The conservative case against voter ID laws

The best case against the recent spate of GOP-sponsored voter ID photo laws disenfranchising voters can be traced back to two of the most revered Republicans in recent history, President Ronald Reagan and Chief Justice Warren Burger, a Richard Nixon appointee to the Supreme Court.

Marco Calderon/ACLU/Handout/Reuters
Viviette Applewhite, a 93-year-old woman who sued Pennsylvania over the state's voter identification law, is seen outside her apartment in Philadelphia Aug. 9. Op-ed contributor Nicolaus Mills says 'Pennsylvania’s new voter ID law raises the long-term question of how we want the winning and losing parties in 2012 to view each other after the election. Do we want them willing to work together or torn by recrimination?'

Pennsylvania’s Republican-sponsored law requiring voters to have a government-issued photo ID has passed its first legal test Aug. 15, when a judge upheld the law. While the state Supreme Court is set to hear the case in September, many Democrats in the state – and beyond – are worried.

They are right to be. Their supporters are the ones most likely to be driven from the polls by the new voter ID photo laws that Republicans have passed in Pennsylvania and several other states over the past few years.

The irony is that the best case against the new voter ID photo laws can be traced back to the thinking of two of the most revered Republicans in recent history, President Ronald Reagan and Chief Justice Warren Burger, a Richard Nixon appointee to the Supreme Court.

The relevance of Reagan’s and Burger’s thinking becomes clear when we examine the Pennsylvania law. On the surface, the law seems neutral, even beneficial in its purported aim to prevent voter fraud. But the law is anything but neutral in the effect it will have on 9.2 percent of Pennsylvania’s eligible voters – 758,000 in all – who don’t have a photo ID from the state’s Department of Transportation.

The injustice the law claims it would remedy, voter impersonation at the polls, is, for all intents and purposes, nonexistent in Pennsylvania and throughout the country, as a recent Carnegie-Knight study showed. Very real, on the other hand, is the fact that those who lack a state-issued drivers license or other ID are typically minorities, the poor, and the elderly, who often don’t own cars.

In heavily Democratic Philadelphia, 18 percent of registered voters are without a current driver’s license, and nationwide, according to the Brennan Center for Justice at New York University School of Law, 25 percent of African-Americans and 18 percent of all Americans over 65 lack the kind of government-issued ID that will let them vote under the new, restrictive state laws.

Getting such a license, especially for a voter missing an in-state birth certificate, can be a time-consuming process. In Pennsylvania, Republican House Majority Speaker Mike Turzai has made no secret of the partisan nature of the state’s voter ID photo law. It will, he told a Republican gathering in June, “allow Governor Romney to win the state.”

This kind of calculation is exactly what President Regan and Justice Burger opposed. Reagan made his views clear in 1982 when he signed into law a 25-year extension of the Voting Rights Act of 1965.

Key to that act is its section two, which forbids any “standard, practice, or procedure” that abridges the right to vote on account of race or color. In 1982, section two was amended in a way that speaks directly to Pennsylvania today. A forbidden “standard, practice, or procedure” no longer had to be enacted with an invidious racial purpose. It was enough for it to deny “equal opportunity” to minority voters.

As he signed the strengthened Voting Rights Act with Republican Senators Orrin Hatch and Bob Dole close by, Reagan made a point of giving the new law his full endorsement: “As I’ve said before, the right to vote is the crown jewel of American liberties, and we will not see its luster diminished.” His observation differs radically from the tone of Mr. Turzai’s remarks on the impact of Pennsylvania’s voter ID laws.

The quieter challenge Chief Justice Burger offers to Pennsylvania’s voter ID photo law is most visible in the opinion he wrote in 1971 for a unanimous Supreme Court in the case of Griggs v. Duke Power Company. The case provided an early test of the employment provisions of the 1964 Civil Rights Act.

In Griggs the court struck down a Duke Power Company practice that prevented many African-American workers from being hired by requiring that they have a high school degree or pass an intelligence test for jobs the record showed needed neither qualification to be done well.

It did not matter, Justice Burger emphasized, that there was “no showing of a racial purpose or invidious intent” on Duke’s part. Its requirement violated the 1964 Civil Rights Act because it provided “headwinds” against minorities seeking work.

Though Burger’s opinion referred to employment and hiring practices, his observation applies well to Pennsylvania’s new voter ID law: a discriminatory “effect” makes a practice unjust, whether or not it was devised with a discriminatory “intent.” Pennsylvania’s law certainly creates “headwinds” against many minorities seeking to vote.

Equally important, Pennsylvania’s new voter ID law raises the long-term question of how we want the winning and losing parties in 2012 to view each other after the election. Do we want them willing to work together or torn by recrimination?

In 1982, President Reagan concluded his signing of the new Voting Rights Act by pointing out that the amended law was a product of compromise – proof, he told those gathered in the East Room of the White House, “that differences can be settled in good will and good faith.”

Would that America’s political parties felt the same way today about making it as easy as possible for as many as possible to vote in an election certain to be decided by a razor-thin margin.

Nicolaus Mills is a professor of American Studies at Sarah Lawrence College and author of “Winning the Peace: The Marshall Plan and America’s Coming of Age as a Superpower.”

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