Photo from South Florida Sun Sentinel
Courts and Voter ID Laws: More Powerful Than You Think
By Nikolas Kluver
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Governor Ron DeSantis (R-FL) defends Florida Senate Bill 90 at a press conference, one of many pieces of state legislation proposed in recent years which would significantly tighten identification requirements to vote.
Voter Identification. You might not think about it twice when waiting in line to cast your ballot. When you get to the front, you simply hand over your Driver’s License or Student ID to the elections worker. Easy, right?
However, for millions of lower-income Americans, this is NOT the case.
There are 2 general categories of voter identification statutes: Restrictive and Nonrestrictive. Restrictive States provide election officials the prerogative to deny a voter’s right to vote if photo identification isn’t shown. Nonrestrictive States occasionally allow voters without photo identification to vote, but states still have the ability to deny said voter at the ballot box. Despite the misleading connotations of the word “Nonrestrictive,” states still have enormous jurisdiction over who can — or cannot — vote.
Over 25% of African Americans lack the photo identification necessary to vote in Restrictive States, while only 5% of white voters encounter this issue. This racial disparity has existed for over 70 years, ever since the first voter identification was instituted by the infamous segregationist Governor Strom Thurmond in 1950 South Carolina. His 1950 bill altered requirements for political candidacy to incorporate a literacy test. In the Jim Crow South, African American literacy rates were significantly lower than white literacy…so low, in fact, that reliable information regarding 1950s white literacy rates does not even exist.
If voter ID makes it easier for a white voter to vote than a black voter, then not all citizens are protected equally under the law, as the Constitution mandates. Your right to vote can and has been “legally taxed” for over 70 years, whether you realize it or not. Voter identification laws, then, function more like voter suppression laws.
The above graph displays the gap in turnout between studied minority voters and white voters in all states with various forms of voter ID.
Countless pieces of Congressional legislation have been proposed to rectify the clear disparities created by voter suppression laws, stemming back to Thurmond’s 1950 bill. H.R. 1, officially known as the For the People Act, would significantly increase voting rights if passed. It seeks to ban gerrymandering of House districts to benefit political parties, implement new ethics rules for incumbents, and tweak campaign finance law. However, it has been stuck in Congress since January 4, 2021.
In my own case, requesting a Vote-By-Mail ballot from the Florida Department of Elections has been an absolute nightmare. Of course, I have received nothing despite requesting it nearly a month ago. No one should have to jump through endless Congressional bureaucratic hoops simply to exercise their Constitutional rights. If this is the case, who is to say that American democracy is truly a democracy?
This is where the courts (most importantly, the U.S. Supreme Court) fundamentally should step in. Article III gives courts the power to block flagrantly unconstitutional statutes.
And, because of this, more than half of voter suppression statutes enacted in the past 8 years have been challenged at the federal court level. Some have been challenged four or more times, with most efforts actually being successful, such as in Spirit Lake Tribe v. Jaeger. In this case, the Spirit Lake Native American tribe sued — and won their case against — the U.S. District Court of North Dakota because their tribal IDs were consistently deemed “inadequate identification” at polling places, whereas regular Drivers’ Licenses were not.
Veasey v. Abbott and Berger v. North Carolina State Conference of the National Association for the Advancement of Colored People, both cases from 2016, show the courts’ effectiveness in these strike downs. In Veasey, a man sued in opposition to a Texas law which permitted handgun licenses as a valid form of identification, but not government-issued identification. The law also required 2 additional identification proofs to vote, ranging from a birth certificate, to court documents, to even a naturalization certificate. Upon discovering the incredible hypocrisy in the legislation, the U.S. Supreme Court quickly struck it down.
The ramping of courts’ “strike down power” is possible at the state level, too. In Berger v. NAACP, the United States Fourth Circuit Appellate Court found a North Carolina state statute racially discriminatory — their opinion quotes the statute as “targeting African-Americans with almost surgical precision.”
If we, the voters, actively bring voter ID cases to the courts, the outcome is obvious. The courts will seek justice. Instead of leaving this pressing issue to a lackadaisical Congress full of red tape, have the courts strike down plainly unconstitutional voter suppression statutes, one by one. Only then will real change be seen.
Action Statement:
The British Government of Prime Minister Boris Johnson is also considering implementing punitive photo identification as a prerequisite to vote. Read more and sign a petition in opposition below: https://www.change.org/p/british-government-stop-government-plans-for-voter-id
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