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Judicial Progress on Voter ID

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The tides are turning on voter ID. Within the past week, a federal judge in Wisconsin and a state judge in Arkansas invalided their states' strict voter ID laws, and a Pennsylvania judge refused to reconsider his January decision striking down Pennsylvania's voter ID law. This follows on the comments from noted federal Judge Richard Posner, who expressed regret at his prior vote in 2007 upholding Indiana's voter ID law, a decision the Supreme Court eventually affirmed in 2008.

What explains this shift? One significant change has been the way in which judges are analyzing these laws. Instead of simply deferring to the state's generalized interest in "election integrity" - the approach the U.S. Supreme Court has adopted for most state voting rules, as I recount in a new article - the courts instead are scrutinizing more carefully a state's asserted rationale.

In the process, the courts have required the states to provide actual evidence of the existence voter fraud - and the states have been unable to meet this justifiable requirement.

Because voting is a fundamental right, states should have a strong enough reason, supported with facts, for passing a law that makes it harder for some people to vote. The courts have pressed states to rationalize their laws with actual evidence of the existence of the harm the states are trying to address. Put simply, it is up to the state to justify a voter ID law. Wisconsin, Arkansas, and Pennsylvania were unable to do so.

The requirement that Wisconsin support its voter ID law with a specific reason, beyond the vague assertion of "election integrity," pervades this week's federal court decision. The court pressed Wisconsin to provide a more specific and detailed explanation for its law, supported with actual evidence. Wisconsin could not do so.

For example, Wisconsin claimed that its voter ID law would detect and prevent in-person voter impersonation. Of course, that's a worthy goal as a general matter. The problem was that Wisconsin failed to provide any evidence that there was any actual in-person voter fraud in the state's elections.

The court wrote that "[t]he defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past." This is significant: instead of requiring the plaintiffs to prove the state's lack of a valid interest - the more common approach - the court required the state to prove that it did have a valid reason for the law by submitting actual evidence.

Similarly, when the state asserted that its voter ID rule is needed precisely because in-person voter impersonation is hard to detect, the court put Wisconsin to the test, requiring it to show, as opposed to simply assert, that this kind of fraud is inherently more difficult to root out. Once again, Wisconsin could not do so. In fact, the court found both that in-person voter impersonation is fairly easy to uncover and unlikely to occur because, in the court's words, "a person would have to be insane" to try it. The payoff--an added vote for the person's favored candidate - is so small, and yet the risk of detection is so high.

The Arkansas state court's decision was much shorter, but the message was similar: it is up to the state to justify a law that adds an additional qualification to vote. The Arkansas opinion was significant because it rested on the state constitution, and the court recognized that the state constitution goes beyond the federal constitution in granting the right to vote. Just as importantly, the court noted that although reducing voter fraud is a worthwhile legislative purpose, the state could not justify a voter ID law under that rationale if the law also added an additional voter qualification. Once again, then, the state was put to a greater burden and could not simply rest on generalized notions of "election integrity."

To be sure, "election integrity" is an important state interest. No one disputes that. We want our elections to be as clean and fraud-free as possible. But this generalized assertion should not be enough to sustain a law that makes it harder for some people to vote. These courts are correct to strike down the laws when the state cannot produce evidence of an actual integrity problem in the state's elections.

But there is still an elephant in the room, and it is one the courts should address explicitly: what is the real rationale for these laws? Although the states may claim election integrity as a general matter, everyone knows that these laws are most often, in reality, partisan-based measures that are intended to influence upcoming elections.

Voter ID laws have their greatest effect on minorities, poor people, elderly voters, and students--who all tend to vote in greater numbers for Democratic candidates. This is why Republicans generally support, and Democrats generally oppose, strict voter ID laws. Unless passed with bipartisan support, there is an inherent partisan tinge to any voter ID debate. But we should not sanction election laws promulgated for partisan reasons.

Some Republicans have even admitted that voter ID measures are intended to help out their candidates at the polls - most famously when Pennsylvania Republican House Majority Leader Mike Turzai said, in the lead-up to the 2012 presidential election, that Pennsylvania's new voter ID law would deliver the state to Republican nominee Mitt Romney. This is illegitimate. The courts are usually not acknowledging it, but the reason why these issues have so much public salience is because of their partisan nature.

Any laws passed primarily with partisan gain in mind - whether by Republicans or Democrats - should receive greater scrutiny. Thus, Democrats were wrong for trying to keep Ralph Nader off of the ballot in key swing states during the 2004 presidential election, because they were doing so for partisan advantage. It does not matter which party is using its legislative majority to try to entrench itself. Voting laws should be about running the cleanest election with the highest possible turnout--not about gaming the system so that one side has a better shot at winning.

Courts therefore should scrutinize the true reasoning behind an election rule. If the legislature split along party lines when passing the rule, for example, then this should raise red flags for a judge. The judge will want to scrutinize the state's asserted rationale carefully. Perhaps a state could justify its voting law with actual evidence of its need. If this week's voter ID cases are any indication, however, a state that passes a law primarily to rig the rules of an election to favor the majority party will have a hard time gathering that evidence.

Wisconsin, Arkansas, and Pennsylvania will surely appeal these rulings, so appellate courts will have to grapple with these issues in the near future. (The Arkansas Supreme Court, in a split ruling, has already stayed the trial court's ruling.) The Wisconsin case could even reach the U.S. Supreme Court. If the courts carefully scrutinize the state's actual reasons for the laws, and require the states to provide actual evidence of the harm they are trying to address, then the appellate courts will affirm. Otherwise, the courts will be allowing legislative majorities to pass partisan-based laws without meaningful judicial scrutiny.