By: Jeff Tyler

The Eleventh Circuit recently decided a 2015 lawsuit brought against Alabama’s voter photo ID law. The suit – brought by the Alabama NAACP, Greater Birmingham Ministries, and several individual plaintiffs – challenged Alabama’s requirement that all voters must provide photo ID in order to vote. Alabama’s voter photo ID law passed in 2011 with zero support from black legislators, but did not go into effect until 2014. In its lawsuit, the NAACP claimed that the photo ID requirement, as implemented, violates the Equal Protection clause of the Fourteenth Amendment, the Fifteenth Amendment, and Section 2 of the Voting Rights Act (“VRA,” now codified at 52 U.S.C. § 10301).

The Eleventh Circuit said the plaintiffs failed to show that the Alabama legislature, in passing the race-neutral photo ID requirement, acted with an intent to discriminate on the basis of race. Therefore, the court said the law passes constitutional muster under a Fourteenth and Fifteenth Amendment analysis. The more interesting discussion in the court’s opinion is about whether the law violates Section 2 of the VRA. The VRA was amended in 1982 to allow a plaintiff to prevail by showing that a state voting law results in less opportunity for a racial group to participate in the political process, without having to prove that lawmakers actually intended to discriminate. In other words, under the VRA, a state election law may not deny or abridge the right to vote on account of race.

Alabama’s photo ID law allows many forms of photo ID for voting, including an Alabama driver’s license, any government ID, a U.S. passport, an Alabama student ID card, a U.S. Military ID card, and, of course, an Alabama voter ID card. If a voter does not have a qualifying photo ID, they may take a birth certificate or certain other forms of non-photo ID to their local registrar, where they will be given a photo voter ID. Additionally, the Alabama Secretary of State created a Mobile Unit (“mobile” the adjective, not the Alabama city) that will travel to the home of anyone without transportation options who is requesting a photo voter ID; a photo ID card is then printed at the voter’s home. And even if a registered voter does not have a photo ID on election day, they may cast a provisional ballot which may be made official by bringing a photo ID to an election registrar’s office by the Friday following the election.

The plaintiffs’ primary evidence was that 99% of white voters possess acceptable voter ID, while 98% of black voters do. The plaintiffs framed this discrepancy by arguing that black voters are “twice as likely” as white voters to lack a valid ID. In its opinion, the court declined to accept this argument, instead framing the numbers by stating that the populations are “effectively identical” in rates of acceptable ID ownership. The plaintiffs also pointed to evidence that Alabamians who are not white tend to have fewer transportation options and other resources needed to acquire a photo ID, but the court pointed to the Mobile Unit as an available option.

Ultimately, the Eleventh Circuit decided that the relative ease of acquiring a photo ID in Alabama represents a minimal burden on the right to vote. This minimal burden, the court said, is outweighed by Alabama’s important interest in promoting security and public trust in elections. In legal terms, the court said that Alabama’s voter ID law is not burdensome enough to trigger strict scrutiny. And the minimal burden imposed is spread almost perfectly equally among various racial groups, with all groups possessing valid photo IDs at rates of 98% and above. This case is a great recent example of how a state can implement a voter ID law without violating the Voting Rights Act. First, allow many forms of photo ID, including student IDs, that are possessed equally across population groups. This will ensure that all demographic groups possess acceptable photo IDs at similar rates. Then, create a mobile ID-issuing team that travels directly to eligible voters who lack transportation options. Finally, validate provisional ballots within a certain amount of time after an election when a voter is able to provide proper ID within that timeframe.

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