifth Circuit, after rehearing the case en banc, ordered a similar remedy,9 and the trial court, with the cooperation of the parties, ordered an affidavit alternative in time for the November 2016 election.10 The parties then fought about whether Texas was properly implementing the alternative.11
In theory, softening of voter identification laws through litigation is a positive development aimed at avoiding disenfranchisement of both voters who face special burdens obtaining an acceptable government-issued identification necessary to vote and of those voters who face confusion or administrative error. In practice, however, softening may do less to alleviate the actual burdens of voter identification laws than to make judges feel better about their Solomonic rulings. In fact, softening devices still leave an uncertain number of voters disenfranchised. These burdens might be justified if there were evidence that state voter identification laws solve a serious problem, but there is no such evidence.
This brief Essay first describes the theoretical softening which emerged in some voter identification litigation. It then explains that, at least to this point, such softening offers less than meets the eye in helping voters facing difficulties voting in states with strict voter identification requirements. It concludes that courts should strike down strict voter identification laws, because the laws deprive at least some voters of the ability to cast a valid vote for no good reason, and the softening devices do not yet appear to do enough.
I. Softening in Theory
The Indiana and Texas litigation show how litigation, at least in theory, can lead to softening of the harshest aspects of state voter identification laws.12
Indiana is important because it was one of the first states with Republican legislative and gubernatorial control13 to adopt strict voter identification requirements following the disputed 2000 election and the rise of the voting wars.14 The ACLU and other organizations brought suit in federal court against Indiana’s law, arguing that the law violated the Equal Protection Clause of the Fourteenth Amendment. The case was a facial challenge—that is, a challenge to the law as applied to everyone. This is in contrast to an as-applied challenge, which argues that the law is unconstitutional as applied to a person or class of people.
The case proceeded without much evidence on either side. The state could point to no evidence that impersonation fraud (where one person goes to the polls claiming to be someone else) was a problem. Indeed, the state conceded there were no cases of such impersonation fraud in Indiana. But the trial court found plaintiffs’ lawyers could not produce voters who (1) lacked identification; (2) would have a difficult time getting identification; and (3) wanted to vote. Plaintiffs claimed they did not need to produce such evidence because they were bringing a facial challenge.15
A federal district court rejected plaintiffs’ challenge citing a lack of evidence on plaintiffs’ side.16 The United States Court of Appeals for the Seventh Circuit affirmed in a divided opinion.17 When the case made it to the Supreme Court, the Court divided 3-3-3. Justice Stevens, writing for himself, Chief Justice Roberts and Justice Kennedy, applying an intermediate standard of scrutiny,18 rejected the facial challenge to the law but left open the possibility of new plaintiffs facing significant burdens from the identification law (such as those who could not afford the underlying documents needed to get a free voter identification card) to bring an as-applied challenge to the law.19 The plurality held that the burden most voters faced was minor and the law was justified by important enough state interests in preventing voter fraud and instilling state confidence. “For most voters who need them, the inconvenience of making a trip to the [Bureau of Motor Vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.”20
Justice Scalia, writing for himself, Justice Alito, and Justice Thomas, took a different view. Like the plurality, he believed the law imposed little burden on most voters. On this basis, however, Justice Scalia would have upheld the law against a rational basis review, not the intermediate scrutiny used by the plurality.21 Unlike the plurality, the Scalia opinion seems to leave no opening for as-applied challenges for voters facing special burdens in obtaining the right form of identification.
The three dissenting Justices—Justices Breyer, Ginsburg, and Souter—agreed with the Justice Stevens plurality opinion that a higher level of scrutiny applied. The dissenters believed that the law imposed greater burdens on many voters, and that the state failed to demonstrate that its interests were strong enough to defeat the plaintiffs. The dissenters would have struck down the law facially, for all voters in Indiana.22
By the time Texas came to adopt a voter identification law in 2011,23 it adopted a much stricter one than Indiana, further limiting the forms of acceptable government-issued identification, and not including an exception or exemption, such as the one built into the Indiana law, for those who are indigent.24 The effort to pass the Texas law was a fierce partisan battle, featuring a Democratic state senator being wheeled on a gurney following liver surgery in the state capitol rotunda to block the law’s passage. Eventually Texas Republicans changed the Senate rules to allow the law to pass despite united Democratic opposition.25
At the time Texas passed its law, it was still subject to the preclearance requirements of the Voting Rights Act.26 Under Section 5 of the Act, covered jurisdictions with a history of racial discrimination in voting such as Texas had to obtain approval from the United States Department of Justice or a three-judge federal court in Washington D.C. Covered jurisdictions had the burden of demonstrating that the law did not have the purpose and would not have the effect of making protected minority voters worse off in exercising their voting rights.27
The Department of Justice blocked Texas’s law, known as “SB 14,” finding that the state did not meet its burden of proof. Texas appealed to a three-judge federal district court in Washington D.C.28 After trial, the three-judge court blocked Texas’s law, finding the evidence uncertain, but siding against Texas because of the burden of proof.29 Texas appealed to the Supreme Court, which later remanded the case for dismissal after holding in an unrelated case out of Alabama, Shelby County v. Holder,30 that the preclearance provisions of the law were unconstitutional.31 Shelby County held that the formula used to decide which jurisdictions were covered was constitutionally outdated and therefore exceeded congressional power by infringing on the “equal sovereignty” of the states.32 Within hours of the Shelby County decision, Texas’s then-attorney general (and now governor) Greg Abbott announced the state’s intention to enforce its voter identification law immediately.33
A diverse group of voting rights plaintiffs then challenged the law in federal court, raising a variety of theories, arguing the law violated constitutional equal protection rights, the twenty-fourth amendment’s prohibition of poll taxes, and Section 2 of the Voting Rights Act. In a detailed 142-page opinion, the federal district court held Texas’s law illegal. The Court found it was passed with racially discriminatory intent in violation of the Fourteenth and Fifteenth Amendments, unconstitutionally burdened the right to vote, amounted to an unconstitutional poll tax, and violated Section 2 of the Voting Rights Act.34
Texas appealed to the Fifth Circuit. The Fifth Circuit held that the district court used an incorrect standard to conclude that Texas had a racially discriminatory purpose in passing the voter identification law.35 After a lengthy analysis, the court concluded that Texas did violate Section 2 of the Voting Rights Act on grounds that, looking at the totality of the circumstances, the law made it harder for minority voters compared to white voters to participate in the political process and to elect representatives of their choice.36 The Court declined to reach constitutional arguments made by the plaintiffs37 other than the poll tax argument under the twenty-fourth amendment. The court rejected the poll tax argument on two grounds. First, the court held that the indirect costs of obtaining identification do not provide grounds for a facial poll tax attack on a voter identification law.38 Further, the court held that a law Texas enacted after litigation began, which allowed voters to obtain from Texas government offices an “Election Identification Certificate” (or EIC) at no cost, meant the Texas identification requirement was not a poll tax: “Texas law no longer imposes any direct fee for any of the documentation required to obtain a qualifying voter ID.”39 Texas voters seeking the EIC, however, may still face fees in obtaining the underlying documentation necessary to qualify for an EIC by proving United States citizenship and identity.40 The Fifth Circuit concluded, however, that this indirect burden did not constitute a poll tax.
Despite holding that Texas’s voter identification law violated Section 2 of the Voting Rights Act, the Fifth Circuit did not enjoin enforcement of the law outright. Instead, the court remanded the case to the trial court to impose a much more limited remedy, consistent with the idea that a court fashioning a Section 2 remedy should respect the legislature’s policy objectives when possible:41
Accordingly, if on remand the district court finds that SB 14 has only violated Section 2 through its discriminatory effects, it should refer to the policies underlying SB 14 in fashioning a remedy. Clearly, the Legislature wished to reduce the risk of in-person voter fraud by strengthening the forms of identification presented for voting. Simply reverting to the system in place before SB 14’s passage would not fully respect these policy choices—it would allow voters to cast ballots after presenting less secure forms of identification like utility bills, bank statements, or paychecks. One possibility would be to reinstate voter registration cards as documents that qualify as acceptable identification under the Texas Election Code. The court could also decree that, upon execution of an affidavit that a person does not have an acceptable form of photo identification, that person must be allowed to vote with their voter registration card. Such a remedy would respect the Legislature’s choice to do away with more problematic forms of identification, while also eliminating SB 14’s invalid applications. However, we recognize that the district court must assess this potential solution in light of other solutions posited by the parties, including other forms of photo identification. We urge the parties to work cooperatively with the district court to provide a prompt resolution of this matter to avoid election eve uncertainties and emergencies.42
After a lengthy delay and prodding from the United States Supreme Court,43 the entire Fifth Circuit sitting en banc issued a ruling agreeing that Texas’s law violated the Voting Rights Act because of its racially discriminatory effect, and it remanded to the trial court to come up with an interim remedy following the narrow guidelines of the panel decision.44 The trial court on remand implemented an affidavit alternative in time for the November 2016 election.45 Further proceedings will occur after the election.
The Indiana and Texas cases show that litigation has the potential to lead to the softening of voter identification laws. In the Indiana case, the Supreme Court plurality suggested “as applied” litigation to get exemptions and exceptions from identification requirements for groups of voters facing special burdens. In Texas, the ongoing litigation led Texas to revise its laws to allow voters to obtain a free identification card (although there was no free access to the documentation needed to get an identification), and the Fifth Circuit followed up with an order for the district court to craft some exemptions and exceptions from the law to make it less onerous.
This softening of the potentially harsh effects of voter identification laws through litigation is not unique to Indiana or Texas. In South Carolina, election administrators enacted administrative rules to allow those voters with a “reasonable impediment” to obtaining the right voter identification to be allowed to vote without showing the identification. South Carolina adopted these rules while a three-judge court in Washington D.C. was considering whether to give federal approval under the now moribund preclearance rules of Section 5 of the Voting Rights Act. There is little doubt South Carolina adopted this softening solely to obtain preclearance from the court. After the South Carolina softening, the court approved South Carolina’s voter identification law.46
North Carolina followed suit a few years later. Thanks to the Supreme Court’s 2013 decision in Shelby County,47 North Carolina did not need to submit its new voter identification law or other voting changes for Section 5 preclearance. But after voting rights plaintiffs challenged North Carolina’s laws in court under the Constitution and the Voting Rights Act’s Section 2, North Carolina passed another statute implementing a “reasonable impediment” exemption similar to South Carolina’s. The change came on the eve of the federal court trial, and the court put off the part of the trial related to voter identification for a later date.48 Although the district court wrote that the North Carolina “reasonable impediment” exemption is “identical” to South Carolina’s requirement, it is not. The North Carolina statute lists specific reasons a voter may claim an impediment, along with a catch-all “other” provision.49
The trial court in the North Carolina case held that North Carolina’s voter identification law, with its reasonable impediment exemption, did not violate the Voting Rights Act or the Constitution.50 The Fourth Circuit reversed the trial court, holding that North Carolina passed its law for a racially discriminatory purpose,51 a holding the state of North Carolina has promised to appeal to the United States Supreme Court.52 Rather than allow the law to function with the reasonable impediment exemption, the Fourth Circuit rejected the entire law.53
In Wisconsin, voting rights plaintiffs challenged Wisconsin’s tough voter identification law in both state and federal court. A federal court held the law violated Section 2 of the Voting Rights Act and the United States Constitution’s Equal Protection Clause.54 Meanwhile, the Wisconsin Supreme Court in a state challenge to the voter identification requirements construed its laws and related regulations to require the Wisconsin Department of Motor Vehicles to exercise discretion in providing documentation without a fee to voters when the voters lacked the documentation necessary to secure a state-issued voter identification card.55 After this construction of Wisconsin law by the state’s highest court, the United States Court of Appeals for the Seventh Circuit rejected both the constitutional and Voting Rights Act challenges to the law.56
However, in further proceedings in the case, the Seventh Circuit held its initial order did not bar plaintiffs’ attempt to bring an as-applied claim against the Wisconsin law based on how the law was implemented in practice, and the court remanded the case to the district court to consider such a challenge.57 It explained: “The right to vote is personal and is not defeated by the fact that 99% of other people can secure the necessary credentials easily. Plaintiffs now accept the propriety of requiring photo ID from persons who already have or can get it with reasonable effort, while endeavoring to protect the voting rights of those who encounter high hurdles. This is compatible with our opinion and mandate, just as it is compatible with Crawford.”58
On remand the trial court issued an order allowing Wisconsin voters to sign a reasonable impediment affidavit to be allowed to vote.59 The state of Wisconsin appealed and a Seventh Circuit panel put the affidavit requirement on hold, ruling that it was likely too broad a remedy for those facing special burdens to vote.60 Separately, another federal district court required the state of Wisconsin to take additional steps to help those voters facing special burdens obtain identification to be used for voting.61 Both rulings are currently on further appeal.62
II. Softening in Practice
For those who believe voter identification laws impose unnecessary hurdles to voting, softening through litigation is certainly preferable to no softening. For example, the South Carolina “reasonable impediment” exemption makes the law far more palatable than the law without it. And the Wisconsin as-applied litigation may serve to allow more opportunity for unfairly disenfranchised voters to vote.
But it is easy to exaggerate the extent to which these softening devices actually alleviate the problems caused by voter identification laws. By “problems,” I mean not only the disenfranchisement of otherwise eligible voters who lack and cannot get the right government-issued identification to vote, but also administrative issues, pollworker errors, and confusion or forgetfulness by voters which leads to practical disenfranchisement. Further, voter identification laws, even softened ones, impose burdens on voters, voting rights groups, states, state agencies, and local governments.
Beginning with Crawford, softening has been underwhelming. Justice Stevens’ opening to channel voter identification challenges into as-applied challenges has been completely unsuccessful. Indeed, it is hard to find successful reported as-applied challenge in the federal or state courts. William Groth, the lawyer who brought Crawford, reported a single successful as-applied challenge for a single voter which took two years and considerable effort to bring.63 There have been some unsuccessful challenges, such as Stewart v. Marion County, in which a federal district court rejected an as-applied challenge to Indiana’s voter identification law, finding the burdens on the plaintiff no more than the burdens that other voters faced which the Supreme Court found to be acceptable in Crawford.64
The general failure of as-applied challenges is no surprise. As early as 2009, Julien Kern wrote of the administrative and logistical difficulties of gathering the most vulnerable potential voters for class action purposes.65 As Kern put it:
After Crawford, even the most stringent voter identification laws must be challenged using the blunt tool of an as-applied challenge. Practical limitations on resources and remedies in an individual as-applied challenge are strong deterrents to effective representation. Furthermore, it is unclear whether a plaintiff class would be able to be certified in an as-applied class action against a voter identification law. Some precedent indicates that a putative voter identification class may fail on commonality grounds due to the necessity of a case-by-case examination of the burdens imposed by the voter identification law.
Thus, the reference in Crawford to a future as-applied solution is illusory. The invocation of an as-applied challenge as an adequate safeguard to protecting the right to vote in unconstitutional applications is an attractive idea on its face. But upon closer examination, it is a hollow promise, a legal chimera.66
Nor have other softening devices proven to be greatly successful. Consider the “Election Identification Certificate,” which Texas created apparently to blunt the argument that its identification law constituted a poll tax. The certificate is available without a fee to those voters who do not have a state identity card. The voter still must pay whatever fees are necessary for documentation to prove citizenship and identity to obtain the EIC card.
According to an investigation by the Texas Observer, the Texas Department of Public Safety “has issued only 653 EICs across the state—only one ID for every 930 Texans who lack voter ID. In a survey of forty-six counties that issue their own EICs, the Observer found that many elections administrators had little to no familiarity with the ID, and some expressed surprise that anyone would inquire about it.”67
Next consider the “reasonable impediment” exemptions involved in the North Carolina and South Carolina voting laws. The federal district court considering North Carolina’s law relied heavily on the “reasonable impediment” rules in holding the law did not violate Section 2 of the Voting Rights Act: “In sum, this court reaches the same conclusion as the court in South Carolina: North Carolina’s voter ID law with the reasonable impediment exception does not impose ‘a material burden’ on the right to vote of any group ‘for purposes of the Voting Rights Act.’”68
While confusion reigned in North Carolina over how the state would have actually implemented its voter identification program had the Fourth Circuit not halted it,69 in South Carolina elected officials do little to publicize the reasonable impediment exemption from the law. A report by Think Progress noted that South Carolina’s voter information program barely mentions the reasonable impediment exemption in fine print in voter information, and the governor of the state has incorrectly stated that voters must have photographic identification in order to be allowed to vote.70 Some voters are confused, with confusion beginning with the fact that some voters do not know what the word “impediment” means and therefore have difficult time taking advantage of the exception.71
In response to the Think Progress article, the South Carolina Election Commission wrote on Twitter incorrect information, stating that if a voter does not bring the right photographic identification to the polls, “you’ll have to show it later for your vote to count.”72 This is not true for voters who take advantage of the reasonable impediment exemption. The state then corrected this misinformation in a follow-up tweet.73
This raises a related problem: election administrator and poll worker error. A poll worker in South Carolina expressed concern that given the poor information campaign of South Carolina officials, many poll workers will not know that voters may cast ballots without a photographic identification upon signing an affidavit of a reasonable impediment to voting.74
Consider this case from Texas, where state law requires poll workers to accept identification from voters whose names on the rolls are “substantially similar”75 to those on a photographic identification card:
A strict interpretation of the law ended up disenfranchising Taylor Thompson, a student at Texas State University in San Marcos. Thompson’s name on the voter registration card she received in the mail was incorrectly spelled “Tayllor Megan Rose Thompson.” Because it didn’t match her name on her photo ID, which is “Taylor Megon-Rose Thompson,” she was barred from voting. Nor was she offered a provisional ballot, which would have allowed her to return in the next six days to straighten out the problem and have her vote counted.76
The law required Texas election officials to offer Ms. Thompson that provisional ballot;77 it was not incumbent upon her to ask for it.
Finally, this problem with administrative discretion appears no better in Wisconsin, where the state Supreme Court engaged in creative statutory interpretation to require its Department of Motor Vehicles to exercise discretion to assist voters in obtaining full documentation required to obtain a state-issued voter-identification cards.
The trial court in one of the two cases raising problems with the Wisconsin process began its opinion with this vignette:
Mrs. Smith has lived in Milwaukee since 2003. She was born at home, in Missouri, in 1916. In her long life she has survived two husbands, and she has left many of the typical traces of her life in public records. But, like many older African Americans born in the South, she does not have a birth certificate or other documents that would definitively prove her date and place of birth. After Wisconsin’s voter ID law took effect, she needed a photo ID to vote. So she entered the ID Petition Process (IDPP) at the Wisconsin Department of Motor Vehicles (DMV) to get a Wisconsin ID. DMV employees were able to find Mrs. Smith’s record in the 1930 census, but despite their sustained efforts, they could not link Mrs. Smith to a Missouri birth record, so they did not issue her a Wisconsin ID. She is unquestionably a qualified Wisconsin elector, and yet she could not vote in 2016. Because she was born in the South, barely 50 years after slavery, her story is particularly compelling. But it is not unique: Mrs. Smith is one of about 100 qualified electors who tried to but could not obtain a Wisconsin ID for the April 2016 primary.78
As to the scope of the problem in Wisconsin, the trial court found a few hundred voters who had trouble navigating the process to obtain an identification from the Wisconsin DMV.79 The judge described the type of voters facing problems as follows:
The petitioners in suspended or denied status were the ones who faced serious roadblocks in the IDPP: their birth records did not exist, or those records did not perfectly match their names or other aspects of their identities, such as Social Security records. The problems arose because the DMV evaluated IDPP petitions for voting IDs by using the same identification standards that it applied to applications for Wisconsin driver licenses and standard IDs. To acquire any one of these products from the DMV, a person must prove both their identity and their legal presence in the United States. Thus, the DMV refused to issue IDs to IDPP petitioners until CAFU could confirm their identities with a match to a valid birth record, or to some equivalently secure alternative. Some petitioners simply could not meet the DMV’s standard of proof, and so they could not obtain free IDs.
The lack of a valid birth record correlated strikingly, yet predictably, with minority status. The evidence at trial demonstrated that Puerto Rico, Cook County, Illinois, and states with a history of de jure segregation have systematic deficiencies in their vital records systems. Voters born in those places were commonly unable to confirm their identities under the DMV’s standards. For example, many African American residents in Wisconsin were born in Cook County or in southern states. And many of the state’s Latino residents were born in Puerto Rico. Id. As of April 2016, more than half of the petitioners who had entered the IDPP were born in Illinois, Mississippi, or a southern state that had a history of de jure segregation.80
The problems each disenfranchised voter faces is fact specific, making class action lawsuits to solve identification problems difficult. Administrative discretion, lack of understanding by voters, and lack of publicity leave many administrative softening devices underutilized and unfairly implemented.
In sum, softening in practice so far has not fixed problems for voters facing special burdens to produce identification to vote, and it will take considerable effort to make these devices viable means for avoiding disenfranchisement.81
It will take detailed empirical study of how jurisdictions handle softening devices before we can have confidence that particular means of avoiding disenfranchisement are successful. At this point, the evidence does not inspire confidence.
III. Instead of Softening, A New Balance
The last Part demonstrated that softening of voter identification laws in theory does not necessarily lead to softening of voter identification laws in practice. Difficulties of proof, administrative problems, and poll worker error all make voter identification softening devices less than ideal to ameliorate the harshness of voter identification laws for those facing difficulty producing the right document to vote.
Further, these laws impose other social costs. They suck up resources of voting rights groups and others, sometimes quite significant, to fight for individual rights to vote.82 They are also expensive for states and local governments to administer. A proposed Missouri voter identification law has been estimated to cost $17 million in its first three years.83 And each fight threatens to disenfranchise a voter who cannot put up with the administrative hassle.
As historian Allan Lichtman noted in a recent court filing in the Wisconsin case, the Wisconsin DMV’s improper decisions to deny voter identification cards to nineteen applicants who sought to obtain the cards worked an unprecedented disenfranchisement:
Although 19 outright denials may seem like a small number, as far as I know it represents the first time since the era of the literacy test that state officials have told eligible voters that they cannot exercise their fundamental right to vote – not in the next election, probably not ever — … I am unaware in the post-voting rights era of other examples of state officials telling eligible citizens of their state that they cannot vote because they fail to meet an external criteri[on] established by the state — unrelated to age, residency or other objective qualification for voting.84
It is hard to quantify just how many people are deterred from voting because of strict voter identification laws, as well as how many people who would otherwise deterred would have been able to take advantage of one of these softening devices. (This does not even count voters who cannot vote because they have been deterred by registration requirements, such as those in Kansas, requiring documentary proof of U.S. citizenship before voting.85) But a focus on aggregate numbers puts the emphasis in the wrong place, away from individual voters’ rights and dignity and on naked partisan effects.
This debate over numbers parallels the focus of some opponents of voter identification laws on whether voter identification laws will depress turnout, and if so, whether the turnout can skew the election in favor of Republicans and away from Democrats.86 Such laws certainly appear to be intended by many Republicans to make it harder to vote,87 even if they do not necessarily have that effect. But this misses the point: there is no good reason why any voters, regardless of party, should face significant hurdles to voting for no good reason.
Consider those nineteen disenfranchised voters in Wisconsin. Are they being disenfranchised for a good reason? And what of eligible voters who are the victim of administrative incompetence, like Ms. Thompson in Texas, or voters who simply forget their correct identification at home, and cannot afford the few hours to wait in line and return to vote or show up at a government agency in the requisite time period at the voter’s own expense to prove identity? Why is it not unconstitutional to put new roadblocks in front of voters without adequate justification? The evidence that such laws prevent impersonation fraud or instill voter confidence is essentially non-existent.88
As I have argued elsewhere,89 we need a new approach to potentially burdensome voting laws which makes the state come forward with actual evidence that they are necessary:
In reviewing laws which impose burdens on voters, courts should adopt something along the lines of the “strict scrutiny light” standard which Judge [Terence] Evans advanced in his Seventh Circuit Crawford dissent. When a legislature passes an election-administration law discriminating against a party’s voters or otherwise burdening voters, courts should read the Fourteenth Amendment’s Equal Protection Clause to require the legislature to produce real and substantial evidence that it has a good reason for burdening voters and that its means are closely connected to achieving those ends. This approach would not require delving into the motives of legislators to determine if they were merely self-interested and had passed laws to hurt the other party, as opposed to being motivated by a desire to prevent fraud, save money, or instill voter confidence. Instead, evidence of such intent should prompt courts to look skeptically upon asserted state interests unsupported by actual evidence.90
Sam Issacharoff, building an analogy from antitrust law, has developed a similar “rule of reason” framework for evaluating when courts should intervene to block cutbacks to voting rights to politically vulnerable populations:
Two sets of cases provide the backdrop for the rule of reason analysis in voting rights law, one a statutory claim under Section 2 of the Voting Rights Act, the other a constitutional claim. Each involves a challenge to altered rules for the ability to cast a vote, with one dealing with voter identification requirements and the other with the availability of early in-person voting. What unifies them for purposes here is that both apply doctrines not generally directed at voting practices to craft a nuanced test for the relationship between the stated state objective and the burdens.
Each line of cases begins by identifying a threshold burden on the franchise and then shifts the bulk of the judicial inquiry to the state’s justification for the burden. Each eschews any rigid ruling that the claim to a particular form of identification or a particular form of early voting is an entitlement. At the same time, each carefully sidesteps any finding of improper purpose or animus on the part of state officials. Rather, each concludes by finding that the state fails to meet a burden of justification for proving that the claimed state objectives are best addressed at the cost of the associated burdens upon prospective voters.91
These new kinds of approaches, focusing on each voter’s right to vote free of unnecessary burdensome restrictions, is better than a deferential approach to voting cutbacks coupled with softeners.
In the end, the courts are misguided in relying upon softening devices to justify otherwise upholding unnecessary voting restrictions. The softening devices do not appear to be helping as much as the judges and justices may have envisioned, and in the meantime, an uncertain number of voters are being disenfranchised, inconvenienced, and discouraged from voting for no good reason. It would be better to throw these laws out completely than to pretend softening devices have significantly eased their ill effects.
* Chancellor’s Professor of Law and Political Science, UC Irvine School of Law. I presented an earlier version of this paper at “Casting Votes, Counting Votes for Election 2016: Democracy and Law in Action,” April 1–2, 2016, sponsored by The Institute for Legal Studies at the University of Wisconsin Law School. Thanks to Josh Douglas, Bill Groth, Sam Issacharoff, Rick Pildes, Nick Stephanopoulos, and Kathleen Unger for useful comments and suggestions, and to Nassim Alisobhani for research assistance.
**Cite as Richard L. Hasen, Softening Voter ID Laws Through Litigation: Is It Enough?, 2016 Wis. L. Rev. Forward 100, http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/.