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Christopher Watts

Excerpted from: Christopher Watts, Road to the Poll: How the Wisconsin Voter Id Law of 2011 Is Disenfranchising its Poor, Minority, and Elderly Citizens, 3 Columbia Journal of Race and Law 119 (2013) (253 Footnotes)(Student Note)

A. Federal Acts

Until the end of the last century, the federal government had very limited involvement in the regulation of suffrage rights. Since the majority of the decisions regarding the right to vote had been handled by the states, the range of different rules and requirements was expansive. This section will explain the federal laws that were passed at the end of the twentieth century and the beginning of the twenty-first, and will address both their purposes and their effects on general suffrage rights in America.

1. National Voter Registration Act

The National Voter Registration Act of 1993 (NVRA), also called the “Motor Voter Law,” was the first major piece of federal legislation enacted explicitly to influence the actions of voters and states, specifically by allowing citizens to register to vote while applying for a driver's license. Not to be confused with the Voting Rights Act discussed above, one purpose of the NVRA was to enhance participation of eligible citizens in the electoral process. In essence, this Act made it easier for citizens to exercise their right to vote, thereby decreasing the levels of disenfranchisement across the nation. The NVRA removed nonvoting as a valid reason for a state to remove voters from registration records. It also required states to accept mail-in registration forms, which, by default, prevented states from requiring the in-person registration that they had been using as an opportunity to check voter identification. Other provisions required fairly complicated procedures to remove voters who had changed addresses from registration rolls, and allowed those voters to vote in the precincts of their old or new addresses. Opponents of the NVRA claimed that these new standards only made it more difficult for polling places to maintain the integrity of elections and that the Act made it easier for dishonest citizens to vote under the names of others. Over time, these opponents sought a way to even out what they claimed to be unfair, and the Help America Vote Act was a strong start in that direction.

2. Help America Vote Act of 2002

Seven years after NVRA was enacted, the elections calamity of 2000 provided an opportunity for proponents of voter identification requirements to seek a path of implementation for voter ID laws. During the 2000 elections, thirty-one states did not have requirements that voters prove or verify their identity at polling places. Four of these states had optional identification requests, nine required voters simply to state their names in order to vote, and eighteen required voters to sign a poll book. The remaining states required each voter either to show proof of identity through a wide range of possible documentary forms or to provide a signature at the polling place that would be compared to a signature made elsewhere.

The presidential elections of 2000 and state voting requirements during that time are particularly relevant to the subsequent explosion of state voter identification requirements because of the immense voter problems that led to the contested outcome of that race. The problems with the Florida ballots brought a surplus of attention to the election processes of both that state and the country as a whole and resulted in Congress' grueling passage of the Help America Vote Act of 2002 The Act aimed to reform the voting system and attempted to ensure that another event like the one in Florida did not happen again by preventing voter fraud, especially in the voter registration systems in the states. HAVA mandated the creation of a nationwide database of voter registrants and the uniform and regular maintenance of state lists, and required mail-in voters to designate that they were citizens and over eighteen. HAVA also included a voter identification requirement.

This identification provision required that mail-in registrants who had not previously voted in the state show proof of identification either upon registration or arrival at the polling location for the first time. The requirement could be fulfilled by submitting a utility bill, paycheck, or other government-approved document showing name and address, or by providing a driver's license number or the last four digits of a Social Security number. Though this provision in HAVA was one of the most limited in terms of its effects, it served as a springboard for proponents of voter identification laws to push forward with state legislation in that regard.

When HAVA was passed, only eleven states were in compliance with its voter identification requirement. This fact pushed states to act quickly, and legislators who favored strict voter identification laws used it as an opportunity to get such laws passed. HAVA included a stipulation that arguably supported the proposition for strict voter identification laws; the Act specified that its requirements were minimal and that states were free to enact stricter rules as long as they did not clash with federal law. As of January 2012, thirty states had enacted voter identification requirements in order to register to vote. Due to the speed of expansion of these new voter identification laws, several challenges to their validity have been brought before the nation's courts.

B. Challenges to State Voter ID Laws

There have been various challenges to the constitutionality of voter identification requirements in numerous states since the passage of HAVA, and the results have not been consistent. Because of the similarities between different state laws, it may be helpful to understand the legal claims that have been made and the different holdings reached by courts in different states in order to highlight the inconsistencies between both the laws and the decisions. This Section will provide the relevant facts and statutory issues surrounding key decisions in Georgia, Missouri, and Indiana. These cases were selected because each one was heavily litigated and appealed, and together they paint a broad picture of how the courts have approached voter identification laws around the country. The cases also show the variety of approaches that courts can take when analyzing these laws, each of which will be addressed below with regard to the Wisconsin voter identification law.

1. Georgia

Three years after the passage of HAVA, Georgia's passage of a highly restrictive photo identification requirement rendered Georgia the second state to make the presentation of a photo ID an absolute requirement in order to cast a ballot in elections. This 2005 law was possibly the strictest voter identification regulation to be passed after HAVA; it gave no opportunity for free photo identifications to individuals who could not afford them, and it allowed no provisional ballot option to those arriving at polling locations without proper identification. The legislature even voted to increase the costs of existing photo identifications along with passage of the law. The plaintiffs in this suit, consisting mostly of Black and African American civil rights groups such as the NAACP, claimed that this law violated the Fourteenth and Twenty-Fourth Amendments, the Civil Rights Act of 1964, and the Voting Rights Act of 1965. The district court preliminarily enjoined the law, finding that the plaintiffs had a substantial likelihood of success on their claims. The court agreed with the claim that the law placed undue burdens on citizens and operated as a poll tax, and provided several examples of the types of undue burdens placed on citizens:

Many voters who do not have driver's licenses, passports, or other forms of photographic identification have no transportation to a voter registrar's office or DDS service center, have impairments that preclude them from waiting in often-lengthy lines to obtain Voter ID cards or Photo ID cards, or cannot travel to a registrar's office or a DDS service center during those locations' usual hours of operation because the voters do not have transportation available .... [M]any voters who lack an acceptable Photo ID for in-person voting are elderly, infirm, or poor, and lack reliable transportation to a county registrar's office. For those voters, requiring them to obtain a Voter ID card ... is unduly burdensome.

Even though the district court found that the law served only to disenfranchise citizens, legislators did not give up and created an amended version very quickly.

In January of the following year, the Georgia legislature passed a new law that repealed the 2005 version and added provisions to fill some of the holes that the court had found in the law's predecessor. Under the new law, citizens could present one of many forms of photo ID when attempting to vote, and a new acceptable form of identification was to be offered for free to individuals who could provide the proper documentation. For voters who had no form of photo identification, the administrative regulations allowed the presentation of documents such as birth certificates, prior year's tax returns, or marriage certificates as proof of identity. For voters who could not verify their identities, the new law allowed provisional ballots that would be counted if the voters' identities could be proved within a specified timeline.

The same plaintiffs claimed that the 2006 law violated the Georgia Constitution, the Fourteenth and Twenty-Fourth Amendments, the Civil Rights Act of 1964, and the Voting Rights Act of 1965. This time, the district court ruled that it would be a stretch to consider burdens such as the gathering of documentation or the travel time expended to get to an approved location as poll taxes, and it rejected the arguments that the law violated any of the provisions of the Civil Rights or Voting Rights Acts. The district court also found, however, that the plaintiffs had a valid equal protection claim, because even though the state's interest in preventing voter fraud was “important and legitimate,” the law was not narrowly tailored to that interest. The district court used the Burdick Test as the standard for review. It weighed factors such as the weakness of the state's efforts to educate voters on changes in the law, the lack of proof of voter fraud as a problem, the availability of less burdensome alternatives, and the fact that the time period before the election was too brief to pass a law such as this one. The court made clear that it based this decision in favor of the plaintiffs on the fact that the law was not narrowly tailored to the state's interest, and not on any invalidity of the law itself. In fact, in response to another challenge to the law the following year, the same court upheld the constitutionality of the law, denied a permanent injunction request, and found the law reasonably related to the state's interest. In explaining the difference between the 2007 decision and the previous one, the court specifically noted the state's efforts to educate the public about the changes in the law.

The 2006 law was again attacked at the state level in 2011, at which point it reached the state supreme court. Different plaintiffs brought the same claims against the law that had been made in 2006. The court found that the photo ID requirement was a reasonable procedure under the Georgia Constitution; that the statute did not deprive voters from casting a ballot and was therefore constitutional; and that the requirement was a minimal, reasonable, and nondiscriminatory restriction that served the state's interest in preventing voter fraud. Georgia's photo identification law was thus upheld by the state's highest court as valid and constitutional, and has not been challenged since.

2. Missouri

The same year that Georgia passed its amended photo ID law, the state of Missouri passed its own law mandating that voters present valid in-state or federal photo identification in order to vote. The state claimed that this identification requirement was intended to prevent the impersonation of registered voters.

Missouri's law required each voter to “present as identification a document issued by the state or federal governments that contains the person's name as listed in the voter registration records, the person's photograph, and an expiration The law allowed the casting of provisional ballots if voters would sign an affidavit swearing that they did not have, or were not able to obtain, a proper photo ID due to religious beliefs, disability, or a birthdate on or before 1941. The law also gave those without proper photo identification and without the means to obtain it the option to request a free non-driver's license. The legislature even provided mobile processing units that would be made available upon request to the disabled and elderly for the distribution of such licenses.

What the law did not provide was a method for individuals who did not possess the necessary documents, such as birth certificates or marriage licenses, to acquire a valid photo ID without having to pay for it. The law also only allowed provisional ballots to be circulated to people who met specific conditions that did not include common problems such as a lack of funds or difficulty in navigating the process of obtaining a proper identification, and required a signature for each of these ballots. The signature provided on the affidavit had to match the signature on file with the election authority, and the law did not provide an alternative for disabled individuals who were unable to produce the same signature or for those whose signatures had changed.

The state supreme court struck down the law as unconstitutional. Because the right to vote is a fundamental right under the Missouri Constitution, the court applied strict scrutiny to its analysis of the law. The court examined the monetary and procedural burdens that were placed on citizens and found that even the free form of identification came with costs related to the acquisition of proper proof of identification. The court stated that even though the cost associated with the requirement of a document such as a birth certificate or passport does not qualify as a poll tax, “it is a fee that qualified, eligible, registered voters who lack an approved photo ID are required to pay in order to exercise their right to free suffrage under the Missouri In the end, the court decided that the weight of the bureaucratic process in place lay unfairly on the shoulders of the poor and the elderly.

Even though the court found the state law invalid and unconstitutional, it determined that the state's interest in the prevention of voter fraud was compelling. However, it held that the law was not narrowly tailored to this interest because the photo ID requirement prevented only in-person fraud and did not affect absentee or registration fraud. The court further held that state laws enacted after the passage of HAVA had already effectively contained voter fraud. It then concluded that the law violated the Missouri Constitution.

3. Indiana

In 2005, Indiana passed the Senate Enrolled Act No. 483 (SEA 483), which applied to citizens voting in person at polling locations during both general and primary elections. The law required these citizens to present a valid, government-issued photo ID in order to cast their ballots. It allowed voters with religious objections to being photographed or who could not afford the proper form of identification to cast provisional ballots that would be counted if each voter signed an affidavit with the circuit court clerk within ten days of the election. Voters who claimed to have an appropriate form of photo ID but were unable to present it at the polling location could also cast provisional ballots that would be counted if they presented it to the county clerk within ten days. SEA 483 did not apply to absentee ballots and exempted voters living in state-licensed facilities such as nursing homes. Voter registration did not require a photo ID, and qualified voters able to prove residence and identity could obtain free photo identification.

The case against Indiana's law was the first time a specific state voter identification law came before the U.S. Supreme Court. The issue before the Court was whether the law requiring government issued photo identification to vote violated the Fourteenth Amendment and the Voting Rights Act.

In a plurality decision with three justices joining the Court's opinion, one justice concurring and filing a separate opinion, two justices filing one dissent, and one justice filing a separate dissent, the Court held that the state interests identified as justifications for the Indiana statute were sufficiently weighty to validate any limitation the requirement imposed on voters. In announcing the Court's judgment, and writing for Chief Justice Roberts, Justice Kennedy and himself, Justice Stevens claimed to agree with the general rule that “evenhanded restrictions” that protect the “integrity and reliability of the electoral process itself” were not invidious and satisfied the standard set forth in Harper. This standard was that rational restrictions on the right to vote were invidious if not properly related to voter qualifications. The Court found no such problem with the law at issue and decided that each of Indiana's interests in protecting the electoral process was adequately related to the photo ID restrictions. The first valid interest was the state's desire to detect and deter voter fraud by participating in the national effort to reform election procedures that were seen as outdated. The next valid interest lay in the prevention of voter fraud that might occur due to the high number of names on Indiana's voter registration rolls of individuals who were deceased or who had moved out of state. With regard to this interest, the Court admitted that SEA 483 only addressed in-person voter impersonation, which, according to the evidence before the Court, had not actually occurred in any Indiana election. Justice Stevens nonetheless maintained the validity of the interest by mentioning occurrences of this type of fraud in other states and discussing a mayoral race five years earlier that had involved potentially fraudulent absentee voting, a problem not addressed by SEA 483. Justice Stevens used these examples to demonstrate the reality of the threat of fraud and its potential effect on close elections. The final state interest the Court addressed was the desire to protect public confidence in elections because confidence encouraged participation in the electoral process.

In reaching its decision, the Court applied the Burdick Test, weighing the state's interest against the burdens imposed by the law's requirement. In its discussion of possible burdens, the Court found that any photo ID requirement would create some type of burden that other methods of identification might not. It used the example of an individual's loss of his wallet before voting to explain how burdens “arising from life's vagaries” were not serious or frequent enough to raise constitutional questions. The Court also found that burdens such as the inconveniences of retrieving a valid ID or gathering the documents needed to prove identity are not substantial enough to represent a significant increase over normal burdens associated with voting. The Court determined that the most significant burdens, such as those placed on people who could not afford photo identifications or who could not secure any of the required documentation to prove identity, were indeed severe, but that in light of the low number of individuals affected by such conditions, these burdens did not establish the grounds necessary to strike down the law.

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The United States is a fairly young nation, but it is one with a rich history and a great deal of promise. The cliché that history repeats itself and that the collective “we” should learn from it and not let the worst of it happen again, while overused, is still an axiom to be followed. Laws such as Wisconsin's Act 23 come dangerously close to allowing some of the worst parts of our history to rise again.

Voting rights in this country, as they exist today, are the result of a complicated past. The country initially allowed only wealthy white men to participate in the electoral process. Later amendments to the Constitution allowed white women, and, theoretically, African Americans to enjoy suffrage rights, but the sanctioning of suffrage laws affecting only the latter soon thwarted these rights. The rationality and fairness of voting laws finally began to even out in the middle of the twentieth century, but it appears that certain states are again seeking to displace the suffrage rights of specific groups of voters.

This Note is not intended to be political in its scope, but one cannot help but notice the relationship between the passage of strict voter identification requirements in the states and the political party in power at the time. Act 23 was not passed in Wisconsin until there was a Republican governor and a Republican-run legislature. In fact, when Act 23 was passed in 2011, the state assembly adopted only one out of 376 bill amendments proposed by Democrats. In 2008, the following groups voted Democrat: seventy-three percent of families making less than $15,000 per year; sixty-three percent of those who did not graduate from high school; fifty-four percent of voters in the Midwest; sixty-six percent of voters under thirty years old; sixty-seven percent of Hispanic voters; and ninety-five percent of Black and African American voters. These happen to be the same groups whose members are most likely not to possess a proper photo ID and to be unable to afford the costs associated with retrieving one. The reader can draw his or her own conclusions about this happenstance.

Act 23 places extraordinary burdens on those listed above who seek to exercise their constitutional right to vote. The Act places the poor, many of whom are African American, into a position of marginalization that is at odds with our historical struggle against racial inequality. Potentially hundreds of thousands of eligible and registered voters may find themselves in a situation in which, unable to obtain an appropriate photo ID, they will be unable to cast their ballots. This would be a tragedy and a return to a period in history that should not be revisited.

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. J.D., 2013, Columbia Law School; LL.M., 2013, University of Amsterdam Law School; B.A., 2007, Carleton College.