By Staff Writer

With the Supreme Court recently issuing a flurry of orders and stays on the implementation of certain states’ voter ID laws—allowing some to be in effect for the 2014 midterms, but blocking another—there has been no shortage of attention on voting rights developments. While states, such as Texas and North Carolina, are often criticized for having some of the strictest voter ID laws in the country, little scrutiny has been placed on another state’s voter ID requirement that is arguably just as burdensome and theoretically more primed for a constitutional challenge: Tennessee.

Despite receiving scant attention from the national media, a recently released study by the U.S. Government Accountability Office found that Tennessee’s three-year old voter ID law has deterred voter turnout, notably among younger voters. According to U.S. Rep. Jim Cooper (D-Tenn.), the report proves that the state’s voter ID law unfairly suppresses Tennessee residents’ voting rights. The GAO study found that turnout among eligible and registered voters declined between 2008 and 2012 by an estimated 2.2 to 3.2 percent more than in states that did not make their voter ID laws stricter. In other words, there were roughly 88,000 Tennesseans who likely would have voted if the new law had not been in place. These findings appear to confirm why analysts consistently classify Tennessee’s voter ID law as “strict.” Indeed, the state’s voter ID requirement has long been included on lists of the most stringent voter ID laws in the country, due in no small part to the fact that it expressly excludes student IDs from the list of acceptable forms of voter ID, yet allows voters to gain access to the polls by showing their gun permit. Despite attempts to pass legislation that would allow students to use their school ID for voting purposes (a practice followed by a majority of states with voter ID laws), the Tennessee Senate’s State and Local Committee voted along party lines to reject such a bill.

So why should voting rights activists take notice of Tennessee’s voter ID law? For starters, it has been in effect for three-years—a relatively substantial amount of time for voter ID laws— including during a presidential election cycle. Combined with the GAO’s recent findings, there are significant quantitative conclusions that indicate Tennessee’s voter ID law has an adverse effect on some citizens’ ability to cast a ballot. When the Supreme Court upheld Indiana’s voter ID law in 2008, a significant factor was the absence of hard evidence showing how the law suppressed poor and minority voters. With the GAO report, challengers to Tennessee’s voter ID law have clear, straightforward facts that demonstrate how the law suppresses voter turnout.

While the available factual record on the effect of Tennessee’s voter ID law is more substantial than in many other states, there is a second hook that potentially exposes Tennessee’s voter ID requirement to a formidable challenge: its express rejection of all student IDs. Recently in North Carolina—a state that also has a “strict” voter ID law that will not accept student IDs when it takes effect in 2016— challengers brought a “novel” Twenty-Sixth Amendment claim against the state’s Voter Identification Verification Act. The Twenty-Sixth Amendment lowered the voting age to 18 and has rarely been the subject of lawsuits since its ratification in 1971. Although North Carolina’s controversial voter ID requirement will not take effect until 2016, this lawsuit may nevertheless determine the fate of Tennessee’s voter ID requirement because the Tennessee law is uniquely susceptible to this “novel” Twenty-Sixth Amendment challenge.

From a textual perspective, Tennessee’s voter ID law is distinctive in that it does not exclude student IDs by silence— it explicitly wrote this exclusion into the statutory language. Whereas North Carolina and Texas passively disqualified student IDs by not including them on its list of permissible forms of voter ID, Tennessee legislators took the extra step of affirmatively asserting the impermissibility of student IDs into the statute. Moreover, this prohibition applies to public universities, despite the fact that any other valid identification card issued by the state of Tennessee is acceptable. Finally, and perhaps most egregiously, while student IDs at public universities are not deemed satisfactory for voting purposes, faculty member IDs from these same institutions satisfy the voter ID requirement. As noted by Hedy Weinberg, Executive Director of the ACLU in Tennessee, this ban on student IDs “makes it really obvious that the goal is to suppress the students’ access to the ballots.”

Tennessee is home to an extensive public university system. The Tennessee Board of Regents oversees public institutions that instruct over 200,000 students, which does not even include the nearly 30,000 students enrolled at the University of Tennessee. As noted by State Senator Jim Kyle (D), college students are among the least likely citizens to have a driver’s license, which is the most common form of voter ID. By expressly excluding student IDs while allowing faculty to use university-issued employee IDs for voting purposes, the Tennessee legislature seems to be motivated by some discriminatory purpose against younger voters. Is the all-but-forgotten Twenty-Sixth Amendment the key to striking down such a strict voter ID requirement? If so, there is little doubt that Tennessee’s voter ID law is ripe for a challenge.

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