so up till now we've learned that the early cases which had said that courts should not get involved in elections or in protecting voting rights were then replaced by some sort of foundational precedent in the 1960s with Harper versus Virginia Board of Elections in similar cases that said that no that courts can interpret the equal protection Clause as protecting voting rights and we discussed that you know while the court says that strict scrutiny applies to restrictions on voting it can't possibly be the case that all restrictions on voting should be struck down whether it's categorical uh uh exceptions to the normal rule of equal the equal right to vote say with when it comes to felon disfranchisement or mental competence or residency or citizenship or age there are exceptions to that general rule but then just in the kind of garden variety uh administration of Elections they're going to be all kinds of burdens that are placed on uh individuals when they try to vote and that can be true in the registration process the voter identification and verification process the location of polling places wait times the manner of voting whether you're talking about say voting by mail voting early uh or how long the period for voting is all of those different kinds of restrictions which make up election law are going to have some burdens on some voters such that maybe some of them wouldn't even end up voting and so how do we navigate these sort of two classes of cases when do we think of election law is presumptively unconstitutional versus presumptively constitutional as a general rule those kinds of categorical discriminations must survive strict scrutiny you see that from from Harper with those exceptions that are are textually based and then you've got um these other kinds of restrictions on voting so election regulations which the court is subject to a kind of balancing test uh such that if they they cause a severe burden on the right to vote maybe they'll be struck down but otherwise they're likely to be upheld one of the difficulties here is that you know all election regulation um makes it difficult for some parts of the population to vote so think about whether you know whether you live near a polling place or you live far away from it if you live several miles away from a polling place is that a constitutional problem similarly if you um uh you know if you move a lot of the time and you have to re-register to vote uh in order to to exercise the franchise is that unconstitutional um restriction on your voting rights so there's all kinds of aspects of the electoral process that create burdens and it can't be that all of them are unconstitutional many of them are absolutely critical parts of the of the process whether it's ensuring the Integrity of the election preventing fraud or um just trying to run an election where you have hundreds of millions of people who are uh attempting to vote and so the court has said that look when it comes to these kinds of election uh regulations and store versus brown it says there's no litmus paper test that can separate constitutional from unconstitutional regulations of the voting process some kind of balancing is necessary and inevitable and so while there are many different cases uh related to this kind of Regulation and we'll talk about some of them in in subsequent lectures dealing with ballot access I want to spend most of this lecture talking about voter ID laws uh and voter identification in general so this is of course a quite polarizing and Hot Topic these days but I thought it might be useful to give a little bit of the history of um voter identification laws in the voter identification controversy in the U.S I should say that you know when you talk to folks from other countries um and describe how controversial the issue of voter identification is here in the United States they're usually confused and surprised in part because in most countries there's a national ID card or some kind of you know passport that everybody has but we don't have that in the United States we don't have a national ID identification system or a national citizenship list and most people are sort of surprised to hear that and as a result what that means is that most types of at least state provided identification that voters have is usually either a state a state ID card or most likely a driver's license and so all of the socioeconomic biases that play into whether someone is likely to drive or not are then going to play into whether they have identification um that's at least state provided and so um that that's sort of the core of the controversy is that um voter ID in the U.S is sort of different than voter ID many other places because depending on who you ask roughly 10 of Americans don't have a state issued form of photo identification and those each one of those phrases is important state issued brand of photo identification um and so uh this has become a you know polarizing issue among the parties although a majority of Americans are in support of voter ID um and the voter ID movement really the modern voter ID movement begins after the 2000 election in the run-up to the help America vote act that was passed three years later so um the 2000 election the bush versus Gore very close uh presidential election um then led to reforms of the voting process and through a bipartisan deal uh with the help America vote act uh you ended up with Provisions the Democrats wanted Provisions that the Republicans wanted and one of those was the um a voter the first voter ID requirement provided in federal law and what it said was that for first-time voters who registered by mail they needed to show some form of ID but this was not like a state issued photo identification it could be a utility bill or any number of other kinds of identification like mail certain types of mail that you might receive at your house but that was just for first-time voters who registered by mail could be required to show some form of ID um and what we saw in the the wake of the 2000 election Java 2004 election right around that period was that many states started the process of requiring um uh voter identification it wasn't first required there there were many states that required voter ID uh before that but the kind of modern controversy of voter ID starts in the that first six years or so um after the 2000 election and one of the one of the sort of central problems uh when it comes to litigation over voter identification is that it's it's sort of difficult to find individual plaintiffs who are absolutely prohibited from being able to get ID in order to vote it's just that it's a sometimes very burdensome a lot of people don't have birth certificates um a lot of people don't have to requisite documents that are necessary in order to get a driver's license or state ID um but it's also very hard for the defendants for the states to prove that voter ID is necessary to prevent fraud God because that's usually the rationale for a voter ID law is that it's is that it's needed in order to prevent in-person voter impersonation right so that voters are going from one polling place to the next uh impersonating you know either dead voters or trying to vote twice uh and that voter ID would prevent that and that's uh you know never been shown to be a very big problem and so you have this problem of of it's difficult to often Define plaintiffs who are going to be absolutely prohibited from voting because of an ID law but it's also hard to show that vote fraud the kind that would be prevented by a voter ID law that that is as pervasive as many as the states would like you to believe and so uh what we've seen up through uh the 2022 election is uh a sort of familiar pattern of States um largely in the South and middle of the country that have um voter ID laws but the voter just because you call something a voter ID law doesn't mean it's a very difficult voter ID law to comply with many of these states will have um laws that if you that you require that you present a photo ID but if you don't that maybe you can sign an affidavit or you can come back later with to prove your identification or you could have someone vouch for you all kinds of variations on photo ID and then some require a state issued form of photo identification whereas others require something more along what what hover requires where you as long as you have some kind of identifying document you'd be able to um you'll be able to vote and so it's difficult to say that these are the the photo ID States these are the non-photo ID States there's a long Continuum in between those extremes in in the non-photo ID States how do we verify voter identity um often it's through signatures on the ballot book or on on the envelope on an absentee ballot so that um through a process of matching signatures you ensure that the person who is actually voting is the person and who is registered under that name and then uh you know in in some states um you'd have an opportunity to cure any problems with the signature just as you might have a problem a process to cure any disputes over photo identification I'll just say uh as a matter of statutory law under the help America vote act no one can be turned away from the polls for failure to provide uh photo ID they simply would have to vote a provisional ballot uh and then to have that identity verified later but there is a Continuum of of photo ID requirements or ID requirements throughout the states and the court in this case called Crawford versus Marion County in 2008 uh took it upon itself to now adjudicate the requirement of a state issued photo ID for voting at a polling place and the court upholds the uh the photo ID law at issue there against a challenge that was brought by those you know voters who who did not have photo ID um in the Indiana Law the photo ID was free although it might require that you have um you do to get supporting documents like birth certificates where that might require a fee so in these voter ID laws there's often a question as to you know how similar are they to poll taxes because if you have to pay in order to get the ID or the supporting documents does that then evoke the concerns of Harper versus Virginia Board of Elections um but the the Indiana photo ID law is similar to others in that if you couldn't produce an ID at the polls at the time you vote um you can cure that that you can sell your vote counted if you return to a an office late a County Office later to prove uh you are who you say you are but look you know for many people you know tens of millions of people choose not to vote anyway uh and if you're someone who doesn't have a photo ID um would you go through the additional expense and difficulty of um of trying to get it just in order to vote and so for for many people um the idea that they wouldn't be able to vote unless they were to procure a photo ID is a sufficient barrier so that they won't turn out but what interest uh did the Indiana voter ID law serve well the um principal reason behind it was the deterrence and detection of fraud because the argument was that if a person has an ID law it has a photo ID that then you can verify they are who they say they are uh and then you can prevent them from voting in another person's name or that you can prevent them from uh voting in the name of dead people or voting more than once but also the state sort of recognized photo ID as important to its modernization of its voting system to try to make sure that the registration lists uh were accurate and also to safeguard voter confidence um so the idea that that requiring photo ID might convince people that um the election was not fraudulent now what are the plaintiffs claim in in Crawford versus Marion County they launch a facial challenge to this law meaning that they say that the law is unconstitutional and all or most of its applications they said that over a million indianans didn't have acceptable identification although the court the lower court says it's closer to 43 000. um and say that look this this law voter ID law like most voter ID laws falls disproportionately on specific populations the elderly poor racial minorities although they're not they're not suggesting that this was passed with racially discriminatory intent what was difficult for the plaintiffs in Crawford is that um they couldn't sort of identify um a group of people for whom they would be sort of absolutely prevented um from being able to vote so that made it a little bit different than Harper where you say all right these people are unable to pay a dollar fifty really what with both voter ID laws like most of these regulations um it's not that the person will be absolutely prevented from going uh and voting but that it's just a burden it's one that's going to deter them from running because it's just not worth it for them to go out and get the documents to go and uh you know wait in line to get you know at the DMV for instance to get the uh the voter ID and so therefore they they won't end up voting so the plaintiffs in uh Crawford suggest that this is just like a poll tax that Harper versus Virginia Board of Elections should apply that people without ID are just like people who can't pay a poll tax and so therefore uh the law is unconstitutional strict scrutiny should apply that this these laws are not necessary to fulfill the compelling State interest in preventing fraud and so therefore uh they are unconstitutional so the Supreme Court rejected the facial challenge to the Indiana voter ID law uh instead of applying Harper versus Virginia Board of Elections and strict scrutiny it applied a balancing tests from cases like Anderson versus celebreezie and Burdick versus takushi uh Anderson versus Cell Breezy is the case dealing with ballot access like the number of signatures you need to gather for to become a presidential candidate on a state ballot and Burdick versus takushi was the case dealing with write-in votes in Hawaii so these are similar uh to this case to the voter ID case in that they're about regulations of the political process although those weren't cases that dealt with sort of absolute prohibitions when it comes to voting right the the they were not about disenfranchisement they were more about regulations and ballot access and of the ballot itself and what comes out of those cases is a balancing test sometimes called verdict balancing or Anderson balancing which says that a court evaluating constitutional challenge to an election regulation needs to weigh the asserted injury to the right to vote against the precise interest put forward by the state as justifications for the burden imposed by its rule and ordinarily if a law is not seen as imposing a severe burden on the right to vote it's going to be upheld as constitutional and while this is not exactly the model of judicial Clarity when it comes to a test it's hard to think of something better because ultimately a rule like this is going to have to apply to voter registration rules or polling place design and location even ballot design whether you have a right to vote uh absentee or early and so all of those uh laws is very hard to say all right here's the brightline rule where if you go over this line it's going to be deemed as being too severe because all of those rules all of those regulations are going to hit some voters more than others and make it more difficult for them to vote so when it comes to the voter ID law why does the court uphold it the court says that there's enough evidence of fraud at least in the U.S political system throughout history to justify voter ID as an anti-fraud measure it even cites to a poem from the Tammany Hall years in in New York and other big cities in the U.S where uh you know the allegation was that people would go from one polling place to the next uh voting multiple times and voter ID would be the type of thing that might prevent that kind of voter impersonation fraud uh while the the court does give a lot of sort of deference to the state's interest in both preventing fraud and um securing voter confidence that the elections are being uh run in a non-faudulent way it doesn't see the plaintiffs having proven that a significant number of people will not be able to vote because of this voter ID law um so what the court says is that the burden of getting an idea is similar really to the burden of voting and that it requires you to you know go to the Bureau of Motor Vehicles in Indiana and to get an ID uh and so it's not that severe for most people [Music] um and it deems the plaintiffs is not having provided enough evidence uh about the number of Voters who don't have ID and how many of them are going to uh not be able to vote as a result of this voter ID law importantly what the court says here is not that voter ID laws always are going to be constitutional but it says that on their face unless you can show that a large number of people are going to have a severe deprivation of the right to vote um that the court is going to uphold them however in certain discrete circumstances you can launch an as applied Challenge and by that we mean that if a individual is severely burdened in their right to vote say that they you know they don't have a birth certificate because they were born at home or there's real difficulty in trying to get the kind of photo ID law that was required photo ID that was required in Indiana they can bring their own court case they can bring their own lawsuit for themselves as an as applied challenge now that's usually not going to be the kind of litigation that interest groups are going to engage in sort of Case by case with each individual voter and look if an individual has difficulty getting an ID it's hard to think that they're going to also have the resource is in order to bring a federal lawsuit but I just want to be clear that the um that the Supreme Court in Crawford didn't uphold all photo ID laws uh uh it in that case it was just deemed that the photo ID law would did not severely deprive people of the right to vote or at least I'm not a large number of them and it leaves open the possibility for as applied challenges by individuals who face High burdens of the right to vote and so uh the the Crawford is the only voter ID case that the Supreme Court has uh decided and how it's going to be extended to these other contexts remains to be seen although the court is frequently the courts the Supreme Court and lower courts are frequently confronting these cases of dealing with um uh election Administration and these regulations of the political process um how this exception for as applied challenges will will play out uh remains to be seen um as well as what kind of evidence is necessary in order to show that a law imposes a severe deprivation or that it is justified by fraud but the the moral of the story when it comes to Crawford and voter ID laws is that in general they're going to be upheld as constitutional because they're seen as sort of neutral regulations of the electoral process