Voter ID in the States: Possible Obstacles Post-Shelby

By Karen Shanton

Within hours of the U.S. Supreme Court’s ruling in Shelby County v. Holder, five states that were previously covered (in part or in full) by Section 5 of the Voting Rights Act (VRA) announced plans to proceed with pending voter ID legislation.

In North Carolina, the chair of the Senate Rules Committee said that his chamber would take up an ID bill this week. Officials in Alabama, Mississippi, Texas and Virginia indicated that they would move forward with implementing pending ID laws. (Another former Section 5 state, South Carolina, had already had its new voter ID law precleared for 2013 before the Court handed down its ruling.)

However, the path to voter ID in these states might not be completely clear. The Court struck down Section 4’s coverage formula in Shelby but left the rest of the VRA intact. That leaves at least three scenarios in which the VRA could continue to pose an obstacle to ID laws:

1. The U.S. Congress revisits Section 4: Though political observers consider it unlikely, Congress could revise the coverage formula in Section 4 to address the Court’s concerns. Because Section 5 was not directly affected by the Court’s ruling, jurisdictions covered by the newly-revised formula would be subject to its preclearance requirement.
2. Action is brought under Section 2: Section 2 of the VRA, which applies to all states, is a general prohibition on discriminatory voting practices and procedures. As has already happened in Texas, ID opponents could bring challenges to voter ID legislation under Section 2.
3. Jurisdictions are ‘bailed in’ under Section 3: Under Section 3 of the VRA, jurisdictions that are found to violate the Fourteenth or Fifteenth Amendment of the U.S. Constitution can be ‘bailed in’ to federal oversight. Once bailed in, a jurisdiction must seek preclearance for specified types of election law changes until a specified sunset date.

There’s also another possible obstacle to ID laws: the state constitution.

State constitutions typically have equal protection and due process clauses that parallel clauses in the Fourteenth Amendment of the U.S. Constitution. Many also provide robust protections for the franchise, up to and including an affirmative guarantee of the right to vote.

These types of provisions have formed the basis for legal scrutiny of voter ID laws in eight states (Georgia, Indiana, Kansas, Michigan, Missouri, Pennsylvania, Tennessee and Wisconsin 1, 2) – and could prompt similar suits in some of the former Section 5 states.

The prospects for such challenges depend on a number of variables, including the:

• Wording of the state constitution: A state constitutional challenge based on the right to vote succeeded in Missouri, where the constitution explicitly guards the franchise, but was rejected in Michigan, which offers more indirect protection of political rights. As this suggests, state constitutional challenges will fare better in states with robust constitutional guarantees of equal protection under the law, due process and/or suffrage than states with weaker constitutional safeguards.
• State courts’ approach to constitutional analysis: State courts have three options for interpreting constitutional provisions about individual rights: (1) a lockstep approach that yokes state law to federal law, (2) a primacy approach that prioritizes state law and (3) an interstitial approach that starts with federal law then checks state law for more expansive protections. Given the U.S. Supreme Court’s 2008 ruling upholding Indiana’s voter ID law (Crawford v. Marion County Election Board) and the fact that state-level protections for the franchise are often more robust than federal protections, state constitutional challenges to voter ID laws face better odds in courts that take a primacy or interstitial approach.
• Details of the challenged ID law: Some ID laws count expired IDs as acceptable voter identification while others accept only valid IDs. Some permit voters to provide affidavits attesting to their identity instead of an ID card while others don’t. Laws with greater flexibility are more likely than restrictive laws to survive legal scrutiny.
• Evidence for a constitutional violation: At the end of May, a Wisconsin appellate court lifted a lower court’s injunction on the state’s voter ID law. However, the court hinted that the outcome might have been different if the plaintiffs had made a more persuasive case that the law would be unreasonably burdensome. This illustrates the important, if unsurprising, point that a strong evidential record will bolster plaintiffs’ chances.

The right combination of these variables has to be in place for a state constitutional challenge to win out so state constitutional suits are far from guaranteed to succeed. Still, they provide ID opponents with an additional possible avenue for action–and ID supporters with another possible obstacle. So, as they map out their moves post-Shelby, strategists on both sides of this debate may want to take a closer look at their state constitutions.

Karen Shanton is a legislative studies specialist at NCSL and a public fellow of the American Council of Learned Societies.