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Virginia Cracks the Code on Voter ID Laws

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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One of the most remarkable things about voting where I do, in Cambridge, Massachusetts, is that no one asks you for identification: Who you are is based on trust. But that charming civic experience may not be long for this world. Although several voter ID provisions were struck down before the 2016 election, an appeals court has now upheld Virginia’s law -- and in essence provided a road map for how states can require ID without violating the Voting Rights Act or the Constitution.

The law upheld by the U.S. Court of Appeals for the 4th Circuit resembles the laws struck down by other courts. Enacted in 2013, the law, known as S.B. 1256, requires voters to show ID, allowing them to cast provisional ballots if they don’t have it with them and to “cure” their ballots by presenting valid ID up to three days later. The state also accepts many forms of ID. What makes the law a little different from some others is that, if a voter lacks ID, the state board of elections has to issue one free -- even if the voter shows up to the board without any documentation.

You could imagine a court finding that the ease of getting an ID from the board of elections weakens the state’s claim that it’s simply trying to reduce voter fraud. But that’s not the way the case went.

A federal district court found that S.B. 1256 didn’t run afoul of the Voting Rights Act or the equal protection clause of the U.S. Constitution, because it didn’t have a disparate effect based on race or proceed from racially discriminatory intent. The 4th Circuit upheld both findings.

The plaintiffs in the case tried to prove racial disparity. Like plaintiffs in other voter ID cases, they started by showing that there’s little evidence of voter fraud in Virginia -- a reason to doubt the law’s stated intent.

Then the plaintiffs introduced expert testimony to prove that there was a gap between white residents who already have proper ID, 96.8 percent, and black residents, of whom 94.6 percent already have it. To this they added that the Republican legislature passed the law, and blacks in Virginia tend to vote Democratic.

This evidence amounted to a plausible, if thin, circumstantial case. The statistical disparity isn’t very large, although one wonders whether the numbers would be the same for Latino voters in Virginia. Yet the partisan context and the fact that the law doesn’t really seem necessary might have been enough to do the trick. Relying on not much more evidence, other courts have found voter ID laws to be racially discriminatory, at least in effect.

Here’s where the nature of the Virginia law comes in. In response, the state argued that the relevant question should not be whether blacks and whites have IDs at the same rate, but whether it’s harder for blacks to get IDs -- including the state’s special elections ID -- than for whites.

The state added that public opinion polls support a desire for voter ID, a fact which was supposed to make the law’s motivations less suspect.

The 4th Circuit bought it, citing language from Justice John Paul Stevens’s 2008 plurality opinion in a case where the Supreme Court upheld Indiana’s voter ID law against a charge of unconstitutionality. Stevens wrote that in Indiana, where there was no cost for an ID, “the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters’ right to vote.”

So the 4th Circuit judges concluded that there was no disparate racial impact, and not enough evidence to show discriminatory intent, either.

What’s most significant about the holding is that it functions as blueprint for how other Republican-dominated state legislatures can enact voter ID laws without being overturned. The key, it would seem, is to make it easy in theory to get an alternative ID. In practice, of course, there’s no telling how many people will bother.

There is a twist. In places where the disparity between white and black voters’ possession of ID is much greater than in Virginia, statistics alone might be sufficient to sway a court. That’s what happened this past summer when the 5th Circuit found that the Texas voter ID law violated the Voting Rights Act. The key was a regression analysis showing that Latinos and blacks were two and three times as likely, respectively, as white voters to be on a list of people without proper ID.

But if other courts accept the 4th Circuit’s conclusion that the real test isn’t whether a voter already has an ID, but whether it’s a burden to get one, then it’s also possible that sophisticated statistical analysis might be deemed legally irrelevant.

The Supreme Court may eventually weigh in on the Voting Rights Act and voter ID. But with a Donald Trump appointee coming -- and the 2008 case on the constitutionality of voter ID on the books -- it’s increasingly looking like voter ID laws have a path to legal permanence. That’s a meaningful change from how things looked last summer.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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