Strict Voter ID Laws Are Winning in Federal Courts

Judge's gavel representing federal court victories for strict voter id lawsAs voters hit the polls for the 2014 midterms, as many as half will be asked to show ID.

Based on 2012 data, 55% of registered voters live in states that currently enforce voter ID laws. About 30% reside in the 21 states that request ID but will also use other means to certify a voter’s eligibility. The other 25% live in the 10 states that require ID for in-person voting, including 7 states that insist on photo ID.

Defenders of voter ID say it has already won in the Supreme Court. They’re right—at least about the voter ID law in Indiana. One of the first in the nation to require government-issued photo ID at the polls, Indiana’s law passed constitutional muster by a vote of 6-3.

Strict photo ID requirements like Indiana’s continue to win in the upper echelon of the federal judiciary. But, strange as it may sound, opponents of those voting restrictions can still fight them at the polls.

Since the Supreme Court upheld Indiana’s law in 2008, similar statutes have prevailed in federal courts one step below the nation’s highest. The 11th Circuit Court of Appeals upheld Georgia’s strict photo ID law in 2009. The 7th Circuit upheld Wisconsin’s in October. Soon the 5th Circuit will review a lower court decision that struck down Texas’s law. Given voter ID’s three big wins so far (not to mention the many Republican appointees on the 5th Circuit), the Texas statute could easily be upheld.

If Texas’s law does rebound, its opponents can still appeal to the Supreme Court, just as those challenging Wisconsin’s law can. But the Supreme Court doesn’t have to hear either appeal, and it may not. The Court declined to review the 11th Circuit’s decision to uphold Georgia’s law. The 11th Circuit leaned heavily on the Indiana ruling. So did the 7th Circuit when it let Wisconsin’s law stand. And likely so will the 5th Circuit if it upholds Texas’s.

Say that court challenges to voter ID laws in Texas and Wisconsin eventually fail. What’s left for the challengers to do? They can rewrite or repeal the laws. I know—a legislative defeat of voter ID in Texas or Wisconsin sounds even less likely than a judicial one. Supporters of voter ID control the legislatures (and the Governor’s offices) in both states. Unseating them or overriding them by referendum means defeating them at the polls, where the people most likely to be wronged by a strict photo ID requirement are least likely to be heard.

But people who have the necessary ID, as most do, can still speak for those who don’t. In 2010, about 210 million Americans, including 88% of the voting age population, had a driver’s license, just one of several forms of photo ID accepted at even the pickiest polling places. Responding to claims that voter ID laws depress voter turnout, President Obama recently said, “Most of these laws are not preventing the overwhelming majority of folks who don’t vote from voting.” Apathy is the primary problem. People think their vote is “not going to make a difference,” said the President.

In Texas, where the layout of voting districts favors Republican majorities in the state House and Senate, apathy may seem perfectly reasonable. And voter turnout there is very low. During the 2010 midterms, just 32% of eligible voters in Texas participated, 9 points below the national average. It was the lowest turnout of any state. During the 2014 midterms, if as many as 6% of Texas’s registered voters don’t vote because they lack state-issued photo ID, that’s a problem. But if over 60% of eligible voters don’t vote because they just lack motivation, that’s also a problem—one whose solution won’t come from the courts, not even when it comes to redistricting.

A remedy for the potentially disenfranchised, whether in Texas or Wisconsin, may not come from the courts either. Still, if an unjust law threatens to limit who can vote, opponents can work to expand who does vote. And there’s room to grow in Texas and even in Wisconsin.