By Karen Shantonmy recent post on state constitutional challenges to voter ID laws, ElectionSmith's Dan Smith raised an interesting question: Which states would require a constitutional amendment to enact a photo voter ID requirement?
The answer to this question depends a bit on what we mean by 'require.' Consider the following pair of cases:
- In 2006, the Missouri General Assembly passed a photo voter ID law but the state Supreme Court struck it down as unconstitutional. The General Assembly tried (ultimately unsuccessfully) to supersede this ruling by putting a photo ID requirement on the ballot as a constitutional amendment.
- In 2011, the Minnesota Legislature passed a photo voter ID bill but Governor Mark Dayton vetoed it. In an (ultimately unsuccessful) effort to sidestep the veto, the Legislature sent the ID requirement to the 2012 ballot as a constitutional amendment.
Arguably, both of these are cases in which a constitutional amendment would be required to enact a photo ID requirement. After all, in both, the route to enacting the requirement as a statute is blocked.
However, the nature of the obstacle in each case is different. In Missouri, the obstacle is legal. Once Missouri's ID requirement was found unconstitutional, it couldn't be enacted as a statute (at least, not in its existing form); the General Assembly couldn't simply re-pass the same bill. Even if the governor and legislature both overwhelmingly favored the ID requirement, they couldn't enact it without a change to the state constitution.
In Minnesota, on the other hand, the obstacle is political. The 2012 voter ID amendment was an effort to clear the political hurdle of the governor's veto. If ID supporters in the Legislature had had the numbers to override the veto (or the governor had changed his mind), the subject of a constitutional amendment might never have come up.
So, there are a couple of ways to interpret the question we started with. One is as a question about legal necessity: Which states would legally require a constitutional amendment to enact a photo voter ID amendment? As of this writing, Missouri is the only state that has struck down a photo voter ID requirement under the state constitution in a court of final jurisdiction. But state constitutional challenges to ID laws are pending in Kansas, Pennsylvania, Tennessee and Wisconsin (1,2). If any of these challenges succeeds, an amendment will presumably be legally required for the state to enact the challenged requirement. And the state will join Missouri on the list of answers to the first question.
Another way to read the question is as a question about political necessity: Which states would politically require a constitutional amendment to enact a photo voter ID amendment? Here, the answer isn't quite as easy to pin down. Political obstacles can come and go with shifts in the political landscape–and the political necessity of a constitutional amendment can come and go with them. Take, for example, the case of North Carolina. Former North Carolina Governor Bev Perdue vetoed an ID bill when she was in office. Her successor, Governor Pat McCrory, on the other hand, supports photo voter ID and is expected to sign an ID bill if it reaches his desk. The changeover in the North Carolina governor's mansion likely eliminated the veto threat to the photo ID requirement and, with it, the political need for an amendment.
Similar changes–or even just changes of heart–in the governor's mansion or legislature could similarly eliminate (or create) political obstacles to photo ID in other states. So, unlike the answer to the first, legal version of the question, the answer to this second, political version depends pretty directly on turns in the political tides.