Photo identification at the ballot: election protection or voter suppression?

• Author: Milford, Sean

1. INTRODUCTION

   Voting is one of the most basic rights protected by the Missouri Constitution (1) and it is the most direct way in which citizens interact with their government. Because of its vital importance, it is necessary to ensure that fraudulent voting does not take place. Ensuring that a voter is who she says she is is essential to the democratic process, but should be done in a way that does not overburden the fundamental right of voting.

   By requiring that all voters present specific forms of photo identification in order to receive a ballot, bills introduced in the Missouri House of Representatives and Senate during the 2014 Legislative session would do just that. These proposed laws are misguided attempts to correct non-existent but perceived threats of voter fraud and would harm the integrity of elections in the state by making it extremely difficult for large numbers of Missourians to exercise their right to vote. This Note discusses the history of these photo identification laws in Missouri and other states and demonstrates that these laws are not good-faith efforts to prevent voter fraud, but rather are politically motivated attempts to affect the outcome of elections by making it more difficult for certain people to vote. Part II of this Note discusses the current state of voter identification laws in Missouri, a recent failed attempt to amend these laws, and a challenge to a strict voter identification law in Indiana that reached the Supreme Court. Part III discusses bills introduced in Missouri during the 2014 legislative session that would amend the state's voter identification laws, while Part IV argues that such attempts should be rejected in the future.

2. LEGAL BACKGROUND

   1. Voter ID in Missouri

      The Missouri Constitution provides robust protection of the right of the state's citizens to vote in elections. Article 1, Section 25 of the Missouri Constitution provides that "all elections shall be free and open; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." (2) The Missouri Constitution additionally provides a list of the qualifications necessary to vote in Missouri: "All citizens of the United States ... over the age of eighteen who are residents of this state and of the political subdivision in which they offer to vote are entitled to vote in all elections by the people, if ... they are registered within the time prescribed by law.'" These explicit guarantees establish that the right to vote is fundamental to the citizens of Missouri. (4)

      Because of its express protections of the right of Missourians to vote, the Missouri Constitution is distinguished from the U.S. Constitution, which does not provide the same express protections on voting rights. (5) Under federal law, the right to vote in state elections is conferred only by implication. (6) The Missouri Constitution, however, establishes voting as a fundamental right and provides greater protection of this right than does the U. S. Constitution. (7)

      Currently, there are thirty-four states that have passed some form of voter identification ("voter ID") laws. (8) These laws vary from state to state, but can be grouped into broad categories based on two main distinctions: strict versus non-strict laws and photo versus non-photo requirements. (9) In states with "strict" voter ID laws, a potential voter may not receive a ballot unless they first present an acceptable form of identification. (10) If they do not have an acceptable form of identification, they are given a provisional ballot that will not be counted unless the voter returns to election officials within a short period of time after the election and provides the acceptable identification. (11) In states without "strict" voter ID laws, there may be other ways for a potential voter without the required identification to receive a regular ballot, such as signing an affidavit of identity or having a poll worker vouch for their identity. (12) States that require voters to present a form of photo identification may fall within either the "strict" or "non-strict" categories, based on the distinctions outlined above. (13)

      In Missouri, the current voter ID law would fall under the "non-strict" and "non-photo" category of voter ID laws. (14) Under current Missouri law, there are four acceptable forms of identification accepted at the polls: (1) identification issued by the federal government, State of Missouri, an agency of the state, or a local election authority; (2) identification issued by a Missouri institution (public or private) of higher education, including a university, college, vocational, or technical school; (3) a copy of a current utility bill, bank statement, paycheck, government check, or other government document that contains the name and address of the voter; or (4) a driver's license or state identification card issued by another state. (15) If a voter does not possess any of these forms of identification, that voter may still cast a regular ballot if two supervising election judges, one from each major political party, attest that they know the person. (16)

      Throughout the years, attempts have been made to expand Missouri's voter ID laws, usually by limiting the acceptable forms of identification or requiring that all voters present a form of state or government-issued photo identification to receive a ballot. (17) A particularly notable attempt to modify Missouri's voter ID laws was Senate Bill 1014 ("SB 1014") in 2006. SB 1014 would have modified Missouri Revised Statutes Section 145.427 such that the only acceptable forms of identification for voters in Missouri would be a Missouri driver's license, a Missouri non-driver's license, or some other form of photo identification with an expiration date issued by the United States or State of Missouri. (18) Additionally, a voter lacking the proper photo identification would have no other way to vote with a regular ballot and would be forced to vote with a provisional ballot. (19) This modification would have placed Missouri firmly in the "strict" category of voter ID laws.

      SB 1014 passed the General Assembly and was signed by Governor Matt Blunt, but was faced with a court challenge before it could be implemented. (20) In Weinschenk v. State, the Supreme Court of Missouri reviewed the constitutionality of SB 1014, ultimately determining that the bill was unconstitutional and striking down its modifications to Missouri's voter ID laws. (21) The plaintiff in this case, Kathleen Weinschenk, challenged the law on the grounds that it violated both the U.S. and Missouri Constitutions. (22)

      In Weinschenk, the court first determined that the right to vote, as protected by both the U.S. and Missouri Constitutions, is a fundamental right. (23) In so holding, the court noted that the Missouri Constitution provides more protection of the right to vote than does the U.S. Constitution. (24) The court next found that the requirement of photo identification to vote burdened the fundamental right to vote to which every citizen of Missouri was entitled. (25) In determining the extent of the burden imposed by the photo identification requirement, the court stressed that the law essentially imposed a cost on voting. (26) While the state would provide the required photo identification for free to citizens who did not possess one, there remained the associated cost of the documents necessary to obtain a driver's license or passport. (27) A birth certificate, the court noted, would cost at least $15 to obtain, not an insignificant amount for many citizens. (28) The court cited Harper v. Virginia State Board of Elections, and stated that Harper made clear that "all fees that impose financial burdens on eligible citizens' right to vote ... are impermissible under federal law. There can be no lesser requirement under Missouri law." (29)

      In addition to the cost of obtaining the required photo identification, the court noted that someone who lacked the proper identification would have to undertake substantial planning far ahead of an election to acquire the proper identification. (30) It takes anywhere from six to eight weeks to obtain a Missouri birth certificate, on top of the time it takes to obtain the proper identification once the birth certificate is acquired. (31) The court concluded that the cost and time required to obtain photo identification for the estimated three to four percent of the population that did not already possess one imposed a "heavy and substantial burden on Missourians' free exercise of the right of suffrage." (32)

      After determining that the photo identification requirement imposed a substantial burden on Missourians' right to vote, the court considered which level of scrutiny to apply to the statute. (33) The court noted that, if a regulation places a heavy burden on the fundamental right to vote, "our constitution requires that [the regulation] be subject to strict scrutiny." (34)

      The court then moved to the question of whether the photo identification requirement served a compelling state interest and was narrowly tailored to accomplish that interest. (35) The court found that, while Missouri had a compelling interest in ensuring the integrity of the election process and preventing voter fraud, the photo identification requirement was not narrowly tailored to serve this interest. (36)...