“Asking Better Questions About Voter Identification Laws”

Eli Poupko:

Everyone agrees that voters must be identified before casting a ballot. The debate is over the particulars of the identification procedure. Specifically, we might ask: How much of the burden of this administrative process may a state place on any individual citizen seeking to exercise the right to vote?

However, the questions more commonly being asked and answered in current debates over voter identification laws, both in the public sphere and in the courts, are generally quite different. These questions have centered mostly on empirical issues, such as: What is the measurable effect of these laws on voter turnout, in general and for people of color in particular? How many prospective voters actually lack the types of photo ID required by the Texas law? And of course, how probable is it that strict voter identification laws might affect the outcome in major elections?

Similarly, in legal challenges to identification requirements, courts have typically looked to the magnitude of the administrative burden, and specifically whether these laws “unduly burden” the right to vote. Notably, courts seem to have interpreted this as weighing the overall impact across groups of potential voters, and they have focused mostly on the question of whether these laws are discriminatory—the main question in the Texas case.

Such questions are no doubt important, but given the state of current debates, these might not be the best questions to be asking in the interests of protecting voting rights and expanding participation. What, then, may be better questions at this time? Election law scholar Richard Hasen has asserted repeatedlythat questions about administrative burdens like strict voter identification laws should focus not so much on turnout effects, nor exclusively on questions of discrimination, but rather on “the dignity of voters,” and whether a state like Texas has any good reason for making voting procedures more burdensome than they actually need to be.

We could take this a step further and assert that the right questions have to do with the value of voting at the individual level. How valuable is any one citizen’s vote? How much responsibility should a state have to prevent the disenfranchisement of just one individual? To what lengths must a state go in helping even just one voter to participate?

Only by answering these types of questions—which involve problems of participatory democratic theory more than empirical issues—can we rightly assess the weight of administrative burdens. For in order to determine whether a state has a good enough reason for its voter identification law, or whether it unduly burdens the right to vote, we must first determine how much weight to give to the individual interest in participation.

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