February 20, 2011
Voter Identification Laws and the Discourse of "Free and Fair Elections": West Virginia Weekend Spotlight on Atiba Ellis
A cornerstone of democracy is the "free and fair election." Recent events in Egypt and less dramatic ones in West Virginia have demonstrated the importance of the ballot box. Moreover, some argue that the acts of the Wisconsin governor should not be protested because he was duly elected.
Yet what makes an election "free and fair" is not universally agreed upon. Professor Atiba R. Ellis at the WVU College of Law views the U.S. history of the right to vote as a constant tension “between those who wish to constrain or restrict the vote by raising the cost and those who wish to make the vote more accessible by lowering the costs." In his article, The Cost of the Vote: Poll Taxes, Voter Identification Laws, and the Price of Democracy, 86 Denv. U. L. Rev. 1023 (2009), available on ssrn, he considers the controversy over voter identification laws, including voter photo identification requirements.
Such requirements are now in force in more than half of the states, although not in West Virginia or Wisconsin. A recent bill in North Carolina, HB 430, would add that state to those requiring photo identification, a proposal discussed by a television news report earlier this month and criticized by Chris Kromm in an article for the Institute for Southern Studies.
In his article, Ellis contends that photo identification laws create an economic barrier which the lower economic classes in our society cannot surpass. He begins with an analysis of political science research models, specifically the “rational actor model of voting behavior.” Id. at 1032. The premise of this model, Ellis notes, is that “voting enacts a cost on the voter.” Id. Such costs include, primarily, economic and structural costs. Through this model, the author contends that voters must “undertake a cost/benefit analysis to determine whether they will participate in the political process.” Id. at 1033. Ellis focuses his analysis on the direct and indirect costs of voting with respect to the “willingness and ability for potential voters to comply with the legal requirements related to voting.” Id. at 1034. Direct costs “relate to the express ability to access a ballot from a governing authority,” while indirect costs are “the costs a voter has to expend to become eligible to vote,” and which include, among other things, the costs of identifying oneself as a voter through some manner of official proof of identification. Id. at 1035. Such costs, Ellis argues, are “inherent in the act of voting.” Id.
After surveying the history of voting rights cases, Ellis addresses photo identification requirements and Crawford v. Marion County Election Board, 553 U.S. 181 (2008). The decision addressed a challenge to an Indiana law that required, with some important exceptions, voters to present a photo ID in order to vote. In a 6-3 decision, with the lead opinion by Justice Stevens, the Court found that “the interests of the state in maintaining the voter-ID law outweighed any impact that the statute would have on populations who may effectively be disenfranchised by the law.” Id. at 1057. The Court in Crawford applied the test from Burdick v. Takushi, 504 U.S. 428 (1992) to the challenged election regulation, a standard that calls for balancing the magnitude of the asserted injury to protected rights with the interests put forward by the state to justify the burden imposed. Even so, “the evaluation of injury to the claimant’s First and Fourteenth Amendment rights must precede any balancing of the claimant’s rights against governmental injury.” Id. at 1052.
Ellis’s central claim takes shape with a critical view of the Burdick test exemplified by the outcome in Crawford. Specifically, courts applying the Burdick test have "tended to discount, in the absence of significant evidence, the indirect economic costs to be taken into account when analyzing the effects of voter identification laws.” Id. at 1064. Indeed, the “inability to account for the indirect costs exasperates the long-standing problem of economic bias and the requirement of an economic stake within society in order to exercise the political right to vote.” Id. While acknowledging the important state interest of avoiding voter fraud, Ellis concludes that
the interest in election integrity must be balanced with the interest in ensuring that every otherwise-qualified voter can have access to the ballot. This is the core premise of American democracy—that everyone who can rightfully vote should be able to vote. The battle of access . . . is ultimately one of ensuring that there must not be any invidious requirement which prevents votes from voting. This is the tie that binds us together in our civic society and should not be easily discounted. . . . It is to this end of preserving the value of realistically complete access to American elections for all who are eligible to vote that our laws should be directed.
Id. at 1066.
To that end, Ellis calls for a “reordering of the Burdick test,” which “should be structured to required the state to demonstrate that the means it has adopted in its voter identification laws represent a significant interest in preventing voter fraud coupled with a showing that the conditional costs—direct and indirect—to the voter are minimized in the scheme the government is implementing.” Id. at 1067. By advocating a more robust voting rights jurisprudence that takes into account indirect economic costs, Ellis hopes that “we will be able to create an enduring and greater character for American democracy.” Id. at 1068.
(with J. Zak Ritchie)
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