How Courts Analyze Voter Identification Laws under the First Amendment

Some scholarship and political experts describe voter ID laws as a form of voter suppression because they make it harder for certain groups of people to vote. First, this thesis considers the historical backdrop of voter discrimination resulting in the passage of the Voting Rights Act of 1965, and subsequent state uses of registration and voter ID laws. Then, this study reviews the theoretical foundation of freedom of expression as developed by Thomas Emerson and individual and social free expression values, including the social value of self-governance explicated by Alexander Meiklejohn. Some scholars also suggest that voter ID laws may be more closely scrutinized by courts if challenged under explicit provisions of state constitutions that grant voters a fundamental right to vote. This thesis begins its analysis by examining state voter ID laws that the National Council of State Legislatures identified in effect in 2018. Next, the study reviews how courts analyzed voter ID laws since the U.S. Supreme Court’s approval of a strict ID law in Crawford v. Marion County Election Board in 2008. Overall, this thesis found only a few examples where courts used First Amendment rationales and any associated free expression values when addressing ID laws. More commonly, courts applied the Burdick balancing test as prescribed by Crawford to uphold the law using two common rationales, either the plaintiff did not meet their burden of proving a significant burden on voters or the state’s interest of preventing fraud outweighed any burden on voting rights. Finally, this thesis recommends that all courts review voter ID laws under a strict scrutiny analysis with the state having the burden of proof and demand that states justify why certain types of photo IDs are deemed unacceptable