I have posted on SSRN a revised version of this piece, now forthcoming in the Wisconsin Law Review Forward. Here is the abstract:
Headlines about voter identification laws often place court rulings in a simple win or loss frame. For example, the New York Times headline describing the result in Crawford v. Marion County Election Board, a 2008 case involving the constitutionality of Indiana’s strict voter identification law, read: In a 6-3 Vote, Justices Uphold a Voter ID Law. Similarly, in reporting on the 2015 decision of the United States Court of Appeals for the Fifth Circuit involving Texas’ voter identification law, the Associated Press article was headlined Federal Court Strikes Down Tough Texas Voter ID Law.
In fact, the results in both cases were more nuanced. As reporter Linda Greenhouse explained in that New York Times article, the Supreme Court decision in Crawford was fractured. Although a majority of the Court rejected a full facial challenge to Indiana’s law on equal protection grounds, a plurality of the Court, as well as the dissenters, left open the possibility that Indiana’s law could be unconstitutional “as applied” to certain voters who faced special burdens in getting a voter identification law. Further, although the Fifth Circuit did hold in Veasey v. Abbott that Texas’s voter identification law violated Section 2 of the Voting Rights Act, the Court held that the appropriate remedy would not be a wholesale abandonment of the law; instead the appeals court directed the lower federal district court to allow Texas to use its law in most instances, but to craft a remedy which would allow those facing special burdens additional ways to prove identity and cast a ballot.
In theory, softening of voter identification laws through litigation is a positive development aimed at avoiding disenfranchisement of both voters who face special burdens obtaining an acceptable government-issued identification necessary to vote and of those voters who face confusion or administrative error. In practice, however, softening may do less to alleviate the actual burdens of voter identification laws than to make judges feel better about their Solomonic rulings. In fact, softening devices still leave an uncertain number voters disenfranchised. These burdens might be justified if there were evidence that state voter identification laws solve a serious problem, but there is no such evidence.
This brief Essay first describes the theoretical softening which emerged in some voter identification litigation. It then explains that such softening offers less than meets the eye in helping voters facing difficulties voting in states with strict voter identification requirements. It concludes that courts should strike down fully strict voter identification laws, because the laws deprive at least some voters of the ability to cast a valid vote for no good reason, and the softening devices do not do enough.