The Role of State Constitutions in Protecting Voting Rights: Voter Identification Laws

Michelle M. Munoz, Stanford Law School

Abstract

ABSTRACT: Photo identification state laws, requiring registered voters to show photo identification in order to have their vote counted, raise civil rights concerns over the disenfranchisement of elderly, indigent, and minority voters. The U.S. Supreme Court has upheld at least one such state law, essentially closing the door to those who would seek to protect voting rights under the U.S. Constitution. Yet, several state appellate courts have struck down such laws under their state constitutions. As a result, state constitutions provide an avenue for relief to disenfranchised voters. This Note calls attention to the ability of state constitutions to protect voting rights through two mechanisms unique to state constitutions. First, equal protection clauses in many state constitutions trigger more robust review than under the Fourteenth Amendment of the U.S. Constitution. While the federal constitution applies a sliding scale of review, many state courts review voting restrictions under a strict scrutiny analysis. Second, where a state constitution establishes the exclusive list of requirements necessary to vote, identification laws create an impermissible substantive change to these constitutionally-enshrined requirements. Such laws would be invalid without being passed as constitutional amendments. These distinct elements in state constitutions highlight the opportunity for voting rights advocates to successfully challenge voter identification laws in state courts.