Josh Douglas has posted this draft on SSRN. Here is the abstract:
I was in “the room where it happens” when Kentucky enacted a new photo ID law for voting. And I lived to tell the tale.
This Article recounts the evolution of Kentucky’s voter ID law, which could have been one of the strictest ID laws in the country but ultimately became one of the mildest. The inside story of how that occurred is itself interesting, but the Article also relates it to a theory of deliberative democracy, or a legislative process that benefits from debate, negotiation, and compromise from various voices, making the final enactment more legitimate. The Article traces the history of the voter ID law, explaining the significant substantive changes that occurred during the legislative process. Next, the Article analyzes the litigation over the bill, which was focused on its implementation during the pandemic and not about the substance of the new law—showing that even opponents accepted its main substantive components. Finally, the Article relates the Kentucky story to a legislative theory of deliberative democracy. The Kentucky process mostly worked because, even though Republicans had the votes to pass the most stringent law possible, they instead moderated in response to opposition from Democrats and advocacy organizations. That moderation made the process more legitimate and created a better substantive outcome. The Article suggests that, to encourage a stronger legislative process, courts could give slightly more deference to a state that passes an election law with indicia of deliberative democracy.
Voter ID laws are unnecessary: they do not root out any fraud that exists and can disenfranchise voters. But the Kentucky experience shows that not all voter ID laws are created equal. If the political reality meant that a new voter ID law was inevitable, the Kentucky version—with its various exceptions and fail-safe protections—is about as good as one can expect. Further, its passage opened the door to other pro-voter reforms. Perhaps the Kentucky model—and the deliberative democracy process it exhibits—can lower the temperature in other states.