Requiring Identification to Vote: a Burden on Voters Routinely Upheld by Courts

• Publication year: 2022

52 Creighton L. Rev. 121. REQUIRING IDENTIFICATION TO VOTE: A BURDEN ON VOTERS ROUTINELY UPHELD BY COURTS

REQUIRING IDENTIFICATION TO VOTE: A BURDEN ON VOTERS ROUTINELY UPHELD BY COURTS

JOSIAH J. SHANKS-'20

I. INTRODUCTION

Following the 2016 presidential election, the newly elected President of the United States created a commission to study the issue of voter fraud after claiming massive voter fraud prevented him from winning the popular vote. ^[1] Although a number of states passed laws requiring identification to vote after the 2008 Presidential election, it was not until after the 2016 election that the President claimed there were issues with illegal voting. ^[2] To deter and prevent voter fraud, states passed statutes requiring voter identification. ^[3] These statutes require voters to present some type of identification when voting in person. ^[4] Voters lacking identification must make trips to acquire the documentation needed to vote. ^[5]

When voters have challenged these statutes, courts have not required the states to provide evidence of voter fraud. ^[6] Additionally, in Anderson v. Celebrezze, ^[7] the United States Supreme Court provided a framework to determine when states can enforce regulations restricting access to the ballot. ^[8] In applying this framework, the Supreme Court has upheld a state statute requiring voter identification and determined the resulting burdens imposed on voters by the statute were permissible. ^[9]

This Note will begin by looking at how the Supreme Court has treated voting restrictions created by the states. ^[10] Next, this Note will examine how the United States Circuit Courts of Appeals have applied the Supreme Court's analysis. ^[11] This Note will then examine how the Supreme Court has determined whether a state act has discriminatory intent. ^[12] Then this Note will determine how courts have applied the discriminatory intent framework to voting cases. ^[13] This Note will make the claim that the Supreme Court and United States Circuit Courts of Appeal have improperly valued the state's asserted interests with respect to voting regulations because the asserted interests are nonexistent or could be solved in a way that is less burdensome to voters. ^[14] This Note will then rebut the opposing claim that the states' interests are substantial enough to justify voter identification statutes. ^[15] Then, this Note will assert that courts have improperly weighed the burdens on voters by not properly weighing the time spent in acquiring necessary identification documentation. ^[16] To determine if voter identification statutes should be upheld, courts should use an analysis similar to the analysis used for poll taxes. ^[17] This Note will refute the claim that the poll tax analysis is too harsh by crediting states for their efforts in mitigating the burdens on voters. ^[18] Finally, this Note will argue that when an identifiable political group has been targeted by state regulation, courts should consider the interests of the state by analyzing whether a statute would have been passed without discriminatory intent. ^[19]

II. BACKGROUND

A. STATES CAN IMPOSE SOME REGULATIONS ON THE BALLOT

1. Harper v. Virginia State Board of Elections: The United States Supreme Court Strikes Down Poll Taxes as Unconstitutional

In Harper v. Virginia State Board of Elections, ^[20] the United States Supreme Court concluded that Virginia violated the Equal Protection Clause of the Fourteenth Amendment by conditioning the right to vote on the payment of a fee. ^[21] Prior to Harper, the Virginia Constitution required voters to pay a poll tax in order to vote. ^[22] The representative plaintiff, Annie Harper, was unable to pay the $1.50 poll tax for the three preceding years. ^[23] Virginia residents, including Harper, filed an action against the state board of elections in the United States District Court for the Eastern District of Virginia, alleging that they were deprived of their right to vote strictly due to their poverty. ^[24]

The district court relied on Breedlove v. Suttles ^[25] in dismissing the complaint and the residents appealed. ^[26] The Supreme Court granted certiorari. ^[27] The Court stated that any restraints on voting that were the product of invidious discrimination would be struck down as a violation of the Equal Protection Clause. ^[28] The Court distinguished Harper from Lassiter v. Northampton Election Board , ^[29] in which the Court found a state literacy test to be constitutional. ^[30] The Court reasoned that, unlike the ability to read or write, a poll tax did not promote voters making informed ballot choices. ^[31] The Court concluded that a state violates the Equal Protection Clause whenever it requires the payment of a fee to vote. ^[32] The Court restricted states to setting qualifications based on factors connected with voters' abilities to intelligently cast their ballots. ^[33] Any factors not related to the intelligent use of the ballot, such as wealth or payment of a fee, would be capricious or irrelevant. ^[34]

2. Anderson v. Celebrezze: The Supreme Court Announces a Framework to Determine Which Regulations Can be Imposed

In Anderson v. Celebrezze, ^[35] the Supreme Court created a framework to determine the validity of states' voting regulations. ^[36] During John Anderson's 1980 Presidential campaign, Anderson's supporters submitted a petition to have Anderson be qualified as an independent candidate with 14,500 signatures two months after the deadline and the Ohio Secretary of State refused to accept it. ^[37] Anderson and three supporters filed an action challenging the deadline in the United States District Court for the Southern District of Ohio. ^[38] The district court held that the statutory deadline violated Anderson's First Amendment rights and was not justified by any compelling state interest. ^[39] Ohio appealed, and the United States Court of Appeals for the Sixth Circuit reversed the district court, accepting Ohio's position that the statutory requirement for an early filing deadline served the important state interest of ensuring the Ohio electorate is adequately informed. ^[40] The Sixth Circuit found that the district court erred in requiring Ohio to show a compelling state interest, rather Ohio needed only to show a sufficiently important interest. ^[41] The Sixth Circuit's ruling created a circuit split between the First Circuit and Fourth Circuit; the First Circuit and Fourth Circuit ordered Anderson to be on the ballot and the United States Supreme Court granted certiorari. ^[42] While the statutory deadline affected political candidates, the Court recognized that such laws had some impact on voters. ^[43] The Court also determined that not all state restrictions impose substantial burdens on voters' rights. ^[44] The Court reasoned that there must be substantial regulation of elections to ensure fairness. ^[45] Although these regulations affect voters, the Court reasoned that important state interests generally justify the restrictions. ^[46] The Court recognized it was difficult for a state to justify its interests when a burden is placed on an identifiable political group maintaining a particular political viewpoint or economic status. ^[47] The Court explained there was no easy test to distinguish valid regulations from invalid regulations and articulated a framework to establish the validity of regulations. ^[48] The framework weighs the character and magnitude of the injury against the precise interests used as justification for the burden. ^[49] First, courts identify and evaluate the exact interests used to justify the regulation. ^[50] Next, courts must consider the extent to which those interests necessitate burdening plaintiffs' rights. ^[51]

In Anderson , Ohio asserted three interests for the statutory deadline: voter education, equal treatment, and political stability. ^[52] The Court recognized voter education as a legitimate interest, but determined the statutory deadline did not serve voter education. ^[53] Likewise, the Court found that the statutory deadline did not serve equal treatment. ^[54] Finally, the Court examined Ohio's interest in political stability, which focused on the prevention of intraparty fighting. ^[55] The Court determined that this interest was particularly weak because Ohio could not ensure political stability at the national level. ^[56] Ultimately, the Court determined Ohio's statutory deadline did not outweigh the voters' rights and reversed the judgment of the Sixth Circuit. ^[57]

3. Crawford v. Marion County Election Board: The Supreme Court Upholds a Voter Identification Statute

In Crawford v. Marion County Election Board , ^[58] Indiana voters and the Indiana Democratic Party challenged a state law requiring voters to present photo identification when voting in person. ^[59] The law applied to in-person voting in both primary and general elections, but provisional voting served as a safeguard for voters that could not present valid identification. ^[60] The Court noted that Indiana provided free photo identification. ^[61]

William Crawford brought suit in the United States District Court for the Southern District of Indiana and alleged the new law burdened the right to vote in violation of the Fourteenth Amendment. ^[62] Crawford also asserted that Indiana's voter identification law would not prevent voter fraud and would arbitrarily discriminate against...