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Ellis on Voter Identification Laws

By Lawrence Solum

Atiba R. Ellis (West Virginia University - College of Law) has posted The Cost of the Vote: Poll Taxes, Voter Identification Laws, and the Price of Democracy (Denver University Law Review, Vol. 86, No. 3, 2009) on SSRN. Here is the abstract:

This article argues that photo identification laws represent a continuation of the use of economic forces as a way to block people of lower economic status from participation in the electorate. These laws are similar to other restrictions on the franchise, such as property requirements and poll taxes, because the rules required the voter to demonstrate the ability to meet an economic test ? the ability to show a certain property value, the ability to pay a tax, or the ability to obtain a photo ID. The potential effect of such photo-voter identification laws is that the voters at the lowest end of the socioeconomic scale are effectively excluded from voting because they are the least able to afford the cost of voting exacted by the law. This article contends that this type of exclusion is antithetical to the nature of democracy and ultimately constitutes a tyranny of the majority against the minority at the lowest level of socioeconomic status. This article begins by providing an overview of American photo-identification laws and discussing the modern cost of voting to the voter. Then it will discuss the history of voter access in the United States, with a focus on Harper v. Virginia, which held that the ability to pay a poll tax had no relationship with the right to vote and, the paper contends, articulated a vision of the right to vote unencumbered by class bias. The paper will then consider the potential socioeconomic impact of photo identification laws upon voters and how those impacts are similar to historical class-based discrimination. It will examine how the courts have been indifferent to the costs levied upon on the right to vote by voter identification laws ? most recently in the Supreme Court?s decision in Crawford v. Marion County ? and how that indifference tracks the conflict over the socioeconomic burdens of voting raised in Harper. Finally, the paper will recommend how to reframe the standards articulated in Harper to take into account this structural socioeconomic bias inherent in, and damaging to, the right to vote.

Full post as published by Legal Theory Blog on February 25, 2010 (boomark / email).