The right to vote gets a reprieve.
A 14-year battle to enact a voter ID law in Missouri hit a speed bump on Tuesday, when the state Supreme Court struck down key provisions of a 2016 law making it harder for many voters to cast a ballot.
Voter ID laws require voters to show photo ID at the polls before they can cast a ballot. Although they are often defended as a way to prevent individuals from impersonating another voter, this particular kind of voter fraud barely exists in the United States.
Meanwhile, critics of voter ID argue that they are disproportionately likely to disenfranchise students, low-income voters, and voters of color — groups that are less likely to have ID than the average voter, and that tend to favor Democrats over Republicans. The empirical data on just how many voters are disenfranchised by such laws, though, is highly uncertain.
The Missouri Supreme Court’s decision in Priorities USA v. State marks the second time that court struck down a voter ID law. In Weinschenk v. State (2006), the state Supreme Court struck down a particular restrictive voter ID law on the grounds that it jeopardized the “fundamental right to vote” protected by the state constitution.
The decision in Priorities USA, by contrast, is less of a grand pronouncement about the right to vote and more of a statement that lawmakers need to be careful when they draft legislation.
The 2016 voter ID law at issue in Priorities USA is weaker than the one at issue in Weinschenk — it allows some voters who do not have a photo ID to vote if they also sign an affidavit drafted by the state. But the affidavit is drafted poorly, and two of its sentences appear to contradict each other. Thus, the state Supreme Court determined that requiring voters “to sign a contradictory, misleading affidavit is not a reasonable means” to achieve voter ID’s supposed goals.
As a practical matter, this means that the state legislature, which is dominated by Republicans, can likely revive the voter ID law by drafting it more carefully. For the time being, however, the right to vote just got a small but significant boost from the state Supreme Court — a court, it’s worth noting, that is particularly shielded from partisan politics.
At best, voter ID accomplishes nothing. At worst, it disenfranchises numerous voters.
Voter ID laws, if they achieve anything, can only prevent one particular form of fraud: voter identification fraud at the polls. But numerous studies and investigations show that this kind of fraud is only slightly more common than fire-breathing dragons.
A study by Loyola Law School professor Justin Levitt, who led much of the Justice Department’s voting rights work under President Obama, found only 35 credible allegations of in-person voter fraud among the 834 million ballots cast in the 2000-2014 elections. A Wisconsin study found only seven cases of fraud among the 3 million cast in the 2004 election — and none of these seven were the kind that could be prevented by voter ID. In 2014, Iowa’s Republican Secretary of State Matt Schultz concluded a two-year investigation into election misconduct within his state. He found zero cases of voter impersonation at the polls.
Voter ID laws are, at best, a solution in search of a problem. Yet while voter ID laws achieve no legitimate purpose, there is some evidence that they advance a more sinister goal.
Studies examining the impact of voter ID laws are all over the map. Some find that they have no meaningful impact on voter turnout. Others found much more significant impact — such as a paper that found that “Democratic turnout drops by an estimated 7.7 percentage points in general elections when strict photo identification laws are in place,” while Republican turnout drops by only 4.6 points. During the 2012 election, data journalist Nate Silver estimated that a Pennsylvania voter ID law would have reduced “President Obama’s margin against Mitt Romney by a net of 1.2 percentage points.”
So there’s no evidence that voter ID laws do much good, and at least some evidence that they do considerable harm to the franchise. At best, the laws erect needless barriers in front of voters, and they accomplish no legitimate goal.
The Missouri Supreme Court’s latest decision is fairly narrow
Although Priorities USA is a victory for opponents of voter ID, it’s also a pretty narrow one.
In 2016, Missouri Republicans successfully pushed a state constitutional amendment that allows the state legislature to enact voter ID laws — effectively removing the 2006 Weinschenk decision as an obstacle to such laws. The GOP-controlled legislature swiftly took advantage of this new authority.
Yet the state’s 2016 voter ID law is less strict than it might have been. Among other things, it allows voters who lack photo ID to cast a ballot if they provide an alternative proof of identity — such as a “current utility bill, bank statement, government check, paycheck, or other government document that contains the name and address of the individual” — and so long as they sign a state-mandated affidavit.
But the required affidavit is poorly drafted. One sentence states that “I do not possess a form of personal identification approved for voting.” Another sentence provides that “I furthermore acknowledge that I am required to present a form of personal identification, as prescribed by law, in order to vote.”
Thus, Priorities USA held that the affidavit requirement must be struck down because it is likely to confuse voters into thinking they cannot vote unless they have an ID that they do not possess.
That’s a speed bump for voter ID supporters, but it’s unlikely to be more than that. The constitutional amendment permitting voter ID laws remains valid.
Missouri does an unusually good job of choosing Supreme Court justices
It’s worth noting that Priorities USA was not decided along party lines. Currently, the court is divided 4-3 between Democratic and Republican appointees. But one of the Republican appointees, Justice Patricia Breckenridge, crossed over to vote with the four justices appointed by Democratic governors.
One possible explanation is that Missouri does an especially good job of minimizing politics in its judicial selection process. According to the Brennan Center for Justice, the “gold standard for many in the reform community” is Missouri’s plan for choosing supreme court justices.
Under that plan, vacancies are referred to a seven-person commission that includes “three lawyers elected by the lawyers of the Missouri Bar … three citizens selected by the governor, and the chief justice, who serves as chair.” That commission selects three candidates, and the governor must choose one of the three within 60 days or else the commission will make the final decision.
The new justice will then face a retention election after a year in office, where voters decide to either keep or remove them.
It’s not a perfect system, and there are some states where the merit-selection commission was captured by a political faction. But Missouri’s system is a whole lot better than the federal system, where a partisan president chooses nominees who must be confirmed by a partisan Senate.
There is no surefire way to strip partisan politics from the judicial selection process. But there are ways to mitigate the impact of such politics. And Missouri does an especially good job of achieving that goal.
Author: Ian Millhiser
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