Excerpted From: Joshua Hochberg, Race and Voter ID Laws: A Review, 127 Penn State Law Review Penn Statim 31 (September 30, 2022) (119 Footnotes) (Full Document)


JoshHochbergPrior to the 2000 election, election administration was an insipid topic of interest only to election administrators and the occasional local government enthusiast. Voter identification (“voter ID”) laws, which require voters to show a form of identification before they vote, were no exception. These laws, which date back to the mid-twentieth century, were enacted by a range of states, some with Democratic majorities and some with Republican majorities.

The controversies surrounding the 2000 election brought renewed attention to the nuts and bolts of election administration. In the years that followed, both Republicans and Democrats agreed that election reform was necessary, but they disagreed on how to carry out these reforms. Democrats generally sought to decrease barriers to voting, whereas Republicans sought to ensure that only those who are eligible to vote could do so. Accordingly, election administration-voter ID laws included- became a highly partisan and contentious issue. In 2006, for example, the Federal Election Integrity Act, which would have required all voters to present a form of identification to verify their identity prior to voting, was supported in the United States House of Representatives by nearly all Republicans and opposed by nearly all Democrats. Sixteen years later, voter ID laws remain one of the most contentious issues in American politics.

According to proponents of voter ID laws, these laws are reasonable and justifiable. Supporters of these laws argue that voter ID laws prevent voter fraud and increase confidence in the electoral process. Additionally, proponents note that voter ID laws are immensely popular with the American public, ubiquitous in many peer countries, and Americans must present a government-issued ID to exercise many other rights and engage in routine behaviors, such as boarding a plane, entering most federal buildings, and completing a Form I-9 to obtain employment. In other words, voter ID laws are common-sense measures.

Opponents of voter ID laws, on the other hand, contend that these laws are unnecessary. After all, voter fraud is exceedingly rare. Moreover, there is little evidence that voter ID laws prevent fraud or increase confidence in the electoral process. Additionally, opponents note that voter ID laws in the United States are much stricter than voter ID laws in other countries, and they assert that the claim that government-issued ID is needed to exercise many other rights is greatly exaggerated. For these reasons, opponents of voter ID laws describe these measures as “a solution in search of a problem.”

However, the most common objection to voter ID laws is that they disproportionately burden voters of color. Many are skeptical of facially neutral election laws--such as voter ID laws--given America's long and dark history of employing facially neutral election laws to suppress minority voters. What is more, qualitative evidence suggests that some state legislators enact voter ID laws with discriminatory intent. For example, emails between state legislators in North Carolina indicated they viewed voter ID laws as a mechanism to decrease minority turnout, and an employee of the Wisconsin State Senate testified that Republican state senators were “giddy” that Wisconsin's voter ID law might prevent racial minorities from voting. Recently, empirical research has documented that race plays a significant role in the introduction of, and legislators' support for, voter ID laws. Accordingly, many lawmakers, civil rights leaders, and academics decry voter ID laws as racially discriminatory and akin to the poll taxes and literacy tests of the Jim Crow era.

In response to these concerns, social scientists have developed a voluminous body of empirical literature on whether, and to what extent, voter ID laws disproportionately burden voters of color. Likewise, legal literature has given ample attention to voter ID laws, with many articles focusing on topics such as outlining potential legal challenges to voter ID laws, debating the proper level of scrutiny courts should apply when adjudicating voter ID cases, and pitching fixes to voter ID laws. Yet the current legal literature has one major shortcoming: it has failed to seriously examine the empirical literature.

Thus, there is a significant gap in legal literature, which this Article fills by reviewing three questions addressed in social science literature: First, are registered voters of color less likely to possess voter ID than white registered voters? Second, are voter ID laws implemented in a racially-neutral manner? And third, do voter ID laws disproportionately suppress voters of color? Part II of this Article reviews the literature on voter ID possession rates by racial group and finds that white registered voters are slightly more likely to possess voter ID than Black and Hispanic voters. In Part III, this Article presents research on the implementation of voter ID laws, which reveals that voters of color are more likely to be asked to present their voter ID than white voters. Next, Part IV shows that, based on existing research, there is little evidence that voter ID laws disproportionately affect minority turnout. Finally, this Article concludes with a brief discussion of the limitations of existing social science research.

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Over the past two decades, many scholars, politicians, and civil rights advocates have denounced voter ID laws, arguing that these laws are more likely to burden voters of color than white voters, are not implemented in a racially-neutral manner, and disproportionately suppress voters of color. The empirical research evaluated in this Article lends credence to some, but not all, of these claims. First, registered voters of color are less likely to possess voter ID than white registered voters, although the racial gap in ID possession rates is slim. Second, voters of color are more likely to be asked to show their voter ID than white voters, even after controlling for an array of variables. And third, there is little evidence that voter ID laws disproportionately decrease minority turnout relative to white turnout.

As is the case with all research, however, empirical scholarship on the nexus between race and voter ID laws has several limitations. First, extant research likely overstates the number of registered voters who lack voter ID, as many states do not require that the ID presented to poll workers be an exact match to the voter registration database. Additionally, many registered voters who lack voter ID would not vote in the first place, even if they had voter ID. Second, the literature on the disparate implementation of voter ID laws is relatively old; the most recent inquiries on this topic rely on data over ten years old. Third, it is possible that voter ID laws do in fact disproportionately suppress voters of color, but the effects are so small that they cannot be detected. Alternatively, it is possible that voter ID laws would have disproportionate suppressive effects, but these effects are combatted by countermobilization through formal campaign efforts or grassroots organizing driven by Democrats and racial minorities who feel targeted by voter ID laws.

Despite these findings, much remains unknown. For example, despite poll workers' importance, the empirical literature on which poll workers ask for voter ID-and when they do-can only be described as paltry. In addition, researchers are only now able to examine the quantities and qualities of registered voters who want to vote but cannot do so because of voter ID laws. To this end, I hope research on the nexus between race and voter ID laws continues to flourish. Until then, however, it appears that voter ID laws will continue to disproportionately burden voters of color, although perhaps not to the extent previously feared.

Joshua Hochberg, B.A., 2022, Tufts University.