JURIST Guest Columnist Charles W. “Rocky” Rhodes, of the South Texas College of Law, analyzes valid and invalid grounds for challenging the Texas voter photo identification law under the Texas Constitution

The Texas voter photo identification law, which requires qualified, registered voters to present one of seven specified forms of picture identification for a vote to be counted, is under attack. In Veasey v. Perry, the US District Court for the Southern District of Texas invalidated the law on several federal grounds, including that it was an unconstitutional burden on the right to vote, an unconstitutional poll tax, and a prohibited dilution of minority voting rights under the federal Voting Rights Act [PDF]. Although the US Court of Appeals for the Fifth Circuit stayed the implementation of the district court’s holding, the stay was “based primarily on the extremely fast-approaching election date,” not the appellate court’s preliminary assessment of the merits. On another front, Judge Lawrence Meyers of the Texas Court of Criminal Appeals, who is currently running for the Supreme Court of Texas, filed his own suit, Meyers v. State, challenging the law solely under the Texas Constitution. But his lawsuit—at least as currently fashioned—illustrates the dangers of state constitutional rights litigation without an appreciation of basic structural principles distinguishing state and federal constitutional claims.

The allegations in Meyers’ lawsuit run afoul of state constitutional structural precepts at the heart of the American system of dual sovereignty and divided powers. The federal government possesses only the limited and enumerated powers detailed in the US Constitution, which means that any legislation adopted by Congress without constitutional authorization is void. Yet state legislatures hold an inherent power to govern, subject only to limitations imposed by federal law and the state’s constitution. As the Texas Supreme Court explained in Government Services Insurance Underwriters v. Jones, “The power and authority of a state legislature is plenary and its extent is limited only by the express or implied restrictions thereon contained in or necessarily arising from the Constitution itself.”

So the question in challenging state legislative power under the Texas Constitution is not whether the act is authorized by the state constitution, but whether the act is barred by it. Meyers nonetheless alleges in his petition [PDF] that “the Voter-Identification Requirement far exceeds the Texas Legislature’s power under the Texas Constitution to detect and punish election fraud.” But this allegation is meaningless under the appropriate issue: whether the Texas Constitution prohibits the legislature from enacting a picture identification requirement for voting. And the state constitutional provision Meyers identifies to support his argument, article VI, section 4, does not establish such a bar: “In all elections by the people, the vote shall be by ballot, and the Legislature shall provide for the numbering of tickets and make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box; and the Legislature shall provide by law for the registration of all voters.” This language does not preclude a voter picture identification requirement, but rather establishes a legislative duty to preserve the purity of the ballot box, detect fraud and establish a voter registration scheme. Even though the voter photo identification law appears to exceed the scope of the legislature’s duty, section 4 nowhere restricts the legislature from using its plenary power to enact additional electoral regulations.

Meyers fares better in identifying a state constitutional limitation under article VI, section 2 of the Texas Constitution, which provides that every US citizen who is a resident of Texas and not disqualified by age, mental incompetence or felony conviction is a “qualified voter” with a “privilege of free suffrage” to vote at an election once registered to do so. While prior Texas cases have not always fulfilled the extent of this promise, this constitutional provision textually indicates that the legislature is not to interfere with the voting rights of registered qualified voters. A forceful argument can be made that, based on the plain meaning of this text, the state’s photo identification law infringes upon the privilege of free suffrage of those over 500,000 registered and qualified Texas voters who do not have one of the seven types of photo identification now necessary to vote.

But Meyers is not the appropriate individual to bring this claim under another fundamental state constitutional law principle—limitations on state judicial power. Although state courts are not governed by the “case” or “controversy” requirement of Article III of the US Constitution, state courts typically articulate their own justiciability doctrines to ascertain those disputes properly arising within the judicial power. Texas is no exception, with its courts long adhering to doctrines of self-restraint limiting the types of cases appropriate for judicial resolution to those involving mature, presently existing claims involving a real controversy between the parties that can be redressed by the judiciary. One of these restraining doctrines is standing. As explained by the Supreme Court of Texas in Texas Association of Business v. Texas Air Control Board, standing examines whether the plaintiff is the appropriate party to bring suit under separation of powers principles and the state’s “open courts” provision, which guarantees access to the courts only to those litigants suffering an injury.

Meyers has not satisfied the usual “injury” requirement for standing. Nowhere has he alleged that the state’s photo identification law will prevent him from voting (presumably because he has one or more of the forms of photo identification required by the law). While he hints at the possibility of an act of “civil disobedience” in refusing to show his identification, this speculative conjecture is not enough to establish an actual or imminent harm. His other claimed injury—that the law creates a presumption that he is a felon guilty of election fraud if he does not present the required identification—is difficult to square with the terms of the photo identification law, which would allow him to cast a provisional ballot that will be counted if he presents one of the accepted forms of identification within six days to the voter registrar.

Meyers next contends that Texas law does not require him to prove injury, only standing. While he is correct that Texas, like most states, recognizes limited exceptions when a particularized injury is not required, these exceptions require pleading and proof—and Meyers has failed on both counts. He cannot claim standing as a taxpayer, for instance, because he has failed to even allege that the state is illegally expending funds as a result of the photo identification law. Nor has he alleged that any statute authorizes his standing irrespective of whether he has been injured. In short, he has ignored the limits on the state’s judicial power and brought a claim that is a non-justiciable generalized grievance.

While his suit likely will be dismissed, this does not mean that the Texas voter photo identification law comports with the Texas Constitution. In a suit by an appropriate party, against the appropriate officials charged with implementing the law, meritorious state constitutional arguments are available, going beyond the federal claims ruled upon by the federal district court. Hundreds of thousands of registered Texas voters satisfying all the state constitutional qualifications to vote are being denied their suffrage rights because they do not have one of the seven forms of picture identification the law requires. Despite common misconceptions, these forms of identification are not necessary to conduct daily life: photo identification is not required, for instance, to conduct banking business under federal regulations, or always to travel by airplane under TSA regulations.

Nevertheless, registered, constitutionally qualified voters without the required forms of identification must now pay to obtain (unless already in possession of an official birth certificate) the needed records for the issuance of a photo identification in order to exercise the most basic of democratic rights. There is no pressing need for this restriction on the right to vote: the type of fraud sought to be prevented by voter photo identification, voter impersonation fraud, is exceedingly rare, with only two known cases (out of more than 20 million votes cast) in Texas in the decade before this law was enacted. The photo identification law thus appears to contravene both the explicit text and the spirit of the Texas Constitution, which protects the suffrage rights of constitutionally qualified, registered voters, irrespective of their ability to pay. But any such challenge under the Texas Constitution can only be made through an appropriate lawsuit, comporting with state constitutional first principles regarding state legislative and judicial power.

Charles W. “Rocky” Rhodes is the Vinson & Elkins LLP Research Professor and Professor of Law at South Texas College of Law in Houston, where his teaching and scholarship centers on constitutional law, state constitutional law and procedure. He is the author or co-author of several constitutional law books, including a state constitutional law textbook and a forthcoming state constitutional law treatise.

Suggested citation: Charles W. “Rocky” Rhodes, State Constitutional First Principles in Challenging the Texas Voter Photo Identification Law, JURIST – Academic Commentary, Oct. 29, 2014, http://jurist.org/academic/2014/10/charles-rhodes-texas-voterid.php.