Constitution Check: Is the fight over voter ID laws a prelude to a constitutional crisis?

Lyle Denniston looks at the Voter ID issue possibly affecting the legitimacy of the next president, if opponents of such measures can prove voter suppression existed during the election.

The statements at issue:

“This November, restrictive voter ID states will provide 127 electoral votes – nearly half of the 270 needed to win the presidency.  Therefore, the ability of eligible citizens without photo ID to obtain one could have a major influence on the outcome of the 2012 election.”

– Brennan Center for Justice,  at New York University School of Law, in a new report,

“The Challenge of Obtaining Voter Identification,” July 17

“[Mitt Romey] as president…might find himself as frustrated as Obama.  Democrats are planning to challenge his legitimacy, on grounds of Republican-imposed voter ID laws with disparate racial impact.”

– Fred Hiatt, Washington Post editorial writer, in an op-ed column on July 30, “A blocking election: The motivation for voters has become stopping the other guy”

“What should Democrats do if Romney comes to power on the strength of racially suppressed votes?…Mass demonstrations would be in order.  So would a congressional refusal to confirm any of Romney’s appointments.  A presidency premised on a racist restriction of the franchise creates a political and constitutional crisis…”

– Harold Meyerson, Washington Post columnist, in op-ed comments on July 25, “The illegitimate aims of voter suppression”

We checked the Constitution, and…

America’s founding document, and some of its amendments, spell out a process for choosing presidents, but it doesn’t have anything to say about the constitutional legitimacy of the candidates who wind up as the winners  — that is, if they can avoid impeachment.  The country’s tradition of a peaceful transfer of Executive Branch power, even after a bitter campaign, may have made it seem that the system has worked pretty well.

But it is hardly surprising, given the extreme partisan polarization of today’s national politics, that a president’s election has the real potential for stirring up claims of constitutional illegitimacy.   How often has President Barack Obama’s place of birth been brought up as if it were a genuine issue over his right to be in the White House, despite the fact that his election victory was decisive?  How often has the Supreme Court’s ruling in Bush v. Gore been used to besmirch the Presidency of George W. Bush?

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

With all of the polls suggesting that the outcome of this year’s presidential election is going to be exceedingly close, it will be quite easy, should Mitt Romney win narrowly, for the refrain of illegitimacy to be heard again and perhaps often.  In fact, the frank observations of Fred Hiatt and the aggressive speculation of Harold Meyerson, noted above, suggest that this has already begun.

The cause, if there is one, appears to lie with the deep and still-spreading controversy over the spate of new state laws demanding that voters have some sort of photo ID before they will be allowed to cast their ballots.   It is not coincidental, perhaps, that those have been passed by Republican-dominated legislatures, and that the most likely voters to be turned away as a result will be those deemed likely to vote Democratic – minorities and the poor.

Sponsors of such measures, of course, have defended them as objective measures to prevent voter fraud, and they can cite a Supreme Court decision that says a photo ID law is one way to counter such fraud, where it is shown to exist.   The opponents of such laws, by contrast, say that fraud claims are seriously exaggerated, and argue that voter suppression is the true goal.

For some states, this may be sorted out in the courts.  That is because several of the states with photo ID requirements are covered by the federal Voting Rights Act, and the Obama Administration has been energetic in challenging such laws in those states, on the argument that they do, intend, have the intended effect of curtailing voting, especially by minorities.

But what about other states with photo ID requirements, but without the history of past voter discrimination that unfolded in the Voting Rights Act states?   In those other states, how does one show a legal connection between a photo ID law and a resulting low turnout among certain blocs of voters?   Are partisan aspirations illegal if blatant racial targeting has not been proven?   Courts tolerate partisan aspirations all the time, in the redistricting process.

Finding solid proof that a photo ID requirement has made the real difference in a presidential election may be very difficult, indeed.  How does one track low turnout, even among those in an identifiable bloc, and trace it back to the effects of a photo ID law?

Let’s assume, then, that a legal remedy for this perceived problem is not going to be very successful, or at least not very broadly so.   The constitutional question then arises: to what tactics do the followers of a disappointed candidate turn, if it has turned out that the winner has just squeaked by and the losing side argues that “racial suppression” was at work?

Is it, in other words, constitutionally tolerable to shut down the government, and render a new president ineffective, if that is what the opposition chooses as its political remedy?

For some years, political gridlock and obstructionism have frustrated many Americans who believe that those they send to Washington should be able to run a government.   How would they react if, perhaps, nothing at all gets done?  That, one might say, would be the makings of a crisis.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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