Show Me Your ID: Missouri Voter Identification Laws and the Right to Vote.

• Author: Ludwig, Tyler M.

Priorities USA v. State, 591 S.W.3d 448 (Mo. 2020) (en banc).

1. INTRODUCTION

   Nearly fifteen years ago, the Supreme Court of Missouri held that "the right to vote is fundamental to Missouri citizens" and is afforded protections against voter identification requirements beyond what is provided by the United States Constitution. (1) Since that time, state lawmakers have made numerous attempts to impose more stringent voter identification requirements. (2) In Priorities USA v. State, the Supreme Court of Missouri struck down the latest of those attempts for unconstitutionally infringing upon the right to vote. (3) Part II of this Note examines the facts and holding of that case. Part III examines the history, critiques, and challenges of voter identification ("ID") laws both in Missouri and nationwide. Part IV analyzes the legal reasoning behind both the majority and dissenting opinions in Priorities USA. Finally, Part V of this Note then examines the future of voter ID requirements in Missouri and argues that ongoing attempts to impose tightened requirements have the potential to do harm to Missouri voters without providing any clear benefits.

2. FACTS AND HOLDING

   In 2016, Missouri voters passed a constitutional amendment allowing the state legislature to create requirements, including using photo IDs, for voters to identify themselves at the polling place. (4) The Missouri legislature subsequently passed Missouri Revised Statutes Section 115.427, establishing new requirements for Missouri voters to identify themselves in order to cast a ballot in public elections. (5) The law, which became effective in 2017, provides three options for voters. (6)

   The first option allows voters to present an acceptable form of personal identification, as set forth by the statute. (7) The statute expressly allows for the use of a nonexpired Missouri driver's license or of a nonexpired or nonexpiring Missouri nondriver's license. (8) The statute also allows for the use of any other form of identification issued by the state or federal government that includes the name of the individual to whom the document was issued, (9) a photograph of the individual, and an expiration date. (10)

   The second option allows voters who lack a statutorily acceptable form of personal identification, but are otherwise qualified to vote, to cast a ballot if they do two things. (11) First, they must present a form of non-photo identification as specified by the statute, such as a current utility bill or bank statement or some type of Missouri student ID. (12) Next they must execute a statutorily specified affidavit. (13) The affidavit requires the individual to aver that they are the person listed in the precinct register, that they do not possess a form of personal identification, that they are eligible to receive a Missouri non-driver's license free of charge, and that they are required to present a form of personal identification to vote. (14)

   The third option allows voters who choose not to execute the aforementioned affidavit to cast a provisional ballot. (15) This ballot will be counted if either the voter returns to the polling place during the polling hours and provides an approved form of photo identification. (16) Alternatively, the ballot will also be counted if the election authority compares the individual's signature with the signature reflected on the election authority's file and confirms the individual is eligible to vote at that particular polling place. (17)

   Priorities, USA, an organization which promotes voting rights, (18) and West County Community Action Network, an organization which advocates for racial justice, (19) filed a petition for declaratory and injunctive relief against Missouri's Secretary of State. (20) They alleged that the new voter identification requirements restrict the right to vote in violation of the Missouri Constitution by imposing burdens on prospective voters who face difficulties adhering to the requirements. (21) After a bench trial, the Cole County Circuit Court found that the law was constitutional, except for the affidavit provision. (22) The circuit court found that the affidavit requirement impermissibly infringed on an individual's right to vote because it was contradictory and misleading. (23) Consequently, the circuit court enjoined the State from requiring individuals who chose to vote under the second option to execute the affidavit as proscribed by the statute. (24) Additionally, the circuit court enjoined the State from disseminating materials indicating that photo identification is required to vote. (25) The State appealed the circuit court's order to the Supreme Court of Missouri, which affirmed the circuit court's decision. (26)

3. LEGAL BACKGROUND

   Thirty-six states now have laws requesting or requiring voters to show some form of identification at the polls, thirty-five of which were effective for the 2020 election. (27) The specific requirements of these laws vary from state to state but can be grouped by two main distinctions: photo versus non-photo requirements and "strict" versus "non-strict" laws. (28) While some states accept only government issued photo IDs as proper identification to vote, other states accept more "relaxed" forms of identification, such as a bank statement or utility bill. (29) Under "strict" voter ID laws, voters who lack the required identification will be provided a provisional ballot that will only be counted if they return with proper identification. (30) In contrast, "non-strict" laws provide other ways for voters 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. (31)

   These laws have been the subject of much public debate. (32) Proponents of voter ID laws advocate for their use as necessary for combatting voter fraud. (33) However, the type of voter fraud intended to be prevented by voter ID laws - in-person voter fraud - is exceedingly rare. (34) Former U.S. attorney David Iglesias described voter fraud allegations as "the boogeymen parents use to scare their children... [i]t's very frightening, and it doesn't exist." (35) One notable nationwide study found only thirty-one possible incidents of in-person voter fraud, comprised of approximately 241 fraudulent ballots out of one billion total ballots cast over a period of fourteen years. (36)

   Critics of voter ID laws argue that they make it harder for certain citizens to vote. (37) In particular, strict photo voter ID laws tend to impose a burden on a large number of people, with eleven percent of voting-age citizens lacking necessary photo IDs. (38) Many people who do not already have sufficient IDs may face economic and logistical burdens in obtaining them. (39) For example, even in states that issue free IDs, obtaining the necessary documents to receive an ID - such as a birth certificate - can cost up to twenty-five dollars. (40) This cost has been described by some as "'another form' of poll tax." (41)

   Even those who can bear the costs of obtaining these documents can still face administrative hurdles that seem insurmountable. (42) Elizabeth Gholar moved from Louisiana to Texas after the state implemented a voter ID law and faced difficulties obtaining a proper Texas ID because a midwife had improperly filled out her birth certificate decades earlier. (43) Another Texas resident, Margarito Lara, spent over a decade attempting to get his birth certificate because he had been born at home with no record of his birth. (44) Even individuals with the necessary documentation can face barriers when trying to actually obtain an ID. (45) One individual in Alabama stated that her nearest DMV is open only one day per month and that she lacked public transportation to make the forty-mile roundtrip to the next closest DMV. (46)

   Many critics also argue that strict voter ID laws have a discriminatory effect. (47) Former Attorney General Eric Holder, Representative John Lewis, and others have drawn comparisons between voter ID laws and traditional attempts to suppress black voters, such as poll taxes. (48) Some commentators have argued that strict voter ID requirements reduce turnout among poor, black, elderly, disabled, and minority-language voters who are more likely to lack the type of identification required by the laws. (49) "Nationally, up to 25% of African-American citizens of voting age lack government-issued photo ID, compared to only 8% of whites." (50) One 2018 study also found that 57% of transgender people who have transitioned in states with strict voter ID laws may lack necessary identification or documentation accurately reflecting their gender. (51) There have been additional concerns about laws being written in a discriminatory manner, such as allowing voters to use concealed weapons permits but not student IDs. (52) Concerns about the discriminatory intent and impact of these laws are exacerbated by some disturbing comments made by their proponents. Sue Burmeister, who introduced the country's first strict voter ID law in Georgia in 2004, stated, "if there are fewer black voters because of the bill, it will only be because there is less opportunity for fraud" and that "when black voters in her precinct are not paid to vote, they do not go to the polls." (53) Debbie Riddle defended her proposed voter ID bill in Texas by recounting her experience witnessing a Latina woman receiving assistance at a polling place because she could not speak English. (54)

   Additionally, many critics have charged efforts to enact with having partisan motivations. (55) In 2012, one Pennsylvania House Republican stated that the state's recently enacted voter ID law would "allow" Mitt Romney to win the state in that year's presidential election. (56) After the election, the Pennsylvania Republican Party chairman stated his belief that the state's voter ID law had "helped a bit" in lowering President Obama's...