The voter identification provision in North Carolina’s new election law has drawn considerable attention from across the country. Democrats have, of course, been highly critical of it. They believe the new rules put poorer, younger, and particularly minority voters at a disadvantage since these people are less likely to own the forms of photo ID that will be accepted at the polls — a driver’s license, passport, veteran’s ID, or tribal card. They generally are the types of citizens who cast their ballots for Democrats.
This opposition is not just about political strategy. The legal argument brought by some liberal groups is based on the concept that governments continue to prohibit citizens from exercising their rights based on some demographic characteristic they exhibit such as race or sex. In the case of voter ID, liberals generally don’t point to concrete violations of the 14th Amendment’s critical “equal protection” clause — “No state … shall deny to any person within its jurisdiction the equal protection of the laws” — but argue the requirement is unconstitutional because membership in a particular collection of individuals is likely to affect a disproportionately large number of them negatively.
It does not matter that the regulation affects all citizens evenly or that, in direct response to the specific focus on race, there are no racial barriers to having or acquiring the necessary identification. Liberals tend to look at groups and statistical probabilities rather than individuals and actualities. They believe equality is violated not because the law is inherently unequal but because it presumably exaggerates or does not rectify existing inequalities.
Despite voter ID’s popularity with the public, an argument can be made that the state’s law is bad public policy. It makes voting more difficult and, theoretically at least, reduces participation in the process of determining who will make the decisions citizens must live by. We can argue over how much of a hurdle has been erected. Imposing voter ID rules in other jurisdictions has not reduced materially the proportion of eligible voters who cast ballots. But there is no doubt that, even if minimal, an obstacle exists.
We also can argue whether this is a proper price to pay to maintain the integrity of elections. In our simple plurality, winner-take-all elections, an illegitimate vote for a candidate negates a legitimate one for his opponent, effectively disenfranchising the individual who cast it.
As U.S. Supreme Court Justice John Paul Stevens wrote for the majority in a 2008 case involving Indiana’s voter ID law, Crawford v. Marion County Board of Elections, the state has a legitimate interest in combating fraud and maintaining public confidence in the democratic process. And while voting irregularities occur, we have little evidence that they are as problematic as some proponents of photo ID suggest.
If you believe, as I do, that rights belong to individuals, it is much harder to argue the current voter ID provision is intrinsically unconstitutional. It applies to all who are eligible to vote under ex ante rules (that are presumably fine with everyone). As Justice Antonin Scalia described the Indiana approach in his concurring opinion in Crawford, it is a “generally applicable, nondiscriminatory voting regulation.”
If the need for photo identification might be more of a burden to one voter than another, so might the varying distances citizens live from polling places. In Stevens’ ruling, the only way such a law can be unconstitutional is if it suppressed voting generally. That is an unknown at the moment, although as I noted above, the experience of other states suggests it wouldn’t.
Still, a law that should have an even effect across a large population might not be administered in that way. What happens if large numbers of voters are not asked for identification while millions of others are? In smaller precincts, election workers who know many voters as their friends and neighbors will not ask for proof of identity. What happens if people are charged inadvertently for obtaining a photo ID they need only for the purposes of voting? The new law is designed to prevent that from happening, but the procedure is so complex it could occur quite frequently, effectively subjecting an individual to an unconstitutional poll tax.
These situations seem perilously close to violating constitutional principles of equal protection. Given the complexity of the law, continued resource constraints on election administration, and the new relaxed restrictions on partisan inspectors at polling places, constitutionally suspect unequal application of the voter ID requirement is likely to occur and will be reported.
There is nothing legally problematic about requiring voters to produce a photo ID as they cast their ballots. But we need to make sure the regulation is implemented fairly and evenly if we are to give the Constitution’s equal protection clause the respect it deserves.
Andy Taylor is a professor of Political Science at the School of Public and International Affairs at N.C. State University.