Justice Department letter to Texas objecting to voter ID law

[MysticCat]

Originally Posted by Kevin

As for Mysticat's argument that those advocating for this have the burden, isn't it true that we presume things flowing from the legislative process to be constitutional? Isn't it then the other way around--that either the opponents have to show that this requirement conflicts with the 24th Amendment or is in somehow in violation of equal protection?

As a general rule, yes. Statutes are generally presumed to be constitutional. But any legislature considering a law like this should surely think ahead to the lawsuit that will come.

If a law burdens a "fundamental" or "core" right -- and the right to vote typically is found to fit that bill, so it seems at least reasonable to predict that a court might find that it does so here -- then the presumption of constitutionality is lost, and the statute will only be upheld if the government can show that it is narrowly tailored to serve a compelling governmental interest. That's where the rubber would hit the road on needing to show that there actually is a problem and that voter ID will address that problem and goes no further than necessary to address that problem.

[Kevin]

Originally Posted by MysticCat

As a general rule, yes. Statutes are generally presumed to be constitutional. But any legislature considering a law like this should surely think ahead to the lawsuit that will come.

If a law burdens a "fundamental" or "core" right -- and the right to vote typically is found to fit that bill, so it seems at least reasonable to predict that a court might find that it does so here -- then the presumption of constitutionality is lost, and the statute will only be upheld if the government can show that it is narrowly tailored to serve a compelling governmental interest. That's where the rubber would hit the road on needing to show that there actually is a problem and that voter ID will address that problem and goes no further than necessary to address that problem.

See Crawford v. Marion County Election Board, 553 U.S. 181 (2008).

The only distinguishing factor is that Texas drivers licenses cost money. The only question is whether that fact, when taking into account that there are many other ways a citizen can prove their identity which don't cost money, is enough to distinguish from Crawford.

The SCOTUS has already upheld these sorts of laws in principle. It's hard to imagine that the Texas case will come out differently.

[MysticCat]

Originally Posted by Kevin

See Crawford v. Marion County Election Board, 553 U.S. 181 (2008).

The only distinguishing factor is that Texas drivers licenses cost money. The only question is whether that fact, when taking into account that there are many other ways a citizen can prove their identity which don't cost money, is enough to distinguish from Crawford.

The SCOTUS has already upheld these sorts of laws in principle. It's hard to imagine that the Texas case will come out differently.

I wouldn't say that was the only distinguising principle. A significant (I think, and based on my memory of Marion) issue in Marion was the lack of facts from either side. What you say about "in principle" is important. While Marion might stand for the proposition that ID laws would likely be found to be facially constitutional by SCOTUS, different facts could certainly lead to a finding that it is unconstitutional as applied* to specific plaintiffs. I think the Court left that door open.

Another thing that I think needs to be considered, at least in some instances, is that just because SCOTUS might find no violation of the federal constitution doesn't mean that state supreme courts couldn't or wouldn't find violations of state constitutions. I think there has been a trend toward state constiutional claims, and in my state at least, the Supreme Court has recently seemed willing to go further on equal protection-type claims under the state constitution than SCOTUS has gone. (Granted, maybe not in Texas.)

But beyond that, when I say that those who want to change the law "bear the burden" of showing the need for it, I don't just mean that in legal standard-type sense. I also mean it in a practical/legislative policy sense. I think as a general rule, those who advocate a change in the law bear the burden of showing why that change is needed and how the change will work.

As I've said upthread, I'm in a state that (currently) does not require IDs of any kind to vote, and there is no evidence of anything approaching widespread voter fraud. The use of regularly-updated computerized databases makes things like "dead people" voting much more difficult. To the extent there is fraud, it is primarily people attempting to vote twice, which no ID requirement would catch. So I need to be convinced as to why we would should to add an extra step at the polls, especially if it could work a hardship for some voters.


* The "as applied" is for DrPhil.