Does the Constitution Give Americans the Right to Vote Without Photo Identification?
In 2005, the State of Indiana passed a state law requiring that most Indiana voters who voted on Election Day would have to show government-issued photo ID before voting. The law provided an exception for those who lived in senior centers, and provided an alternate method of voting if you lost, forgot, or could not afford to get a photo ID. Note: The law also provided free state photo ID’s to those who did not already possess an Indiana driver’s license.
The Indiana Democratic Party, along with Democrat legislators and supporters, filed suit arguing that the law would result in fewer people voting, and violated an individual’s right to vote under the United States Constitution. The suit also argued that voter ID laws are “neither a necessary nor appropriate method of avoiding election fraud”.
In 2008, the U.S. Supreme Court heard the case Crawford v. Marion County Election Board. The case was named for Indiana State Representative William Crawford, the lead Democrat legislator who challenged the law, and election officials in Marion County, Indiana (named after Revolutionary War Hero Francis Marion, “The Swamp Fox”). The case dealt with whether or not the 14th Amendment to the Constitution protects a right to vote without showing photo identification.
As sometimes happens, the Supreme Court decided the case, but offered no majority opinion to explain its decision. While six justices agreed that there was nothing in the Indiana Law that violated the Constitution, the six were evenly split on whether or not to maintain previous court precedent, or whether to change it.
Those filing the lawsuit wanted the Court to declare that the law was discriminatory against those who did not possess ID. Under the Indiana law, individuals without ID would have to either go out and get ID or later visit the clerk’s office and sign an affidavit verifying their identity and that they could not afford to get an ID. But as the law applied equally to all voters in Indiana, the Supreme Court did not find the law to be discriminatory. Another question was whether the photo ID requirement was merely an “inconvenience” or whether it actually violated an individual’s right to vote.
Those who opposed the law sought to draw parallels between the requirement of having ID, and having to pay a special tax before you could vote. In a 1966 case, the Supreme Court explained that the Constitution prevents a state from requiring a tax or fee in order to vote, even the nominal fee of only $1.50 that Virginia had required to discourage apathetic individuals from voting. Because such a fee did not relate to the voter’s actual qualifications, the Supreme Court explained that it violated an individual’s right to vote, no matter how low the fee was.
Photo identification, however, does relate to a voter’s qualifications. Namely, it relates to the person actually being who they say they are and being qualified to vote. The State of Indiana argued that requiring photo ID helped the state run efficient elections, helped limit election fraud, and helped maintain public confidence in the election process, thereby encouraging citizen participation in the democratic process.
Another important consideration raised by several of the justices was Art. I, § 4 of the Constitution, which provides that:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…”
While Congress is empowered to make laws concerning federal elections, rather than putting election procedures directly into the Constitution, the Founders instead chose to defer to the election procedures put in place by the states. One of the benefits of recognizing state authority over state elections is that it limits the need for the Supreme Court to weigh in on what are essentially political questions that should be resolved through the political process.
Laws that relate to elections, even good laws, will likely have at least some effect on the outcome of those elections. Political parties can be expected to line up behind laws that are likely to help them in the next election and to line up in opposition to laws that may help their opponents. Every Republican legislator in Indiana voted in favor of the photo ID law and every Democrat legislator voted against it. Though the law applied equally to all voters in Indiana, the partisan undertones to the issue were very real.
In Crawford v. Marion County Election Board, the Supreme Court explained that just because partisan motivations contributed to the passage of a law is no reason to declare that law unconstitutional. The more important question to ask is whether a law that inconveniences voters is supported by valid, neutral reasons. In this case, the justification provided by the State of Indiana (efficient elections where fraud is discouraged and citizens are encouraged to participate in the democratic process), was more than enough to outweigh concerns that some individuals could find it more difficult to vote, or that the law might impact the success of one political party over another.
Crawford v. Marion County Election Board (2008) Supreme Court Decision: https://www.law.cornell.edu/supremecourt/text/07-21
The Honorable David Eastman is a graduate of West Point and a former Captain in the U.S. Army. He has served at each level of U.S. government; city, county, borough, state and federal, and in each case was obliged to take an oath to support and defend the U.S. Constitution; He currently serves as a firefighter in Alaska and as a State Representative in the Alaska House of Representatives; He and his family live in Wasilla, Alaska.