Constitutional Law - Voting Rights - Tennessee Supreme Court Upholds Voter Identification Law as Permissible Burden on State Right to Vote

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CONSTITUTIONAL LAW--VOTING RIGHTS--TENNESSEE SUPREME COURT UPHOLDS VOTER IDENTIFICATION LAW AS PERMISSIBLE BURDEN ON STATE RIGHT TO VOTE.--City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn. 2013)

In 2012, a voter identification law went into effect in Tennessee requiring voters to present photo identification before voting in person on election day (1) --the first law of its kind in Tennessee. (2) Recently, in City of Memphis v. Hargett, (3) the Tennessee Supreme Court upheld the photo ID requirement under the Tennessee Constitution, both facially and as applied to the plaintiff-voters, on the ground that the burdens placed on voting did not outweigh the state's interest in ensuring election integrity. (4) The case provided the Tennessee Supreme Court with its first opportunity to establish a standard of review governing the "right of suffrage" provision in the Tennessee Constitution. The court should have used this opportunity to firmly establish strict scrutiny as the appropriate standard of review for voter ID laws that substantially burden the right to vote, instead of merely "assum[ing], rather than decid[ing], that strict scrutiny applie[d]." (5)

In May 2011, the Tennessee legislature enacted the Tennessee Voter Identification Act, (6) which mandated that Tennessee voters present a state approved form of photo ID (7) in order to cast an election ballot. (8) Certain groups of voters were exempt from the requirement. (9) Additionally, voters without proper photo ID could cast a provisional ballot, which would be counted only if the voter provided a state-approved form of ID to a state election office within two days of the election. (10) Soon after the law's enactment, the Tennessee Division of Elections notified every registered voter in possession of a nonphoto ID card of the new ID requirement. (11) In July 2012 the City of Memphis began offering photo IDs through the city library system to be used in the August 2012 primary election. (12) Daphne Turner-Golden and Sullistine Bell obtained these new library cards and attempted to vote with them in the August primary but were denied because the library cards were not a valid form of ID. (13) Though both voters cast provisional ballots, they were told their votes would not count unless they presented a valid photo ID within two days of the election. (14)

Following the August primary, the two voters filed suit in Tennessee state court, seeking injunctive relief against the State Coordinator of Elections, the Secretary of State, and the Tennessee Attorney General on the ground that they could not obtain proper photo ID before the November general election without undue burden. (15) The trial court held that the plaintiffs lacked standing to challenge the photo ID requirement, that the complaint failed to assert an as applied challenge, that the law was facially constitutional, and that the City of Memphis was not an "entity of the state" able to issue photo voter ID cards under the act. (16)

The Tennessee Court of Appeals affirmed in part and reversed in part. (17) Writing for a unanimous panel, Judge Bennett (18) upheld the trial court's ruling that the voter ID law was facially constitutional, (19) but reversed the judgment by holding that the plaintiffs had standing and that the Memphis library cards qualified as valid photo ID. (20) The court found that the voter ID law was not an impermissible additional "qualification" on the right to vote in violation of the Tennessee Constitution since the presentation of photographic evidence was "merely regulatory in nature" and not a true "qualification." (21) The court ordered Shelby County to accept the library-issued ID cards as valid identification during the November election. (22)

The Tennessee Supreme Court affirmed the voter ID law's constitutionality. (23) Writing for the court, Chief Justice Wade (24) found that the law was not an undue burden on the plaintiffs' right to vote and upheld the law's constitutionality both facially and as applied. …