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Commentary on Voter ID: Still wrong after all these years

This article first appeared in the St. Louis Beacon, April 18, 2011 - Yet again, the Missouri legislature is considering a bill that would require potential voters to show photo identification before they can vote. Yet again, it is a very bad idea.

This time, the proposed bill would require voters to approve a constitutional amendment because the last time the Missouri legislature passed a photo ID bill, it was ruled an unconstitutional infringement on the right to vote by the Missouri Supreme Court. Undeterred, the proposal's supporters are setting the stage to change Missouri's constitution. But the reasons the old bill failed are instructive, still valid, and worth revisiting as the Senate prepares to vote on the new bill.

In the 2006 case, Weinschenk v. State, the Missouri Supreme Court in a vote of 6 to 1, held unconstitutional a law that required Missouri citizens to show photo identification before they could vote. The court called the requirement a "heavy and substantial" burden on the right to vote; a right, they went on to say, that was at the core of Missouri's constitution. What's more, they noted that the Missouri state constitution gives even more protection for the right to vote than the United States Constitution does. This is why, of course, proponents of photo identification now want us to take the extraordinary step of changing our constitution, to restrict the generous protection Missouri presently provides for the right of suffrage.

In Weinschenk, the Missouri Court made a revealing comparison between a photo identification and a "poll tax." In the 1966 decision Harpet v. Viriginia State Board of Elections, the United States Supreme Court struck down a $1.50 tax that residents of Virginia had to pay before they could vote. Not only did the U.S. Supreme Court say that the tax was impermissible in its own right, it also articulated a more general principle: "Wealth or fee-paying," they wrote, has "no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened." Whether you can vote, whether you can participate in the most basic way any citizen can in a democracy, shouldn't depend on how much money you have -- or even on if you have any money at all.

The Missouri Supreme Court extended the logic of Harper to photo identification. To get a "free" photo ID, Missouri citizens would have to present a copy of their birth certificate or a passport. But these things also cost money to get, and for those who don't have them, a photo identification requirement is tantamount to a tax on the right to vote. Nor does it matter that it wouldn't cost that much to get a birth certificate -- although the expense will no doubt appear significant for those struggling to put food on the table. The point is the principle, as the Missouri Court made clear. "The exercise of fundamental rights cannot be conditioned upon financial expense," they wrote. A tax is a tax, no matter how small.

The Missouri Court also recognized, of course, that Missouri has an interest in preventing voter fraud. But it concluded that the proposed bill wasn't narrowly tailored enough. Case in point: much fraud (as one might suspect) is absentee ballot fraud, but photo identification requirements at the polling place wouldn't do anything to stop that kind of fraud.

Moreover, the court went on, there wasn't much evidence -- and we can add, there still isn't much evidence -- that there was voter fraud even at polling places.

Finally the court ruled that it wasn't enough to say that we needed to combat the "perception" that there was widespread voter fraud -- especially if that perception is a misperception. "[T]he protection of our most precious state constitutional rights must not founder in the tumultuous tides of public misperception," they concluded.

The debate about photo identification invites an inquiry into the motives of both those who support it and those who oppose it. Those who lack photo identification -- the poor, the elderly, and minorities -- tend to vote Democratic. A photo identification requirement would make it harder for these groups to vote, something for which defenders of the bill may secretly be hoping. In a bid to make their proposal more acceptable to those of both parties, the new bill has safeguards for those unable to afford photo identification. But we still might wonder why we need to put voters through any more hoops, especially when the evidence of fraud is so slight.

The beauty of the Missouri Supreme Court's decision, and indeed, of the Missouri Constitution, is that it helps us to abstract from these partisan debates, and to focus instead on the fundamental right to vote itself. It invites us to ask again some very basic questions: Do we really want to make it harder for those who have a right to vote to exercise that right? Can't we agree that if there's one right we shouldn't worry about being too generous in protecting, that right is the right to vote?

The answers to these questions should be obvious now, as they were to a majority of the Missouri Supreme Court several years ago. It is time, finally, to put the bad idea of photo identification behind us once and for all.

Chad Flanders is assistant professor of law at the Saint Louis University School of Law. Jamie Rodriguez is a recent graduate of the Saint Louis University School of Law.

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