"how the Sausage Gets Made": Voter Id and Deliberative Democracy

• Jurisdiction: United States,Federal,Kentucky
• Citation: Vol. 100
• Publication year: 2021

100 Nebraska L. Rev. 376. "How the Sausage Gets Made": Voter ID and Deliberative Democracy

"How the Sausage Gets Made": Voter ID and Deliberative Democracy

Joshua A. Douglas ^[*]

TABLE OF CONTENTS

I. Introduction .......................................... 377

II. The Legislation: A Tale of Sausage Making ............ 380
A. Campaign for Kentucky Secretary of State ......... 380
B. Evolution of the Bill Requiring a Photo ID To Vote. 382
1. Kentucky's Prior Rule ......................... 382
2. Initial Introduction of S.B. 2 ................... 384
3. Substantive Changes During the Legislative Debate ........................................ 387

III. Every Good Law Story Needs Some Litigation: The Lawsuit and the Subsequent Changes for the November 2020 Election Due to the Pandemic .................... 399

IV. Lessons from the Kentucky Experience ................ 403
A. Voter ID Laws as Inherently Partisan ............. 406
B. Deliberative Democracy ........................... 409
1. Procedure ..................................... 411
2. Substance ..................................... 414
3. Judicial Review ................................ 417

V. CONCLUSION ....................................... 423

1

I. INTRODUCTION

In 2020, Kentucky became the twentieth state to enact a law that requires voters to show a photo ID at the polls to vote. ^[1] Yet the law is one of the most mild and reasonable photo ID laws to pass in recent memory. This article tells the inside story of how that law came to be. And it presents the broader story of how the process of crafting legislation, when employing a theory of deliberative democracy, can increase legitimacy and produce better results for the functioning of our elections. The Kentucky story therefore offers important lessons for election law policy during this perilous time in our nation's history.

It is a tale of mystique and intrigue, with shady characters and plenty of sex, drugs, and rock-n-roll. Okay, not really. The story I will tell is perhaps more mundane, but it provides an inside perspective on how a law such as this one came into force. It also offers my own insights as someone who was "in the room where it happens." ^[2] I advised Kentucky Secretary of State Michael G. Adams on the bill, wrote several opeds in Kentucky newspapers, and testified before the House committee that considered it. Yet, besides my role as a law professor at a public institution, I am not a governmental actor. In some ways, I have both an insider's and an outsider's perspective on the matter.

I have previously argued that voter ID laws are unnecessary. ^[3] They are a solution in search of a problem, as the only kind of voter fraud that a photo ID law can prevent is in-person impersonation, and that type of fraud hardly ever occurs. ^[4] I have explained why courts should strike down strict photo ID laws, particularly under state constitutions, and several courts have done just that. ^[5]

2

So, it may seem passing strange that I did not outright oppose the enactment of a photo ID law for Kentucky elections. Instead, I advocated to moderate the law so it would negatively impact as few voters as possible. This experience can offer lessons to the broader legal and policy community about the kind of moderation that is attainable-especially when one-party control assures passage of a new voting rule-and the ways to approach thorny, inherently partisan policy questions about election administration. Indeed, the passage of the photo ID law in 2020 opened the door to the broader, voter-friendly plan to administer the election during the pandemic: the Republican secretary of state could point to this legislative achievement to placate his side while working with the Democratic Governor to expand voter access.

These days, debates about election policy seem like fights to the death, with no ability to compromise. The gulf between the need to expand the right to vote and the desire to respond to allegations of voter fraud-however unfounded those claims may be-seems insurmountable. When viewed within the broader context of long-term electoral reform and best practices for the legislative process, the Kentucky story offers a way out of the morass. The Kentucky plan also offers lessons for election law legislation and suggests a way to bridge the divide between the two sides. The experience is an example, at least in part, of a legislative theory of deliberative democracy, which posits that laws are more legitimate when the legislative process is open to all stakeholders and when opponents can have a meaningful influence on the final outcome. ^[6]

Kentucky's new law, as enacted, is likely one of the mildest forms of a photo ID requirement for voting in the country. I still do not support photo ID laws as a general matter, and I do not think this law was necessary. But thanks to various amendments to the bill, the law will likely harm far fewer voters, at least as compared to the proposal when initially introduced. If there is going to be a photo ID law- which, to be clear, there should not-then this bill is a model for other states to follow. Ultimately, the debate on the bill offers lessons for how we, as a society, should expect the legislative process to occur-as well as a few pitfalls to avoid.

3

This Article has three goals, corresponding to its three main Parts. After this introduction as Part I, Part II tells the history of the passage of Kentucky's new photo ID law for voting, explaining that Republicans initially introduced a very strict measure and showing that the final law is much more reasonable thanks to meaningful amendments during the legislative deliberation. Part III recounts the litigation over the new photo ID bill, which the state implemented in November 2020 during the COVID-19 pandemic. Importantly, the lawsuits did not challenge the law's general features but sought only to delay its implementation. That fact suggests that even opponents did not believe the law would have a huge disenfranchising effect without the added burdens of the pandemic-or at least that they did not think they could win the argument in court. Emergency regulation ultimately eased some of the provisions for the November 2020 election, causing the plaintiffs to drop their suits. Finally, Part IV offers key takeaways from this story, discussed through the legislative theory of deliberative democracy. The Kentucky process mostly worked because even though Republicans had the votes to pass the most stringent law possible, they instead moderated in response to opposition from Democrats and advocacy organizations. That moderation made the process more legitimate and created a better substantive outcome. Part IV also suggests a way to encourage a similar legislative process on voting rights issues: courts might give slightly more deference to a state that passes an election law with indicia of deliberative democracy.

I do not support Kentucky's new photo ID requirement for voting. I do not mean to be an apologist for a law that could make it harder to vote, especially for minorities and other marginalized communities. ^[7] I do not mean to legitimize voter suppression tactics. And I recognize the scourge of racially discriminatory voting laws, both historically and in the present day. But given that the passage of a new law was inevitable, I am generally satisfied with the specific contours of the final version of Kentucky's photo ID law-though the state went too far in trying to implement it so quickly, especially during a pandemic. If Republicans were going to push through a photo ID law for voting no matter what, then the Kentucky law is about as good as it could be. The question, then, is what made the Kentucky process better than the result in other states that have enacted stricter photo ID requirements? The broader lesson is that compromise is possible, even on the most contentious voting rights issues, through a legislative theory of deliberative democracy.

4

II. THE LEGISLATION: A TALE OF SAUSAGE MAKING

Our story begins with a campaign promise to enact a new photo ID law and the election of Kentucky's new secretary of state. It culminates with the passage of the bill during a global pandemic. In the middle, we see a lot of back-and-forth about the details of the law. As Part IV explains, the process mostly exemplifies a form of deliberative democracy, which helped to produce both a better legislative procedure and a stronger substantive outcome.

A. Campaign for Kentucky Secretary of State

Kentucky elected a new secretary of state in 2019, as the prior officeholder, Democrat Alison Lundergan Grimes, was ineligible to run again after serving two terms in office. ^[8] The two major party nominees were Republican Michael G. Adams, an election lawyer and former member of the Kentucky State Board of Elections, and Democrat Heather French Henry, who ran the state's Department of Veterans Affairs and was Miss America 2000. ^[9] Adams won with about fifty-two percent of the vote. ^[10]

Adams's number one campaign promise was to enact a photo ID requirement for Kentucky elections. ^[11] Kentucky's prior law was of the non-photo-ID variety: it required voters to show some documentation of their identity and allowed items without a photograph such as a credit card or Social Security card. ^[12] Poll workers could also verify a...