Constitution Check: Is it unconstitutional to require voters to have a photo ID?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: the new wave of laws to require photo IDs as a condition for voting.

The statement at issue

“If a state requires voters to buy a photo identification card from the state department of motor vehicles or other agency in order to vote, then this essentially constitutes a poll tax, which is specifically prohibited by the 24th Amendment.”

Richard Harlan of Taos, N.M., in a letter to the editor of The New York Times, published December 30 as a comment on the announcement by the Justice Department a week earlier that it would not give legal approval under the federal Voting Rights Act to a new voter photo ID law in South Carolina. The letter did not spell out whether the writer was discussing the application of a photo ID law in a state or a federal election.

We checked the Constitution, and…

The letter-writer clearly overstated the impact of the anti-poll tax Twenty-Fourth Amendment, first because that Amendment does not apply to elections for state offices, and, second, because the Amendment is silent on whether a state may charge a voter a fee to obtain an ID card. In fact, very little of the constitutional controversy over photo ID requirements for voters has had to do with the Twenty-Fourth Amendment, anyway.

The signing of the 1965 Voting Rights Act

The reality is that, if photo ID requirements are going to be struck down, it would probably be either under the guarantee of legal equality under the Fourteenth Amendment, or under one of two provisions in the 1965 Voting Rights Act which seek to assure voter equality. It actually was after the Twenty-Fourth Amendment had been ratified, in 1964, that the Supreme Court struck down poll taxes for voting in state elections (in the 1966 case of Harper v. Virginia Board of Elections); it did so under the Fourteenth Amendment equal protection guarantee.

And what is at least implicit in the Harper decision (and made explicit by later Supreme Court rulings) is that it would also violate the Fourteenth Amendment if a state were to charge a fee for a photo ID card when such a card was required for voting. The Court said in the Harper ruling: “To introduce wealth or a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor.”

The Twenty-Fourth Amendment, it should be pointed out, was used by the Court in a 1966 decision (Harman v. Forssenius) to strike down a Virginia law — applied to federal elections — requiring the payment of a $1.50 poll tax or, alternatively, offering notarized proof that the voter lived in the state. The Amendment thus did provide a real remedy against poll taxes in federal elections — something that Congress had been trying, unsuccessfully, since 1939 to do by simple legislation.

More recently — and, particularly, within the past year — the campaign in state legislatures to impose conditions on the right to vote have been based on the more respectable argument that fraud in voting had become a serious problem, and ways had to be found to combat it. Indeed, the state legislators who turned to a photo ID requirement as an anti-fraud device had been encouraged to do so by the 2005 report of a federal Commission on Election Reform on which former President Jimmy Carter served as co-chairman. The commission, though, said that such a photo ID card should be available to any voter for free.

Opponents of the new photo ID requirements for voters have challenged the argument that these were necessary to combat fraud, since — the challengers insist — there is very little evidence of fraud in voting anywhere.

But those challengers also have to accept the reality that the Supreme Court has not rejected the anti-fraud rationale. Indeed, just three years ago, in the case of Crawford v. Marion County Election Board, the Court upheld Indiana’s photo ID requirement for voters in that state. The Court said that, while Indiana had not brought forth strong evidence that voter fraud was a problem that could be cured by a photo ID requirement, the Court was willing to accept — as a general proposition — that fraud in voting does occur, and that states must be free to respond to it.

During the past year, perhaps at least partly encouraged by the Court’s decision upholding the Indiana law, five states adopted new photo ID requirement, and that idea was also considered in a dozen other states. Louisiana was one of the states adopting such a requirement, and that is the state law that the Justice Department in late December challenged.

The Department did so under the Voting Rights Act of 1965, arguing that the Louisiana requirement fell more heavily upon minority voters because data gathered in the state showed that minority voters were 20 percent more likely than white voters to lack an ID card issued by the state motor vehicle department.

With Louisiana vowing to fight this rejection in court, the controversy over the expanded use of the photo ID requirement is sure to continue as this year’s elections unfold across the Nation.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.