JURIST Guest Columnist Josh Douglas of the University of Kentucky College of Law says that state constitutions are becoming an important source of voting rights in challenges to recent laws requiring specific forms of voter identification…

An emerging storyline in this year’s election season is the increased implementation of voter ID laws around the country. From Wisconsin to Texas to Virginia, state legislatures are enacting new laws requiring voters to show some form of photo identification at the polls. Just as quickly, opponents are filing suit in both state and federal courts to challenge the laws on various grounds. While none of this is particularly novel, the added twist is the prominence of state constitutions in these disputes. In fact, given the current US Supreme Court’s narrow interpretation of voting protections, state constitutional recognition of the right to vote may have a tremendous impact in limiting some states from requiring voters to show identification this Election Day.

Proponents of voter ID laws posit that they are necessary to protect the integrity of the election process. Those who oppose the laws, by contrast, explain that they do not root out any documented fraud and that they actually disenfranchise certain groups of voters, particularly minorities, the indigent and students. There is also a partisan bent to the disputes: Republicans tend to favor voter ID laws and Democrats oppose them because groups that more often vote Democratic are, as a general matter, less likely to possess the required form of identification and therefore will be unable to vote.

Predictably, many of these laws are subject to legal challenges soon after legislatures enact them. In 2006, the US Supreme Court held in Crawford v. Marion County Election Board that Indiana’s voter ID law — which was among the most stringent in the country at the time — passed constitutional muster as a general matter, and that it was unlawful only if there was actual evidence that the requirement deprived certain people from voting. Under this ruling, unless there is stark evidence of disparities, photo identification laws are valid under the US Constitution.

That still leaves open the potential that the laws violate federal statutory law or state constitutional provisions. Wisconsin recently passed a new voter ID law that is now the strictest in the country, requiring voters to show a particular form of ID either at the polls or to election officials by the Friday after the election. Groups such as the Advancement Project and the Americans Civil Liberties Union have filed suit, alleging that the new law violates the federal Voting Rights Act because of its asymmetric impact on racial minorities. In essence, the plaintiffs argue that racial minorities disproportionately do not possess the required identification or have the means to obtain one, so the law acts to disenfranchise these voters.

These plaintiffs, however, have an uphill battle. To prove a violation of Section 2 of the Voting Rights Act, the plaintiffs must demonstrate that Wisconsin’s voter ID law discriminates on the basis of race, color or membership in a language minority group. Under the governing statute and case law, a voting practice or procedure violates Section 2 only if, under the “totality of the circumstances,” the political process is “not equally open to participation” to a racial minority “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” This presents a fairly high evidentiary hurdle: the plaintiffs must show that Wisconsin’s new voter ID law, in its actual use, makes it less likely for racial minorities to be able to participate in the political process and elect their favored candidates. That is, there must be hard data that the voter ID law results in a “denial or abridgment” of minorities’ right to vote. It is unlikely that there is sufficient probative evidence to win this claim.

This is where state constitutions come into play. Many state constitutions offer greater protection for the right to vote than does the US Constitution. The Wisconsin Constitution, for example, provides, “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.” The Wisconsin Constitution allows the legislature to enact laws excluding the right to vote to convicted felons or those judged “incompetent” or “partially incompetent.” It also permits the legislature, subject to ratification “by the people,” to expand voting rights to “additional classes.” The Virginia Constitution similarly grants the “right of suffrage” to “all men.” This is in stark contrast to the US Constitution, which does not enumerate an affirmative right to vote, instead simply placing certain limits on denying the franchise. That is, a right to vote under the federal Constitution is merely implied. Plaintiffs have invoked the Wisconsin Constitution’s more robust protection in state court to challenge the new voter ID law.

This strategy has proven effective. Recently, two separate district courts struck down Wisconsin’s law as violating the state constitution. The courts ruled that the Wisconsin Constitution provides an affirmative grant of the right to vote and that the Wisconsin voter ID law is a restriction on that right. Put simply, the Wisconsin Constitution gives the right to vote to “[e]very … citizen,” with only a few qualifications, and a law that prohibits those citizens who do not show an ID from voting adds an additional hurdle that the state constitution does not sanction. The voter ID law “impermissibly eliminate[s] the right of suffrage altogether for certain constitutionally qualified electors.”

The voter ID law poses an unlawful qualification on voter eligibility because some otherwise eligible voters may not have an ID. Obtaining the necessary government-issued identification in Wisconsin requires a voter to procure a birth certificate, which costs money. The law, then, acts as a type of poll tax, which violates the Wisconsin Constitution’s grant of the right to vote to “[e]very United States citizen age 18 or older who is a resident of an election district in this state.” As one of the courts explained, “[t]he right to vote belongs to all Wisconsin citizens who are qualified electors, not just the fortunate majority for whom [the voter ID law] poses little obstacle at the polls.”

Moreover, the state failed to show that the law would combat voter fraud because there was little evidence that ineligible people misrepresent themselves when voting in person. Most fraud actually occurs through the improper use of absentee ballots, which the voter ID law would not combat. One court expressly distinguished Crawford, the US Supreme Court case from 2006 involving Indiana’s voter ID law, by noting that its decision rested on the Wisconsin Constitution, not the US Constitution. “[T]he qualification for voting is guaranteed in the [state] constitution,” the court concluded, “and cannot be changed by statute or impaired by regulation.”

The state is appealing these decisions to the Wisconsin Supreme Court. But as the district courts’ analysis shows, there is a compelling argument that the law violates the Wisconsin Constitution. Indeed, other state supreme courts have struck down voter ID laws under their state constitutions. The Missouri Supreme Court, for example, ruled in 2006 that Missouri’s voter ID law violated the Missouri Constitution’s affirmative grant of the right to vote, which “receive[s] state constitutional protections even more extensive than those provided by the federal constitution.” The question is not fully settled, however; other state supreme courts, such as those in Georgia and Michigan, have gone the other way based on the language and interpretation of their state constitutions. The Michigan Constitution, for instance, is more like the US Constitution in failing to enumerate expressly the right to vote. Regardless, explicit state constitutional safeguards of the right to vote are seeing renewed vitality in the wake of federal law’s inability to offer the same level of protection.

Voter ID challenges are not the only election related litigation that have recently invoked state constitutional provisions. Those who opposed the 2012 Kentucky redistricting plan successfully argued both to the lower court [PDF] and the Kentucky Supreme Court [PDF] that the new map violated the state’s constitution. In fact, although there were potentially valid federal constitutional and statutory arguments, the courts focused their inquiry solely on the Kentucky Constitution, and the decisions turned on whether the map satisfied the state constitution’s mandates. This proves the newfound importance of state constitutions in election law cases. Given the conservative bent of the current US Supreme Court, federal law may not be robust enough to give necessary scope to an individuals’ right to vote. State constitutional grants of voting rights, often overlooked, have become an important new battleground in election law.

The fate of voter ID laws may have a significant impact on the 2012 elections, as they will help to shape the scope of the electorate. Put succinctly, if these laws remain on the books, fewer people will have the ability to vote in November. State constitutions may be the best mechanism to challenge voter ID requirements and ensure that all voters have a say in picking our next leaders.

Joshua Douglas is Assistant Professor of Law at the University of Kentucky College of Law. His research focuses on election law, including the interaction between election processes and the judiciary. Prior to his academic career, Douglas clerked for Judge Edward Prado of the US Court of Appeals for the Fifth Circuit.

Suggested citation: Josh Douglas, State Constitutions: A New Battleground in Voting Rights, JURIST – Forum, Apr. 3, 2012, http://jurist.org/forum/2012/04/joshua-douglas-voter-id.php.