@NCCapitol

@NCCapitol

Fee for voter ID might be unconstitutional

Posted April 5, 2013 5:44 p.m. EDT
Updated April 6, 2013 9:37 a.m. EDT

— Some legal experts say charging people for photo identification cards in order to vote in North Carolina might violate the state constitution.

House Republican leaders unveiled their proposal Thursday for a voter ID law, and they plan to hold a public hearing on the legislation next Wednesday before beginning debate on it.

House Bill 589 would be one of the strictest voter ID laws in the country. Unlike other states, those who need IDs would be expected to pay for them if they can.

"This amounts to a poll tax, and it must be challenged," said Bob Hall, executive director of voting rights group Democracy North Carolina.

Charging someone money to vote is a poll tax, which is outlawed by the 24th Amendment to the U.S. Constitution. Other states with voter ID laws offer free IDs to anyone, regardless of their ability to pay.

Under the North Carolina legislation, people would have to pay for the ID unless they're willing to swear under penalty of perjury – a felony offense – that they're too poor to pay for it.

"If they say they have financial hardship, the same penalties of perjury apply if they misrepresent that," Rep. Tom Murry, R-Wake, said Thursday.

The voter ID bill doesn't define financial hardship, and House Speaker Thom Tillis said he isn't sure how it would be policed.

"What we're simply saying is someone who comes in who is clearly able to pay for it, then they, like the people who come in and get a driver's license, should pay the cost," Tillis said Thursday.

Hall said the proposed financial hardship oath could scare off voters who might fear being challenged and potentially prosecuted for seeking a free ID.

"What is 'financial hardship'?" Hall asked. "It's a criminal penalty that you're putting yourself at risk of. I don't think people are going to do that."

The proposal could fall afoul of the state constitution, too. 

Section 10 of the North Carolina Constitution states "All elections shall be free." But Jeanette Doran, executive director of the North Carolina Institute for Constitutional Law, said that doesn't mean free of cost.

"That means free of intimidation or coercion. It's not free in terms of dollars-and-cents concept," Doran said.

Doran, who supports voter ID, said she does not support poll taxes, but added that, in its ruling on Indiana's voter ID law in 2008, the US Supreme Court ruled that requiring a photo ID did not amount to a poll tax.

However, the ruling in the Indiana case (Crawford v Marion) does not address the question of charging voters for IDs. Actually, the fact that Indiana offers IDs at no cost is highlighted in the majority opinion as a key reason for its support for Indiana's law.

Former North Carolina Supreme Court Justice Bob Orr is also an expert on the state's constitution. He disagrees with Doran's interpretation of Section 10.

"It says, 'Elections shall be free, period,'" Orr said. "Essentially, that's not just monetarily free, but sort of a broad constitutional concept that there are not going to be impediments to people being able to vote."

Orr, Doran and Hall agree the court fight over voter ID will likely last for years – and state taxpayers will foot the bill for it.

"It's just crazy," Hall said. "It's millions and millions and millions of dollars for something that they haven't yet shown that there's a reason for government to spend money to do."