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Beware Claims about ‘unconstitutional’ Voter ID

By Mitch Kokai- Voter ID is constitutional in North Carolina. And not just because more than 2 million voters, 55 percent of those casting ballots, said so last month.

Opponents of North Carolina’s new constitutionally mandated voter ID requirement protest outside the state Legislative Building on Nov. 27, 2018. (CJ photo by Don Carrington.)



Critics will spend the coming weeks and months continuing to question the constitutionality of a photo identification requirement. Yet the facts are clear. At the federal level, the U.S. Supreme Court has upheld the basic concept of a photo ID rule as constitutional. At the state level, a solid majority of voters decided to build a photo identification requirement into the constitution. You can’t get much more constitutional than that.
I’m tempted to end the column here by repeating: Voter ID is constitutional. But the previous two paragraphs explain nothing about why North Carolina’s new voter ID requirement will undoubtedly face future legal challenges. Nor have the facts stated above explained why a state or federal court still could choose to strike down an ID law before it’s ever enforced in North Carolina.

Addressing those issues requires a greater level of detail.

‘Constitutional’ versus ‘good’

First, let’s remember to separate the question about constitutionality from a consideration of whether voter ID is good or bad. “Constitutional” does not function as a synonym for “good.” Likewise, one cannot substitute “unconstitutional” for “bad.”

Critics of voter ID don’t like the policy. They also recognize that the word “unconstitutional” carries a negative connotation. So they employ a more effective rhetorical tool when they label voter ID “unconstitutional” instead of “bad,” “unwise,” or “misguided.”

More effective, but not correct.

The highest court has ruled

Just 10 years have passed since the U.S. Supreme Court ruled in Crawford v. Marion County Election Board that Indiana’s law requiring voters to provide photo identification did not violate the U.S. Constitution. Six of the nine justices agreed with that outcome.

Three of the court’s conservative voices would have ruled that the nation’s highest legal body had no business meddling in a state election law involving photo IDs. But even liberal stalwart John Paul Stevens agreed that a photo ID requirement helped Indiana address legitimate state interests of “election modernization,” preventing voter fraud, and “safeguarding voter confidence.” Stevens wrote what turned out to be the main opinion in the case.

Another liberal voice on the high court, Justice Stephen Breyer, suggested in a dissent that he would support some voter ID laws while opposing Indiana’s specific requirements. Only two dissenting justices suggested that Indiana would have needed to provide actual evidence of voter fraud before establishing an ID law.

The Supreme Court’s membership has changed in the past decade, but nothing about those changes suggests Crawford’s precedent faces any jeopardy. In other words, it’s highly likely that the U.S. Supreme Court still would uphold the basic premise of a photo ID requirement for voters.

What about that ‘surgical precision’?

If seven members of the U.S. Supreme Court agreed in 2008 that voter ID can be constitutional, some of you are no doubt asking, why did courts strike down North Carolina’s first attempt to enact a voter ID law? The Raleigh News & Observer reported just last week that “A previous voter ID bill from 2013 was struck down in 2016 by a panel of judges who said it targeted African Americans with ‘discriminatory intent.’ The U.S. Supreme Court upheld the decision.”

Similar reports about the fate of the 2013 N.C. election law note the three-judge panel’s finding that it targeted black voters “with almost surgical precision.” Voter ID critics have employed the “surgical precision” language ever since state lawmakers revived the idea of establishing a new photo ID requirement. Last week’s voter ID protest outside the state Legislative Building featured signs highlighting the colorful phrase.

But the N&O, other media outlets, and protesters all miss the mark when they fail to distinguish the 2013 election law from the basic concept of voter ID. The 2013 law combined a photo ID requirement with other provisions. It restricted days and hours of early voting. It eliminated same-day voting registration and blocked people from voting outside their designated precincts. It ended preregistration for 16- and 17-year-olds.

That combination of election-law changes led Judge Diane Gribbon Motz to her conclusion about “almost surgical precision.” Writing for the three-judge panel of Democratic appointees, Gribbon Motz did not apply her medical analogy to voter ID itself. She was unwilling to join her two colleagues in striking down the photo requirement. A “reasonable impediment” provision added in 2015 convinced Gribbon Motz that North Carolina’s photo ID rules might withstand judicial scrutiny. She was willing to withhold judgment.

In summary, neither a federal trial court nor the U.S. Supreme Court ever has issued a ruling about a North Carolina law dealing solely with voter identification.

N.C. voters have ruled

One month has elapsed since 55 percent of North Carolina’s voters agreed to amend the state Constitution. Article VI, Section 2(4) now features the following language: “Photo identification for voting in person. Voters offering to vote in person shall present photographic identification before voting. The General Assembly shall enact general laws governing the requirements of such photographic identification, which may include exceptions.”

The new language follows a constitutional provision in Section 2(3) that disqualifies felons from voting. It precedes Section 3’s rules for voter registration. It’s pretty clear that the state constitution not only permits but actually requires photo ID for in-person voting.

This new requirement shuts down one potential legal challenge. No one will be able to argue in court that a photo ID itself violates a provision of the state constitution.

Amendment vs. law
So there’s an open-and-shut case in favor of a law implementing North Carolina’s constitutionally mandated voter ID requirement, right? Not necessarily.

As the new constitutional provision explains, the General Assembly “shall” place the meat on the bones of the voter ID requirement. When enacting “general laws” to meet that goal, lawmakers must comply with both the state and federal constitutions.

It’s hard for this observer to picture a voter ID requirement that would violate the state constitution’s new provision. But one suspects that sharp legal minds already are devoting time and energy looking for ways to challenge the specifics of the implementation law.

Meanwhile, it’s almost certain that the law will face a federal court challenge. Even though the U.S. Supreme Court has upheld voter ID as a concept, critics will latch onto any element of North Carolina’s law that differentiates it from the Indiana law. Those differences will serve as the basis for a fresh courtroom controversy.

As the legal maneuvers unfold, expect to hear critics decry North Carolina’s “unconstitutional voter ID.” This will represent imprecise shorthand for their argument that North Carolina has enacted an unconstitutional law while trying to implement voter ID.

That’s the only available argument. As noted above, voter ID — as a concept — clearly is constitutional.

Mitch Kokai is senior political analyst for the John Locke Foundation.

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