Constitutional Attacks on Voter I.D. Requirements

Now that the Indiana Legislature has passed and the governor signed a voter identification bill, the ACLU has filed suit (complaint here; news story here) against the program.

I am interested in the constitutional argument against such requirements. (The complaint also lists a Voting Rights Act claim, as well as a claim under the Indiana constitution, which I have not had time to investigate.) Here is what the complaint says on the U.S. constitutional claim:

92. Although Senate Enrolled Act No. 483 provides that the Bureau of Motor Vehicles will provide a state identification card without cost, there are costs attendant to obtaining the documents which the Bureau of Motor Vehicles requires in order to obtain the card. This is a de facto poll tax which violates the Equal Protection Clause of the United States Constitution.
93. Regardless of the cost, Senate Enrolled Act No. 483 imposes unreasonable and irrational burdens and requirements on the fundamental right to vote and is unconstitutional as violating the Fourteenth Amendment to the United States Constitution.

Dan Tokaji goes even further in this blog post:

The act does provide that photo ID will be issued without charge by the Indiana Bureau of Motor Vehicles to those who don't have it. But as I've previously explained, requiring voters to stand in one line at the BMV for the privilege of possibly standing in another line once they go to vote effectively imposes a tax on the voters' time. It's a burden that many voters won't bear, which is presumably why the bill was passed on a straight party-line vote: Republican legislators are banking that Democrats are more likely to lack ID and won't go to the trouble of getting it.

My take: While posing as an anti-fraud measure, the Indiana bill is really a naked attempt to disenfranchise voters, and ought to be struck down under the Equal Protection Clause. The Supreme Court hasn't ruled on the constitutionality of such measures before, but the logic of Harper v. Virginia should apply. That case struck down Virginia's poll tax on the ground that it imposed a burden on poor voters. In much the same way, the Indiana bill imposes a special burden on particular groups of voters -- including seniors, people with disabilities, and those who are poor -- with precious little evidence that its strict photo ID requirement is needed to curb fraud.

I think there may be something to the argument in Paragraph 92 of the ACLU complaint. If in fact one cannot obtain the documents needed to get a voter identification without the payment of funds (e.g., for a certified copy of a birth certificate), that seems in effect no different from requiring the payment of money to vote, which the Supreme Court rejected in Harper. Suppose the state offered to pay those fees as well upon proof of indigency, which would be a smart thing for the state to do if it could settle this litigation in the process. Dan's post suggests that voter i.d. would still run afoul of Harper.

I'm very interested in this question, because I've proposed government-issued voter identification coupled with universal voter registration conducted by the government as one of the main ways to avoid election meltdown in the future.

I have some tentative thoughts that I'm putting out here in the hopes of getting some thoughtful reactions. I don't think that Dan is right that simply because there is a value to one's time, the requirement to wait on line to get an i.d. necessary to vote is equal to a poll tax. Harper involved a tangible cost to voters, not the opportunity cost of waiting to vote (or waiting for a voter i.d.) If courts read Harper to apply to opportunity costs, wouldn't the state always commit a constitutional violation any time there was any significant wait at polling places? (Put aside the question of longer lines at polling places in poorer neighborhoods.) Yet surely courts would treat this as a routine election administration rule, not raising any constitutional concerns. (And what of the value of the time of the wealthy professional, whose opportunity cost of waiting on a long line could be substantial?)

Dan also is not focused solely on the poor, but also on other voters who might have difficulty getting to polls, such as the elderly and the disabled. There may be statutory reasons (perhaps under HAVA and the ADA) why reasonable alternatives should be made available, but is this a constitutional right? Consider in this regard McDonald v. Bd. of Election Comm'rs, 394 U.S. 802 (1969), in which the Supreme Court unananimously rejected an equal protection argument brought by inmates of a county jail who challenged Illinois's failure to provide them with absentee ballots. As I note in my book at page 194 note 62, "[i]t appeared significant to the Court that there was 'nothing in the record to support [the] assumption[] that Illinois has in fact precluded [the inmates] from voting' through special polling booths or facilities on Election Day."

So I take the lesson of Harper and McDonald that it is impermissible to impose a tangible cost on people who wish to exercise their right to vote, but that the state may impose intangible costs so long as reasonable accomodations are made to for those voters who would have an exceptionally difficult time casting their ballots.

One other constitutional argument I'm interested in is Robbin Stewart's claim that voter identification constitutes some kind of privacy invasion, perhaps under the First or Fourth amendments. I have not seen any extended analysis of this point, but one is sorely needed. I am curious why the ACLU did not raise such an argument in its complaint.

UPDATE: Here is a separate complaint filed by Indiana Democrats raising similar claims to the ACLU claims. See also this A.P. report.

"On Bloggers and Money"

The Washington Post offers this report, with the subhead: "Some Seek Disclosure Rules for Web Sites Paid by Candidates." I've been one of the (only) public advocates for this position, and readers wanting more background and support can look here, here, and here. One interesting observation from the Post article: "Scott Thomas, the FEC's Democratic chairman, said it has yet to hear from the authors of the 2002 campaign finance reform legislation or any of the prominent watchdog groups on the disclaimer issue. 'We really haven't gotten any of the usual suspects to submit a comment yet,' Thomas said." I think it is no mystery why: an online coalition of left and right bloggers are arrayed against it, and relentless in their opposition to any regulation of the blogosphere.

"Conservative ‘527’ to Air Ads"

Roll Call offers this report (paid subscription required), which begins: "A conservative group launched a $3.3 million campaign to end judicial filibusters Monday, becoming the first activists on the right to fire a multimillion-dollar shot this year in the long-running battle over confirming President Bush’s judges."

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org