Voter ID Laws

Do voter ID laws prevent election fraud or disenfranchise innocent voters?

Adam Freedman
4-minute read

Voter ID Laws

Today’s Topic: Voter ID Laws

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Voter ID Law is Upheld – For Now

As the 2012 election approaches, lawsuits are breaking out all over the United States to contest new voting regulations being implemented in a number of states. In the latest round, on Aug. 15, 2012, a Pennsylvania judge allowed a state law to go into effect that requires voters to show photo identification before they can cast their ballot. . Although this was only a preliminary ruling, and not the final decision on the law’s constitutionality, it has grabbed headlines across the country and even fueled an investigation by the U.S. Department of Justice. Let’s examine why voter ID laws are so controversial, and why the judge decided, at least for now,to uphold this new law.

Back to the issue!

The Voter ID Controversy

Voter ID laws have passed in various states, including Pennsylvania, Ohio, and Indiana. The Indiana law has been upheld by the U.S. Supreme Court, while the others still face court challenges. 

The advocate’s argument is straightforward – it’s a mechanism to combat fraud. And besides, what’s the harm of requiring people to prove that they are who they say they are? But the opponents claim that they are designed to disenfranchise voters who are least likely to have photo IDs, such as the indigent or elderly. This is why the U.S. Department of Justice is investigating the Pennsylvania law.

New Pennsylvania Law Requires Photo ID

The Pennsylvania law is known as Act 18. Enacted in March 2012, it  requires people seeking to vote in the Commonwealth to first show some form of photo identification  issued by a federal, state, or municipal agency, including state universities. People who have a religious objection to having their picture taken are allowed to use certain state-issued IDs without photos. And, finally, anybody who shows up at the polls without an ID is allowed to cast a provisional ballot, which will count as long as the voter can deliver proof of identification within six days.

Does the Voter ID Law Violate Fundamental Rights?

The validity of Act 18 has been challenged by individuals and organizations who argue that the law violates the Pennsylvania Constitution in three respects:

  • First, that the law places an undue burden on the right to vote.

  • Second, that it violates the guarantee of “equal protection” because it affects some groups of voters more than others (see my earlier article for more on equal protection).

  • And third, that it creates a new qualification for voting beyond what the constitution requires.

The challengers asked the court to impose a preliminary injunction; in other words, they wanted the judge to stop the state from enforcing the law until the lawsuit is resolved. It’s not clear how long the case will take, but an injunction would certainly mean that the law would not be in effect for the November 2012 general election.

The Voter ID Law Does Not Cause “Irreparable Harm”

Commonwealth Court Judge Robert Simpson denied the preliminary injunction. Simpson ruled that the challengers had failed to show that they would suffer “irreparable harm” without an injunction – and, typically, judges refuse to impose injunctions without a showing of irreparable harm. Because of measures taken by the state to accommodate people without a photo ID, Judge Simpson concluded that voters would not be disenfranchised by the law.

The Law Does Not Burden the Right to Vote

But the judge also said that the lawsuit against Act 18 was unlikely to succeed on the merits. To strike down a law, a court has to be convinced that the law is destined to violate the constitution under all circumstances; in other words, that there is no way the state could enforce the law without infringing on people’s rights.

In this case, the challengers raised a number of hypothetical scenarios in which the law could create an undue burden on people’s right to vote. However, the judge was not convinced that any of those scenarios would come to pass. Moreover, the judge ruled that the challengers were not likely to establish a violation of “equal protection” because the Voter ID law is not aimed at any particular group. It simply gives poll workers another tool to verify that the person voting is who they claim to be.

The Supreme Court Has Approved Voter ID Laws

Although the Act 18 lawsuit was based on the Pennsylvania Constitution, Judge Simpson’s decision was heavily influenced by a 2008 decision of the U.S. Supreme Court in Crawford v. Marion. In Crawford, the high court upheld an Indiana voter ID law against a challenge based on the U.S. Constitution. The Supreme Court said that a voter ID law that is justified for valid neutral reasons – like combating voter fraud – should be upheld even if the law was motivated by partisan interests. When reviewing a challenge, a court should generally defer to the legislature’s judgment.

But let’s get back to Pennsylvania.The fate of Act 18 is now in the hands of the state’s Supreme Court, where the challengers will try, yet again, to get the law struck down. Since Pennsylvania is considered a “swing state,” political strategists are hoping that the voter ID law (or lack thereof) will tip the balance of the election. We won’t know that, of course, until November.

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People Lined Up to Vote and Woman Who Voted images from Shutterstock

About the Author

Adam Freedman

Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).