It may be time for liberals to admit that, barring a significant change in the makeup of the Supreme Court, this just isn’t a battle they’re ever going to win.
That doesn’t mean every challenge to a voter ID law should be dropped. Many of these cases are still important to pursue because the details vary from one state to another. Some laws are more restrictive than others, and it’s important for liberals to press the Court to clearly define what’s permissible and what isn’t. For instance, the Texas law (which is still working its way up to the Court) said that hunting licenses could be used as valid identification, but IDs issued by state universities couldn’t. Everyone understood why the Texas legislature wrote the law that way: hunters are more likely to be Republicans, while students are more likely to be Democrats.
Even one or two of the conservative justices might find that requirement ridiculous and strike it down. There’s also the question of what states need to do to accommodate people who don’t drive and want to get whatever substitute ID is being provided. How much can the state charge? What about people who would need to travel long distances to get to a state office? What about older people who don’t have (or never had) a birth certificate? These are questions the Court will have to decide, and liberals should be there to make their case, in order to mitigate the harm done by these laws.
But no one should fool themselves into thinking that this Court is ever going to rule that the basic requirement to present photo ID at the polls is unconstitutional.
Some liberals have held out hope that they might for two related reasons. The first is that the arguments Republicans make in support of voter ID laws are so transparently disingenuous that some liberals have thought not even a conservative justice could abide them. Voter ID laws are designed to solve a problem — in-person voter impersonation — that is spectacularly rare. They do nothing, furthermore, to combat fraud in absentee voting, which is far more common. The flip side is that the harm done by voter ID laws is potentially enormous. To take the example of Texas, when Governor Greg Abbott was attorney general, he announced that he would root out the “epidemic” of voter fraud, and his crusade managed to locate a grand total of two cases of in-person voter fraud that would have been stopped by the state’s voter ID law, while around 800,000 eligible voters in the states lacked a photo ID.
With their adorable faith in reason and evidence, some liberals thought that these facts would be impossible for the justices to ignore. But they weren’t, and they won’t be.
So where does that leave liberals and Democrats? The best-case scenario in this round of lawsuits is that the Supreme Court upholds the requirements to show ID at the polls (which it has since 2008), but also mandates that states make such requirements less onerous. So liberals have to acknowledge that this is primarily a legislative battle, not a legal one. Last week Oregon passed a law providing that everyone who gets a driver’s license or other ID from the state DMV will automatically be registered to vote unless they opt out. It should be the first of a wave of state laws to make registering and voting as easy and universal as possible.
Conservatives may have won the battle over voter ID. But liberals can still win the war over voting.