Do you have a government-issued identification card? Like a driver's license? Yes? Well, so do I. But not everyone does. And when it comes to voting, "most of us do," should not be sufficient.
But what about voter fraud? If we have to present proof of identity at the movie theater, the market, or a store, shouldn't we have demonstrate that we are who we are when voting on who will represent us? Well, sure. In an ideal world in which most everyone has access to proper identification, that might not be a bad idea. But I have news for you; we do not live in that world. Some among us lack ID cards or meaningful access to them.
And perhaps even more to the point, there is really no evidence of voter fraud; At least not the kind that a photo ID would prevent. If there was evidence of voter impersonation, voter ID laws would serve an important purpose. But because there is not we must ask what purpose these laws further.
Some have argued that voter ID laws increase confidence in, and preserve the integrity of, the elections. But we must go behind that argument. Why do people lack confidence in elections? Or why do they think they lack integrity? And more significantly, can voter ID laws solve those problems? If there is virtually non-existent voter impersonation (as there is), then at best, voter ID laws are a solution in search of a problem.
Voter ID are likely about making it harder for certain segments of the population to vote, those who either do not possess voter IDs, or for whom obtaining an ID would be burdensome. Now, what else, if anything does this group have in common? They tend to vote for Democrats. And who tends to vote for laws implementing voter ID requirements? Republicans. This is a partisan issue.
Partisan politics can be positive. They help flesh out differences on important issues. There is nothing inherently negative about being a partisan. All that means is that you are a strong supporter of a party or cause. Partisans are dedicated to winning voters and votes. In an age in which too many people have disengaged from the political process, partisans are still civically-active.
But partisan political concerns should be absent when crafting laws that determine who can exercise our fundamental right to vote. When it comes to restrictions on who can vote, laws must be blind to partisan considerations.
Therefore voter ID laws could have at least two negative consequences. First, they may impermissibly burden the right to vote. Second, they may actually decrease voter confidence in our elections. A federal judge recently found as much when invalidating Wisconsin's voter ID law. If voters think their representatives are playing partisan politics with the machinery of elections and trying to stack the system towards a favorable outcome, voters will rightly lose faith in government.
What are we, as members of the electorate to do? There can be a two-pronged attack to these laws, one part political, and one part legal. First, members of the public could lobby their elected officials to repeal or not enact such laws. In states with the ballot initiative process who are considering voter ID laws, such as California and Missouri, voters could directly vote down those proposals.
Second, we can attack these laws in state and federal courts. Recently a federal judge in Wisconsin struck down that state's voter ID law, finding that it violated both the Voting Rights Act, and the 14th Amendment Equal Protection Clause. This ruling is significant on a number of counts, one of which is that it demonstrates that a portion of the VRA not hobbled by a Supreme Court decision last year could have some teeth. Federal lawsuits are pending in Texas and North Carolina.
State court judges in Pennsylvania and Arkansas recently invalidated voter ID laws on other grounds, finding that they violated the state constitutions.
But the news is decidedly mixed for voting rights advocates. Other courts have come to opposite conclusions. Here is looking at you Georgia and South Carolina. The legal landscape is far from certain.
Partisanship has a place in politics. Partisan politics have no place in shaping laws detailing the prerequisites for voting.
Jessica A. Levinson is an associate clinical professor at Loyola Law School, Los Angeles, where she teaches election law, money, politics and the Supreme Court, and the campaign finance seminar. She is also Vice President of the Los Angeles Ethics Commission. Follow her on Twitter @LevinsonJessica. She blogs at PoLawTics.lls.edu.