Note: this column first appeared in The Hill.
It's been a good couple of weeks for voting rights. Judicial opinions have struck down or limited strict voter ID laws in several states, showing that politicians cannot be trusted to write laws that effect our elections.
In the past two weeks, courts in Wisconsin, Texas, and North Carolina have rooted out partisan abuses by invalidating or limiting strict voter ID laws. These decisions show that politicians do a poor job of crafting election rules. Most often, the main motivation is to discriminate against members of the opposite political party, often with racial overtones as well. Indeed, North Carolina argued (unsuccessfully) that benign politics, not race, motivated its voter ID law. But why should the issue of how best to run our elections turn into partisan warfare? Why must litigants and the courts spend their resources to root out these abuses?
Politicians think they can win by rigging the election system in their favor. A Republican staffer in Wisconsin revealed that state Republicans were "giddy" when they passed a new voter ID law that they believed would help Republicans win in the state. A Pennsylvania lawmaker was quoted in 2012 saying that the state's new voter ID law would help win the state for Governor Romney. Democrats have sued Arizona because they fear that the state's voting rules will harm their supporters come November.
Election laws should be above politics. Whether to enact an election regulation should be about only one thing: will the law improve the democratic process for all voters? Yet the history of voter ID laws, among most significant and partisan issues infecting our elections, has always involved politics.
As I recount in a new book, Republican Senator Kit Bond of Missouri slipped a voter ID provision for first-time voters who register by mail into the federal Help America Vote Act of 2002, Congress's overall response to the 2000 presidential debacle, marking the country's first voter ID law. His stated goal was to root out supposed fraud that had occurred during the 2000 Senate election in Missouri between Republican John Ashcroft and Democrat Mel Carnahan (who died a few weeks before the election), which Carnahan won by only a handful of votes. On Election Night, Bond appeared at a Republican rally and pounded the podium, screaming "this is an outrage!" He blamed dogs and dead people voting for Ashcroft's loss. During the Congressional debate over HAVA, he spoke of a Springer-Spaniel named "Ritzy Mekler" who was supposedly registered to vote in St. Louis. (There is no evidence that Ritzy ever actually voted.) Yet Bond never pointed to a single instance of in-person voter impersonation, the only kind of voter fraud that an ID law can address. His impetus for the law was political: Ashcroft's close loss in 2000.
States then took Bond's lead, passing their own, stricter voter ID laws. But this activity occurred only once Republicans took charge of state legislative houses. In 2004, Indiana Republicans won both state houses and the Governor's mansion for the first time since 1982, and they quickly went to work on a voter ID provision. Then-Secretary of State (and now Congressman) Todd Rokita took the mantle, as did then-Senator (and now Indiana Secretary of State) Connie Lawson. They claimed that the law would root out voter fraud, but when I pressed them in interviews years later, they still could not identify any instances of in-person voter impersonation in the state's elections. Political gain was the underlying, if unstated, motivation.
Democrats, for their part, fought the new law vigorously, arguing that burdens of the voter ID rule would fall disproportionately on certain voters - conveniently those more likely to vote for Democratic candidates, such as minorities, poor people, and the elderly. The Supreme Court ultimately upheld Indiana's voter ID law in 2008, but it left the door open to future legal challenges, which have continued to this day as more and more states have passed strict voter ID requirements.
And it is not just Republicans who are at fault. Democrats, too, enact rules they think will help them at the ballot box. From redistricting maps that entrench Democratic majorities in Maryland and other states to ballot access rules that make it harder for outsiders to mount successful challenges to mainstream candidates, Democrats also too readily consider partisan ramifications in adopting election laws.
The solution is to explicitly remove partisan considerations from election rules. Courts should look beyond the mere general justifications of "improving election integrity" to the true motivation for a voting law. If the actual, underlying rationale for a law is to create a partisan effect, then courts should invalidate the law as violating the fundamental right to vote - unless the law actually expands the franchise for all voters in a non-discriminatory fashion. The North Carolina court did just that, making the extraordinary finding that the Republican-led state legislature had one main purpose when enacting its restrictive voter ID law: racial discrimination, albeit as a means of achieving partisan gain.
On a broader scale, we need to remove the foxes from guarding the henhouses and take election administration away from partisan operatives. There is no reason to have an ideological, elected official as a state's election head. Legislators should also exhibit restraint, recognizing that they do the public a disservice when they enact election rules for partisan gain. The public should vote for candidates who pledge not to use their office to entrench themselves in power.
The voter ID rulings in Wisconsin, Texas, and North Carolina were positive developments, striking down laws that state legislatures enacted for political reasons. But the courts should have said explicitly that politics is an invalid rationale for election laws. Voter ID laws began with a partisan motivation. It is time to remove that partisanship from our election rules.
Professor Joshua A. Douglas of the University of Kentucky College of Law is a leading election law expert, whose research focuses on the constitutional right to vote, election administration, and post-election disputes. His latest co-edited book, Election Law Stories, tells the behind-the-scenes stories of the Supreme Court's major election law cases.