Are Voter ID Laws Legal?

By Stephanie Rabiner, Esq. on January 05, 2012 | Last updated on March 21, 2019

Voter ID laws have been around for quite a while, but they're back in the news as we near the mid-term elections. Voter ID laws can vary from state to state, and the Justice Department and some courts have rejected new voter ID laws, which require government-issued photo identification at the polls.

So why do we have voter ID laws, and why are some of them legal and some not?

Identifying the Problem

Voter ID legislation is ostensibly designed to prevent voter fraud, but some say it discriminates against minorities, the poor and the elderly. In fact, studies show that the type of voter fraud these laws are meant to address almost never happens. Even so, about half of all states impose some kind of identification requirement at the polls. So are all voter ID laws legal?

To begin, voter ID laws fall into one of three categories:

  1. Non-Photo ID: voters can present any official paperwork with a name and address, such as a bank statement or utility bill.
  2. Photo ID: signed affidavits or other identifying paperwork will still suffice.
  3. Strict Photo ID: government-issued photo ID only. Voters can cast provisional ballots and return to verify their identity.

Validity of ID Laws

The Supreme Court recently upheld Indiana's Voter ID law -- which fell into the third category-- in Crawford v. Marion County Election Board. The state, citing voter fraud, passed a law requiring government-issued ID at the polls, yet allowed the unidentified to cast a provisional ballot and then return within 10 days to show valid ID.

The court was split. Three justices said it was unconstitutional. Three said the voter ID law was legal, as it posed only a "minimal and justified burden." And three said that there was no "facial challenge" to the law as written.

Together, these last two groups upheld the law. However, the indecisiveness of that last group left the legality of voter ID laws up for debate. It's possible that, as applied, a voter ID law may not be legal. But until that happens, voter ID laws will be enforced.

Local and State Statutes

For the upcoming midterm elections, 34 states now require some form of ID at the polls, and many states have recently changed their ID requirements. Arkansas and now requires a government-issued photo ID; Iowa requires photo ID, or a signed affidavit of residency; Texas has seven different forms of accepted identification, or an affidavit attested to why you couldn't get one of those; and North Dakota requires verification of a current address, a requirement that has been challenged by Native American residents.

Make sure you consult your local voter ID laws before going to the polls, and contact an experienced civil rights attorney for help.

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