Did Photo ID Law (and AG) Ignore State Constitution?

A News Sentinel editorial:
The fight over Tennessee’s controversial voter ID law has centered on its compliance with the U.S. Constitution, but the real battlefield might lie closer to home.
A judge in Madison, Wisc., recently ruled that Wisconsin’s voter ID law violated that state’s constitution. While the Wisconsin Supreme Court likely will have the final say upon appeal, observers in Tennessee should look closely at the similarities between the two states’ constitutions and gauge the ramifications of a similar ruling in the Volunteer State.
In Wisconsin’s constitution, the only classes of people barred from voting are felons and those judged by a court to be incompetent. The Legislature can enact laws to define residency, provide for registration and absentee voting, and extend the right of suffrage to other classes.
Dane County Circuit Judge Richard G. Niess ruled earlier this month that Wisconsin’s voter ID law created a new class of voters denied the right of suffrage — those without photo IDs.
Tennessee’s constitution bans only felons from exercising the right to vote. Article IV, Section 1 of the constitution establishes the qualifications for voting in Tennessee: age, U.S. citizenship, state residency and registration. The section’s first paragraph concludes that “there shall be no other qualification attached to the right of suffrage.”
If a challenge makes its way through the Tennessee courts, a ruling that Tennessee’s voter ID law adds an unconstitutional qualification for voting is not inconceivable.

Tennessee’s constitution does allow the Legislature to write laws to secure “the purity of the ballot box,” but it’s difficult to see how any such law could pass constitutional muster if it simultaneously creates a new qualification for voting.
Most opponents of the Tennessee law have objected to it because they claim it violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. They argue that the law throws up a barrier to voters who don’t have an approved form of identification. The U.S. Supreme Court in 2008 upheld Indiana’s voter ID law based on the its compliance with the 14th Amendment. Like the Indiana, statute, Tennessee’s law requires the state to provide a free photo ID in some circumstances.
State Attorney General Robert E. Cooper Jr. issued a non-binding opinion last year that Tennessee’s law would be constitutional if the state provided free photo IDs. Cooper relied primarily on the Equal Protection Clause of the 14th Amendment, the U.S. Supreme Court decision on the Indiana case and Article XI, Section 8 of the Tennessee constitution, which he wrote “confers ‘essentially the same protection’ as the Equal Protection Clause.” Remarkably, Cooper’s seven-page analysis did not even consider the constitutionality of adding a qualification to suffrage.
The right to vote is fundamental to democracy, and the courts likely will decide in the end if the Legislature overstepped its bounds by allowing voter suppression in the name of combatting voter fraud.

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