Earlier this month, a federal trial judge upheld Alabama’s voter ID law against constitutional and statutory challenge. The case is on appeal.
The 14th Amendment to the U.S. Constitution guarantees equal protection of the law. The 15th Amendment says the right to vote shall not be denied on account of race.
State voter ID laws have survived most such challenges since the Supreme Court upheld Indiana’s statute in 2008. [Crawford v. Marion County] There was no majority opinion in that case. Three Justices applied a balancing test, finding in Indiana’s case that any burden the ID requirement placed on the right to vote was outweighed by the state’s interest in preventing voter fraud. In dissent, Justice Souter said there was no evidence of voter fraud in the record that photo ID could have fixed.
Perhaps this is why the judge in the Alabama case this month went out of his way to list several types of voter fraud that had occurred in the state over time, even though the Supreme Court in 2008 did not require any evidence of fraud. [District Court opinion, p. 55] These include pressuring nursing home patients [more on that subject here] and the bulk mailing of hundreds of absentee ballots at a time. One of Alabama’s requirements is to include a copy of a photo ID with every absentee ballot cast.
The judge also emphasized how easy it is to get a photo ID. Almost everybody has one. Anybody can get one with little effort and no cost. There is no discrimination because everyone has the same opportunity to get an ID, the judge reasoned. Alabama even has a mobile ID unit that goes out to every county providing free IDs.
The NAACP and other plaintiffs argued that voter ID laws are discriminatory because they have a disparate impact on minority voters. Fewer such voters have IDs and it’s harder for them to get an ID. Thus, voter ID laws suppress the minority vote, the plaintiffs argued.
The case for voter suppression is pretty thin. While there are some studies that find minute differences for minority voters, the studies as a whole are inconclusive. Also, studies finding voter suppression have been criticized as biased and flawed. Moreover, minority turnout actually INCREASED in at least three states after voter ID laws were passed, including Wisconsin where the vote in heavily black Milwaukee nearly doubled.
There are voter ID laws in more than a dozen states, and most of them have been upheld. But not always. Change the facts and the case can go the other way, like in North Carolina where a court found evidence that the state legislature had intentionally discriminated against minorities, targeting black voters “with almost surgical precision,” in the court’s words.
The judge in the Alabama case cited precedent to the effect that disparate impact alone is not enough to find a statute unconstitutional. “Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” [citing precedent at p. 40] That proof existed in North Carolina. There, the legislature asked for data on several voting practices by race, then crafted a law that, among other things, excluded many of the types of photo IDs typically used by black voters while retaining the types more commonly used by white voters. [opinion at pp. 56-58]
Barring that kind of proof, though, voter ID laws will generally be upheld. The whole voter suppression narrative is based on the racist premise that minorities are too stupid to figure all this out. Ami Horowitz posted a great video in 2016 where he asked blacks on the street in East Harlem if they had ID or would have any problem presenting ID to vote. Their reactions said it all, with many of the respondents expressing surprise anybody would even ask such questions. When I wrote about this at the time, a friend reported back to me that the video was shown to minorities waiting in line to vote in Colorado and they were offended, as well they should be, because now they know what Progressives really think of them.