By: Katie Teeters

Voter ID laws are spreading across the country leaving controversies in their wakes. Advocates believe requiring ID is a good way to prevent in-person voter fraud and increase public confidence in the election process, while opponents say that voter ID laws unduly burden the right to vote. Still, a total of 36 states have passed laws requiring a showing of some form of identification in order to vote. This blog post will take a look at voter ID laws and their respective implications in Texas and Indiana.

Indiana passed SEA 483 in 2005, a voter ID law, which applies to in-person voting at both primary and general elections. If a voter is unable to provide their ID on the day of voting, the voter may cast a provisional ballot, which will be counted as long as he brings his photo ID to the circuit county clerk’s office within 10 days. The law allows indigent voters and those that have a religious objection to being photographed to cast a provisional ballot, as long as they execute an appropriate affidavit before the circuit clerk within 10 days.

In 2011, the Texas Legislature passed Senate Bill 14 (SB 14), creating a new requirement for voters to show photo identification when voting in person. Similar exceptions found in SEA 483 were imitated in SB 14. Those that had religious objections and those without an ID at the time of voting could cast provisional ballots, but in Texas, they would only have 6 days to appear before a county registrar. Persons with a disability were exempt from providing photo ID if they could provide the requisite documentation, but there was no exception for indigent voters.

Following the enactment of SEA 483, parties in Indiana filed suit claiming that the voter ID law violated the Fourteenth Amendment by substantially burdening the right to vote. Those opposing SEA 483 argued that it would “arbitrarily disfranchise qualified voters who do not possess the required identification and [would] place an unjustified burden on those who cannot readily obtain such identification.” Similarly, in Texas, plaintiffs brought suit asserting that SB 14 violated the Fourteenth Amendment, but in addition, that it violated Section 2 of the Voting Rights Act. Plaintiffs insist that SB 14 was enacted with a racially discriminatory purpose and has a racially discriminatory effect.

In 2008, the Supreme Court upheld the constitutionality of the photo ID requirement in Indiana finding that SEA 483 closely related to Indiana’s legitimate state interest in modernizing elections, preventing voter fraud, and safeguarding voter confidence. Whereas, the Court felt that the “inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph [did] not qualify as a substantial burden on most voters’ right to vote.” In upholding the validity of the state’s purported interests, the Court focused on the National Voter Registration Act of 1993, and the Help America Vote Act of 2002. Neither of these Acts required voter ID, but the Court concluded that they indicate that Congress feels the integrity of elections is strengthened through improved technology and use of photo identification. When looking at burdens SEA 483 would place on voters, the Court observed that the evidence provided was very limited. Plaintiffs were unable to produce any witnesses who would be unable to meet the law’s requirements, and the record had virtually nothing about the difficulties indigent voters would face. Performing a balancing test, the Court found that the state’s interests outweighed the burdens on voters.

In a recent decision by the Fifth Circuit Court of Appeals, the Texas voter ID law was struck down. The Fifth Circuit remanded to the district court for a reexamination of discriminatory purposes in violation of the Fourteenth and Fifteenth Amendment. According to the Fifth Circuit, the district court relied too heavily on history before 1970, and post-enactment speculation by opponents of SB 14. However, the Fifth Circuit did find that SB 14 violated Section 2 of the Voting Rights Act, because it had a discriminatory effect.

In determining whether SB 14 had a discriminatory effect in violation of Section 2, the Court employed a two-part framework used by the Fourth and Sixth Circuits. The first part of this test requires a finding that there is a disparate impact on minorities. The Fifth Circuit found that there was a disparate impact after looking at the percentage differences of Anglo-registered voters versus minority voters, and the difficulties that the poor would have in acquiring an ID or an Election Identification Certificate. The second part of the framework requires that the burden from SB 14 must “in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class.” In determining this, the Fifth Circuit made use of the Senate Factors found in Thornburg v. Gingles, and found that the burdens from SB 14 were caused by social and historical discrimination against minorities.

The voter ID laws enacted in Indiana and Texas were fairly similar, although Texas’s was certainly stricter. However, the differing result of the two states’ cases is primarily due to the different tests that were used to evaluate them. Going forward it will be interesting to see what the Supreme Court does with the Texas voter ID law. The Texas case has more evidence of the impact on indigent voters, so it is possible that the Supreme Court might reevaluate its view on the Fourteenth Amendment and voter ID laws. At the same time, it will be fascinating to see what is decided on the Section 2 claim, considering the use of Senate Factors seems out of place in a vote denial context.

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