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If Voter ID Referendum Passes, Can It Survive A Legal Challenge?

David Boraks

Morning Edition host Marshall Terry has related report about the politics behind the Voter ID referendum proposal.

A bill filed by Republican legislative leaders last week would let voters decide whether to add a constitutional amendment to require photo IDs at the polls. A federal court shot down a previous attempt at Voter ID laws in North Carolina. If the question gets on the ballot this fall and passes, would it stand up to a legal challenge?

Legal experts say there's nothing inherently unconstitutional about Voter ID laws - 34 states have them. The issue is the motivation behind the laws.  

“What makes them unconstitutional is if they're adopted with an intent to discriminate against a particular racial group, or racial groups,” Duke University Law School professor Guy Charles said.

That was the main issue two years ago when the U.S. Fourth Circuit Court of Appeals overturned North Carolina's 2013 voter ID law. A three-judge panel said the law appeared to suppress voting by African Americans, who tend to vote Democratic and may be less likely to have government photo IDs.

To University of Richmond law professor Carl Tobias, the question of intent remains, even if it's a referendum on a constitutional amendment to require Voter IDs.

“The Fourth Circuit was very critical, talking about targeting African-American voters with surgical precision," Tobias said. "And if the same panel were to hear it, I think the court might be inclined, or somewhat suspicious, of the motives of the North Carolina legislators."

Still, Tobias said, a statewide referendum also might be a good strategic move by Republicans.

“Putting it to the voters also might insulate it better from review,” he said.


Other experts note that when it comes to race and voting rights, federal courts can still review state laws, no matter how they become law.

Whether there's a difference if the legislature turns it over to a referendum of the people, "I don't know,” said Bob Joyce, a professor at the University of North Carolina School of Government.

“I suspect that there's not a difference," Joyce said. "The federal law is superior to what the state of North Carolina does, whether it's the legislature doing it or whether it's a referendum of the voters.”

The Fourth Circuit recognized that race may have played a role in the past under Democratically controlled legislatures as they sought to expand voting access, said Joyce. But the judges saw a difference with Republicans. Joyce pointed out this section of the 2016 decision:

"When a legislature dominated by one party has dismantled barriers to African-American access to the franchise, even if done to gain votes, politics as usual does not allow a legislature dominated by the other party to re-erect those barriers."


House Bill 1092 still has a long way to go before the referendum gets on the ballot. The House has referred it to the elections committee. But if it does get on the ballot and voters approve it, a new Voter ID law is also expected to face a legal challenge from civil liberties, social justice and Democratic-leaning groups.

There are precedents for federal courts overturning state referendums. Colorado's Initiative 2 is a prime example. In 1992, voters approved a state constitutional amendment to make it illegal for local governments to enact legal protections for LGBT people. In a landmark case, the U.S. Supreme Court ruled the amendment unconstitutional. 

“And part of the reason why the court struck it down is it says look there's really no reason to adopt that law, except that you were engaged in discrimination,” Duke’s Guy Charles said.

In cases like that, Charles said, the court can look at campaign ads, speeches and other evidence that shows the intent of supporters.  

Republican House Speaker Tim Moore said there's nothing discriminatory about the referendum, or Voter IDs.

“Not at all," Moore said on Spectrum News. "States that have adopted voter identification laws have seen zero decrease in voter participation. In fact, most have seen an increase in voter participation."

There may be another avenue for challenges. The referendum only says that a photo ID is required - without specifics. If voters approve, the legislature would then have to enact a law spelling out what kind of ID would be required. If it's stringent, like for example a government ID, that could be deemed overly restrictive. If it's broader, allowing student or work IDs, it could survive a challenge, the experts say.  


Republican leaders say they expect lawmakers to approve the bill, putting a Voter ID referendum on this fall's ballot. They also say that it has a good chance of passing.

Polls by WRAL and Elon University in recent years have shown a majority of North Carolina voters support Voter ID, at least in principle.  That may be a major reason why Republicans are pushing the issue now, Davidson College political science professor Susan Roberts said.

“One very simple fact is it will pass," Roberts said. "And I think that is because, if you look at a midterm election, the voters are disproportionately white, older and more educated."

She also said the question is simply worded - even if it leaves unanswered a potentially sticky question about what kind of ID would be required.


Republican leaders argue the law is needed to guard against voter fraud. Roberts said that's a favorite issue for the party's base. But she said claims of voter fraud are grossly exaggerated.

“The Trump administration and Trump himself has have really said that this is a critical problem," Roberts said. "It's just not the case. Voter fraud is not prevalent. It is almost negligible."

Roberts and other political scientists think the referendum may be more about boosting turnout among the Republican base. Catawba College political scientist Michael Bitzer said the party may also try to put other referendums on the ballot this fall.

“I think they are really trying to ensure that their base of voters shows up," he said. "The big question is: Is there enough energy and enthusiasm about these topics to kind of blunt what looks like a Democratic wave coming through the state and the nation?"

So far, no hearings or votes have been scheduled on the Voter ID bill.  

David Boraks previously covered climate change and the environment for WFAE. See more at www.wfae.org/climate-news. He also has covered housing and homelessness, energy and the environment, transportation and business.