The Hard Power of 'Soft' Voter-ID Laws

States are passing special measures to head off attacks on the constitutionality of strict voter-identification requirements. But such measures are often just as disenfranchising as the laws they shield.

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A recent lawsuit accuses the state of Wisconsin of disenfranchising an eligible voter who had lost the use of her hands, because she could not sign a government document to get a voter ID. Another voter, who was born in a German concentration camp and could not produce a birth certificate, had to go to extraordinary lengths at the state’s Department of Motor Vehicles in order to vote. Strict state voter-identification laws are proving disconcerting on the ground. So why are the courts bending over backward to uphold them?

In 2014, the Wisconsin Supreme Court considered whether Wisconsin’s stringent voter-ID law violated the Wisconsin constitution’s right to vote. The court found that the law would impose severe burdens on voters who could not afford to pay for underlying documents, like an out-of-state birth certificate, to prove identification, and on those voters who, through no fault of their own, could not establish their identity under the exacting rules established by the state.

To save the Wisconsin voter-ID law from being declared unconstitutional, however, the state’s supreme court, dominated by conservatives, engaged in a creative reading of Wisconsin law—one that essentially compels the state’s Department of Motor Vehicles to help these voters prove their identity and get ID cards. Wisconsin regulations require “officials to get birth certificates (or other qualifying documents) themselves for persons who ask for that accommodation on the basis of hardship.” Imagine relying on the DMV for such an accommodation. Nevertheless, not only did this saving construction sink the state challenge, but the federal courts relied on it to reject a challenge to Wisconsin’s law that was based on the federal Constitution and the Voting Rights Act.

Wisconsin is not alone in seeing a theoretical “softening” of voter-ID laws as a means of blunting legal attacks on their ultimate validity. In a 2008 case, Crawford v. Marion County Election Board, the U.S. Supreme Court rejected an overall (or “facial”) challenge to Indiana’s tough voter-ID law, but it left the door open for so-called “as applied” challenges from voters who face special burdens obtaining IDs. South Carolina, in the face of a federal lawsuit against its strict voter-ID law, adopted a special rule allowing voters who face a “reasonable impediment” to acquiring a voter-ID card to nonetheless be able to vote. Here’s how it works in South Carolina: A person must show their non-photo voter-ID card, sign an affidavit detailing the reasonable impediment, and then have that notarized—all at the polling place. On the eve of trial in a lawsuit challenging North Carolina’s rigid voter-ID law, the state adopted a similar “reasonable-impediment” exemption to its voter-ID law. A federal court recently cited that exemption to deny the NAACP a motion to stop North Carolina from using its voter-ID law until the legality of it was fully hashed out in court.

While issuing exemptions and softening voter-ID laws sounds like a solution to overly harsh voter-ID laws in theory, it is not working out so well in practice. Despite the Supreme Court’s suggestion in Crawford, there have been few attempts to bring “as applied” challenges to voter-ID laws because these as-applied cases are expensive to litigate and help only a few voters at a time. According to the nonprofit One Wisconsin Now, the state’s DMV has created such a draconian bureaucratic voter-ID exemption process that many voters simply give up in anger and frustration. Analyzing DMV data, One Wisconsin Now’s February 29 lawsuit makes a number of accusations against the DMV, including the complaints from the woman who lost the use of her hands—and who “even provided her daughter with power of attorney giving her permission to sign, but the DMV did not allow it”—and the senior citizen who had been born in a German concentration camp and didn’t have a birth certificate. The suit also asserts that others who tried to get an exemption were turned down over “minor discrepancies in the spelling of their names or uncertainties about their exact dates of birth—even though DMV acknowledges it has no doubts these disenfranchised voters are U.S. citizens.”

Things are bad in South Carolina, too. There, elected officials do little to publicize the voter-ID reasonable-impediment exemption. A report by Think Progress noted that South Carolina’s voter-information program barely mentions the reasonable-impediment exemption in voter information—and then only in fine print—and the governor has incorrectly stated that voters must have photographic identification in order to be allowed to vote. Many voters don’t even know what an “impediment” is, let alone how to take advantage of the exemption. In response to the Think Progress report, the South Carolina Election Commission tweeted out a “clarification”—with erroneous information. The commission stated that if a voter does not bring the right photographic identification to the polls, “you’ll have to show it later for your vote to count.” But this is not true for voters who take advantage of the reasonable-impediment exemption. Only after being publicly challenged did the state then correct this misinformation in a follow-up tweet.

This raises another problem with voter-ID softenings: election-administrator and poll-worker error. In Texas, state law requires poll workers to accept identification from voters whose names on the rolls are “substantially similar” to those on a photographic ID but MSNBC reported that:

A strict interpretation of the law ended up disenfranchising Taylor Thompson, a student at Texas State University in San Marcos. Thompson’s name on the voter registration card she received in the mail was incorrectly spelled “Tayllor Megan Rose Thompson.” Because it didn’t match her name on her photo ID, which is “Taylor Megon-Rose Thompson,” she was barred from voting.

The law required Texas election officials to accept her voter ID since, by any measure, it was “substantially similar” to her photo ID. Failing that, the law also required Texas election officials to offer Thompson a provisional ballot. They did neither.

For those facing difficulty voting, the onus of proof, administrative glitches, and worker error make voter-ID softening devices nothing more than weak attempts to deal with the original harshness of voter-ID laws. Further, these laws suck up voting-rights groups’ resources, sometimes quite significantly, which they use to fight for individual rights. They are also expensive for states and local governments to administer. A proposed Missouri voter-ID law is estimated to cost $17 million in its first three years. Meanwhile, the process of getting an acceptable ID remains onerous for some voters. And each fight threatens to disenfranchise a voter who cannot put up with the administrative hassle or worse.

It is hard to quantify just how many people are deterred from voting because of strict voter-ID laws or how many of those would have been able to take advantage of a softening device or exemption. But that’s not the point. A focus on aggregate numbers puts the emphasis in the wrong place, away from individual voters’ rights and dignity and away from the naked partisan efforts to discourage those voters. What courts should be asking is: Why is it constitutional to put new roadblocks in front of voters without adequate justification?

Given that any evidence of such laws preventing impersonation fraud or instilling voter confidence is essentially nonexistent, courts should stop trying to soften voter-ID laws and start striking them outright. Not because they will or won’t affect election outcomes, but because protecting each eligible voter’s right to vote is what’s paramount—not whether or not they have hands to sign the correct documents.

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