Voter Restriction Laws: Necessary, Unconstitutional, or Both?

by Carmen Weaver

March 15, 2017

Cover Photo Credits

Growing up in public school in my, red, white, and blue hometown, I was instilled with a belief in the grand ideals of American democracy like freedom, equality, and self-determination. The right to vote was perceived as the embodiment of those basic ideals. Likewise, I thought, that by 2017, the right to vote was truly a universal and unlimited Constitutional right – the one thing uniting all Americans. However, as I gained education and life experience, I realized my rosy, idealistic view of democracy was a bit naïve.

When trying to work out the details of any kind of realistic governing system, we soon find that no right, not even the right to vote, is without limits or controversy, no matter how basic or straightforward that right appears to be. Unfortunately, like with literacy tests and poll taxes, limits and restrictions on voting can and have been used to intentionally disempower particular groups as a way to institutionalize particular prejudice or gain political power. However, sometimes restrictions may be necessary for the right to even exist or to hold any weight. For example, rules and regulations regarding the day a ballot can be cast, whether a ballot can be cast via mail or at a designated polling place, and the requirement for voters to identify themselves at the polls are commonplace and arguably necessary to preserve the legitimacy of our elections. Preserving the legitimacy of elections is necessary for the right to vote to actually represent equality and self-governance. However, even if limits are justifiable or necessary, people will inevitably disagree about what those limits should or need to be. Moreover, the same regulations that may be intended to protect the integrity of the election process, could inevitably disenfranchise certain groups. In that case, attempts to protect the sacred democratic right, could also strip it away. But, where is the balance?

This very argument is currently being fought in federal courts. In the last few years, lawsuits have been brought against several states alleging that legislation requiring voter identification at polling places is discriminatory against minorities and a violation of the federal Voting Rights Act.  Just last month the Supreme Court declined to hear appeals by the state of Texas asking the Court to overturn a Fifth Circuit ruling striking down a Texas voter ID law. Texas argued that its law simply protected the integrity of its elections by preventing voter fraud while challengers claimed it disproportionately disenfranchised a significant number of voters who are African American, Hispanic, and poor. So far, the courts are saying these restrictions have, whether intentionally or not, unconstitutionally disenfranchised minority voters. Regardless of whether you view Texas’ arguments as legitimate or not, this decision implies that the circuit court sees disenfranchisement of minority groups as a greater threat to the legitimacy of our elections than protecting against the kind of voter fraud the state of Texas fears and asserts is happening. However, this battle is far from over. Although the Supreme Court declined to hear argument at this time,  Chief Justice John Roberts issued a statement suggesting that the Court might reconsider the case after seeing how additional proceedings in the lower courts pan out. At the very least, this suggests that there is no clear consensus in this case. Even for the highest court in the land, deciding the limits necessary to protect the right to vote without eroding it in the process is a complicated task full of nuance and disagreement. Chances are, this balancing act is a task that will continue as long as our democracy endures.

Carmen Weaver is a 1st year MPP Student at the College of William & Mary and an Associate Editor of the William & Mary Policy Review.