Would Tennessee's 2011 voter photo ID bill (HB 0007/SB 0016), which requires in-person voters to show photo identification but does not provide a free state-issued ID for those who lack one, survive constitutional challenge as a poll tax under the Twenty-Fourth Amendment and Equal Protection Clause?

Plain-English summary

In 2011, Tennessee was considering HB 0007/SB 0016, a voter photo identification requirement for in-person voting. The bill listed acceptable photo IDs (TN driver license, US passport, military ID, state or federal employee photo IDs, etc.) and required voters who lacked an acceptable ID to either (a) cast a provisional ballot and produce the ID by the second business day after the election, or (b) sign an affidavit of indigency or religious objection. The bill did not provide for voters to get a free state photo ID.

Three legislators asked whether the bill was constitutional. The AG worked through three sub-questions:

1. Facial constitutionality. The U.S. Supreme Court in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), upheld Indiana's photo ID law facially. But the Crawford Court was clear that Indiana's law was constitutional in large part because Indiana provided free photo IDs to qualified voters who lacked them (Ind. Code Ann. § 9-24-16-10(b)). The AG read Crawford together with Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966), to mean that a state cannot effectively charge voters a fee to obtain the ID required to vote. Because HB 0007/SB 0016 required non-indigent voters without acceptable ID to pay the state fee for a photo ID, it would likely be struck down as a poll tax in violation of the Twenty-Fourth Amendment (federal elections) and the Equal Protection Clause (state and local elections). Article XI, § 8 of the Tennessee Constitution would track the federal Equal Protection Clause per State v. Tester, 879 S.W.2d 823, 827-28 (Tenn. 1994). The AG cited Common Cause/Georgia v. Billups, 406 F.Supp.2d 1326 (N.D. Ga. 2005), where the federal court enjoined Georgia's first version of its voter ID law on precisely the same poll-tax theory until Georgia later added a free state voter ID card.

2. Burden of traveling and paying. The travel inconvenience itself does not invalidate the bill. Crawford held that the "inconvenience of making a trip . . . gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote." The fee, on the other hand, is the problem. Harper is unambiguous: any fee as a condition of voting is an invidious discrimination. So the fee, not the travel, is the constitutional flaw, and a free state photo ID would cure it.

3. Evidence of fraud. Current law does not require the state to produce specific evidence of in-person voter fraud before enacting voter ID legislation. Anderson v. Celebrezze, Burdick v. Takushi, and Crawford do not impose an evidentiary burden on the state. Crawford itself upheld the Indiana law even though "the record contain[ed] no evidence of any [in-person voter] fraud actually occurring in Indiana at any time in its history." The state's general interest in election integrity, supported by national historical examples, is enough.

The AG's analysis pointed to the fix directly: if Tennessee provided a free state photo ID to voters who lacked acceptable identification, as Indiana did from the start and as Georgia did after its first law was enjoined, the poll-tax problem would disappear. The defect was the unwaived fee, not the ID requirement itself.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tennessee did enact a voter photo ID requirement in 2011, paired with a provision making certain state-issued photo IDs available without charge for voting purposes. The constitutionality of voter ID laws continues to evolve in both federal and state courts, including under the Voting Rights Act framework. The specific analysis below describes the 2011 bill as it then stood; readers should consult current Tennessee election law before relying on any specific procedure.

Common questions

What did Crawford v. Marion County Election Board hold?
That Indiana's voter photo ID law was facially constitutional under the Equal Protection Clause. The Court used a balancing test from Anderson v. Celebrezze: the state's interests in preventing fraud, updating voter rolls, and maintaining public confidence in elections were weighed against the burden on voters. Indiana's free state ID program was central to the Court's conclusion that the burden on the small number of voters without acceptable ID was limited and justified.

Why did Tennessee's 2011 bill have a constitutional problem?
Because it required voters who lacked acceptable ID to pay the standard state fee for a photo ID (with carve-outs only for the indigent and the religiously objecting). The AG read Crawford to mean that a state-issued ID requirement combined with a fee for that ID is a poll tax, violating both the Twenty-Fourth Amendment and the Equal Protection Clause.

What is the Twenty-Fourth Amendment?
The amendment bars conditioning the right to vote in federal elections on "failure to pay any poll tax or other tax." It was ratified in 1964 to abolish state poll taxes that had been used to suppress Black voter turnout in the Jim Crow South. Harper v. Virginia Bd. of Elections extended the same principle to state elections under the Equal Protection Clause.

Could an affidavit-of-indigency exception save the bill?
The AG did not say so explicitly, but the implication is no. Harper says the "degree of the discrimination is irrelevant" when wealth is introduced as a condition of voting. Requiring a poor voter to swear out an affidavit, when a non-poor voter can simply pay, still introduces wealth as a voting qualification for everyone in between.

What about the inconvenience of traveling to get a photo ID?
The AG followed Crawford: travel inconvenience is not a substantial burden facially. There may be as-applied challenges for individual voters who cannot afford or obtain birth certificates, but those are fact-specific and not enough to defeat the law on its face.

Did the state need evidence of in-person voter fraud?
No. The AG concluded the state can rely on a generalized interest in election integrity, national historical examples, and absentee-voting fraud examples even without specific in-person voter fraud cases in Tennessee. Crawford explicitly accepted that approach.

What happened with the Georgia case?
Common Cause/Georgia v. Billups started in 2005 with a federal district court enjoining Georgia's first voter ID law as a poll tax because Georgia charged for the required IDs. After Georgia repealed and replaced its law to provide free voter ID cards, the Eleventh Circuit upheld the replacement statute in 554 F.3d 1340 (11th Cir. 2009) under Crawford's reasoning. The AG used this trajectory as the predictive guide for Tennessee.

Background and statutory framework

The voter ID debate in 2011 was unusually well-developed legally because Crawford had just been decided three years earlier. Both supporters and opponents knew the legal landscape: a facially valid photo ID requirement needed a free ID option, otherwise it ran into Harper. The AG opinion is unusual for its directness about predicting how a court would rule, going beyond the typical "this raises constitutional concerns" hedge.

Tennessee's 2011 legislative process ultimately addressed the AG's concern. The state expanded the categories of free photo ID available for voting purposes, paralleling the Indiana model. That coupling, photo ID requirement plus free state ID, is the structure most voter ID laws have followed since 2011.

The opinion's discussion of facial vs. as-applied challenges is also worth noting. Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008), held that a facial challenge fails if the statute has a "plainly legitimate sweep." So a court reviewing voter ID laws on facial challenge usually upholds them; the closer questions arise in as-applied litigation about specific groups (e.g., voters who cannot obtain birth certificates, voters with mobility limits, voters in counties without state ID issuance facilities).

Citations

• U.S. Const. amend. XXIV (poll tax prohibition for federal elections)
• U.S. Const. amend. XIV § 1 (Equal Protection Clause)
• Tenn. Const. art. XI, § 8 (Tennessee equal protection equivalent)
• Crawford v. Marion County Election Board, 553 U.S. 181 (2008)
• Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)
• Anderson v. Celebrezze, 460 U.S. 780 (1983)
• Burdick v. Takushi, 504 U.S. 428 (1992)
• Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)
• State v. Tester, 879 S.W.2d 823 (Tenn. 1994) (TN equal protection tracks federal)
• Common Cause/Georgia v. Billups, 406 F.Supp.2d 1326 (N.D. Ga. 2005) and 554 F.3d 1340 (11th Cir. 2009)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-034.pdf

Original opinion text

April 12, 2011
Opinion No. 11-34
Constitutionality of requiring voter photo identification

QUESTIONS

1. Whether House Bill 0007/Senate Bill 0016 requiring a voter to present a qualified photo identification before voting is constitutional under both the Tennessee and the United States Constitutions.

2. Given that not every county in Tennessee issues a photo identification card, would the inconvenience of traveling out of one's county of residence to obtain a photo identification card, and having to pay for a photo identification card, be a substantial burden on voters' rights that would be outweighed by any legitimate governmental interest.

3. Under present law, does the state have the burden of producing actual evidence of the existence of voter fraud, as opposed to relying on abstract harms, before imposing a photo identification card requirement to vote in person.

OPINIONS

1. A court would likely find that HB0007/SB0016's requirement that an otherwise eligible voter present a photo identification card in order to vote in person, without the state also providing the ability to obtain a free photo identification card, unduly burdens the right to vote and constitutes a poll tax in violation of the Twenty-Fourth Amendment with respect to federal elections and the Equal Protection Clause with respect to state and local elections. Additionally, because the Tennessee Supreme Court has held that Article XI, Section 8, of the Tennessee Constitution confers "essentially the same protection" as the Equal Protection Clause of the United States Constitution, State v. Tester, 879 S.W.2d 823, 827-28 (Tenn. 1994), a court would necessarily find that the failure to provide for a free photo identification card also violates the Tennessee Constitution.

2. Based upon the Supreme Court's ruling in Crawford v. Marion County Election Board, 128 S.Ct. 1610 (2008), inconveniences such as travel involved in obtaining a photo identification under HB0007/SB00016 would impose only a limited burden on voters' rights, and the State's interests in preventing fraud and protecting the integrity and fairness of the election process would be sufficient to overcome a facial challenge to the bill based on such inconveniences. For the reasons stated in response to the first question, a court would likely find that the state's failure to provide voters with a photo identification card free of charge would violate the federal and state constitutions.

3. Current law does not require any evidentiary showing of specific instances of in-person voter fraud or burden of proof be satisfied by the state before enacting legislation intended to serve the state's interests in preventing such fraud.

ANALYSIS

House Bill 0007/Senate Bill 0016, as amended by the House State and Local Government Committee, proposes to revise current state law regarding voting procedures. The bill would require that a voter present adequate identification bearing the voter's name and photograph before being allowed to vote. The bill further specifies that the following forms of identification would be adequate: (1) a Tennessee driver license; (2) a valid photo identification card issued by the State of Tennessee, any other state, or the United States; (3) a valid photo identification license issued by the Tennessee Department of Safety; (4) a valid United States passport; (5) a valid employee photo identification card issued by the State of Tennessee, any other state, or the United States; or (6) a valid United States military photo identification card. If a voter is unable to present an adequate photo identification, then the bill provides that the voter will be allowed to vote by provisional ballot; however, the provisional ballot will only be counted if the voter provides an adequate photo identification to the administrator of elections or the administrator's designee by the close of business on the second business day after the election.

The bill provides that if a voter is indigent and unable to obtain a photo identification without payment of a fee or has a religious objection to being photographed, he or she must execute an affidavit of identity on a form provided by the county election commission in order to vote. Such affidavit must state that the person executing the affidavit is the same individual who is casting the ballot and that the affiant is indigent and unable to obtain proof of identification without paying a fee or has a religious objection to being photographed.

The requirements of this bill would not apply to a voter voting by emergency absentee ballot or to a full-time resident of a licensed nursing home, home for the aged, or similar institution who is voting by absentee ballot attested by two absentee voting deputies at the institution pursuant to present law.

You have asked whether HB0007/SB0016 is constitutional under both the Tennessee and the United States constitutions. The facial constitutionality of a voter photo identification law in Indiana ("SEA 483") was upheld by the United States Supreme Court in Crawford v. Marion County Election Board, 128 S.Ct. 1610 (2008). Like HB0007, the Indiana statute applies only to in-person voting and not to absentee ballots submitted by mail or to persons living and voting in a state-licensed facility such as a nursing home. Ind. Code Ann. § 3-11-8-25.1(e) (West.Supp. 2007). The Indiana statute also provides that a voter who is indigent or has a religious objection to being photographed could cast a provisional ballot that would be counted only if the voter executes an appropriate affidavit before the circuit court clerk within 10 days following the election. Ind. Code Ann. §§ 3-11.7-5-1, 3-11.7-5-2.5(c) (West 2006). Additionally, a voter who cannot present a photo identification on election day can vote a provisional ballot that will be counted if the voter presented the photo identification to the circuit court clerk within 10 days of the election. Ind. Code Ann. § 3-11.7-5-2.5(b). Finally, no photo identification is required in order to register to vote, and the State of Indiana offers free photo identification to qualified voters able to establish their residence and identity. Ind. Code Ann. § 9-24-16-10(b) (West Supp. 2007).

In addressing the facial constitutionality of SEA 483, the Supreme Court first noted that, under the standard applied in Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), the Court would consider rational restrictions on the right to vote to be invidious if they are unrelated to voter qualifications. Crawford, 128 S.Ct. at 1616. The Court further noted, however, that evenhanded restrictions that protect the integrity and reliability of the electoral process itself are not invidious and satisfy the standard set forth in Harper. Id. (citing Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)). Accordingly, in evaluating a constitutional challenge to an election regulation, the Court held that a balancing test should be applied wherein the asserted injury to the right to vote is weighed against the precise interests put forward by the State as justifications for the burden imposed by its rule. Id. (citations omitted).

Applying this balancing test, the Supreme Court noted that Indiana had identified several state interests, including the interest in deterring and detecting voter fraud, in modernizing and updating its inflated voter rolls and in protecting public confidence "in the integrity and legitimacy of representative government." Id. at 1617-1620. The Court then looked to the burdens imposed by SEA 483 on the voters in Indiana and, specifically, to the burdens imposed on persons who are eligible to vote but do not possess a current photo identification that complies with the requirements of SEA 483. Id. at 1620. The Court first noted that the fact that most voters already possess a valid driver's license or some other form of acceptable identification would not save the statute under the Court's holding in Harper if the state required voters to pay a tax or a fee to obtain a new photo identification card. However, because the Indiana Bureau of Motor Vehicles provided free photo identification cards, the Court found that the inconveniences involved in otherwise obtaining a free photo identification card did not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting. Id. at 1621.

The Supreme Court did acknowledge that, while there may be special burdens imposed on a small number of voters as a result of the application of SEA 483, based upon the evidence in the record it was not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified. The Court then noted that the petitioner had advanced a facial challenge to the constitutionality of SEA 483 and that under its reasoning in Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008), such a facial challenge must fail where the statute has a "'plainly legitimate sweep.'" Id. at 1623 (citations omitted). Accordingly, the Court held that, based upon the evidence in the record and considering only the statute's broad application to all Indiana voters, SEA 483 imposed only a limited burden on voters' rights and that the precise interests advanced by the State were sufficient to defeat the facial challenge to the statute. Id.

The provisions of HB0007/SB0016 are similar to the photo identification requirements in Indiana that were upheld by the Supreme Court, with one exception. The State of Indiana provides free photo identification cards to qualified voters able to establish their residence and identity. HB0007 contains no such provision, although it does allow a voter who is indigent and unable to obtain a photo identification without payment of a fee, or who has a religious objection to being photographed, to vote if the voter executes an affidavit of identity on a form provided by the county election commission. In Crawford, the Supreme Court noted that if the statute had required voters to pay a tax or a fee to obtain a new photo identification card, such statute would be unconstitutional under the Court's holding in Harper. 128 S.Ct. at 1621. In Harper, the Supreme Court struck down Virginia's poll tax requirement for state elections, finding that it violated the Equal Protection Clause. In doing so, the Court stated:

We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. Our cases demonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate. . . .

[W]e must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored. To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context, that is, as a condition of obtaining a ballot, the requirement of fee paying causes an "invidious" discrimination that runs afoul of the Equal Protection Clause.

383 U.S. at 666-668.

Under the provisions of HB0007/SB0016, voters who are otherwise qualified to vote but who are not indigent or do not have a religious objection to being photographed and who do not have an acceptable form of a photo identification card must obtain a photo identification card to be able to vote in person at the polls; however, there is no provision for such voters to obtain a free photo identification card. Thus, requiring these voters to obtain a photo identification card for which they have no other need effectively places a cost on the right to vote. Based upon the Supreme Court's decisions in Crawford and Harper, such a requirement would appear to be in violation of the Twenty-Fourth Amendment to the federal constitution for federal elections and the Equal Protection Clause for state and local elections.

In fact, in the case of Common Cause/Georgia v. Billups, 406 F.Supp.2d 1326 (N.D. Ga. 2005), enforcement of Georgia's statute requiring a photo identification card for in-person voting was enjoined on this basis. The Georgia statute, like HB0007/SB0016, did not contain any provision for a voter to obtain a free photo identification card. Instead, voters who did not already have an acceptable form of photo identification were required to obtain a photo identification card from the state Department of Driver Services by paying the applicable fee or by executing an affidavit of indigency. 406 F.Supp.2d at 1339. The District Court found that this requirement unduly burdened the right to vote and constituted a poll tax in violation of the Twenty-Fourth Amendment and the Equal Protection Clause. Id. at 1369. Georgia appealed this decision to the Eleventh Circuit Court of Appeals; however, during the pendency of the appeal the Georgia General Assembly repealed the statute in question and enacted a new statute that still required voters to present a photo identification before voting in person, but also provided that each county issue free of charge a "Georgia voter identification card," with a photograph of the voter, to any registered voter who does not have another acceptable form of identification. See Common Cause/Georgia v. Billups, 554 F.3d 1340, 1346 (11th Cir. 2009). The constitutionality of this new statute containing a provision for voters to obtain a free photo identification card was subsequently upheld by the Eleventh Circuit relying upon the reasoning and analysis in Crawford. Id. at 1355.

In light of these decisions, we think a court would likely find that HB0007/SB0016's requirement that an otherwise eligible voter provide a photo identification card in order to vote in person without providing the ability to obtain a free photo identification card unduly burdens the right to vote and constitutes a poll tax in violation of the Twenty-Fourth Amendment with respect to federal elections and the Equal Protection Clause with respect to state and local elections. Additionally, because the Tennessee Supreme Court has held that Article XI, Section 8, of the Tennessee Constitution confers "essentially the same protection" as the Equal Protection Clause of the United States Constitution, State v. Tester, 879 S.W.2d 823, 827-28 (Tenn. 1994), a court would necessarily find that the failure to provide for a free photo identification card also violates the Tennessee Constitution.

Your next question asks whether the inconvenience of traveling to obtain a photo identification card and having to pay for a photo identification card places an impermissible burden on the right to vote. As already discussed above, the requirement that an otherwise eligible voter pay for a photo identification for the sole purpose of voting effectively requires payment of a fee in order to vote. As stated by the Supreme Court in Harper, "the requirement of fee paying causes an 'invidious' discrimination that runs afoul of the Equal Protection Clause," as well as the Twenty-Fourth Amendment to the federal constitution. 383 U.S. at 668.

However, with respect to any inconveniences involved in obtaining a photo identification card, the Supreme Court in Crawford held that, for most voters, "the inconvenience of making a trip . . ., gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting." 128 S.Ct. at 1621. While the Court did recognize that a heavier burden may be placed on a limited number of persons (e.g., voters who cannot afford or obtain a birth certificate), the evidence in the record was not sufficient to overcome the Court's finding that the statute's broad application to all Indiana voters "imposes only a limited burden on voters' rights" and that the "precise interests" advanced by the State were sufficient to defeat a facial challenge to the statute. Id. at 1622-23. Similarly, the inconveniences involved in obtaining a photo identification under HB0007/SB0016 would impose only a limited burden on the rights of voters generally, and the State's interests in preventing fraud and protecting the integrity and fairness of the election process clearly would be sufficient to overcome a facial challenge to HB0007/SB0016.

Your last question asks whether the state has the burden of producing actual evidence of the existence of voter fraud, as opposed to relying on abstract harms, before imposing a photo identification card requirement to vote in person. In Anderson v. Celebrezze, 460 U.S. 780, 796 (1983), the Supreme Court held that a state must identify the interests that it seeks to further by its regulation, but the Court did not require any evidentiary showing or burden of proof to be satisfied by the state government. More recent decisions of the Supreme Court in Burdick v. Takushi, 504 U.S. 428 (1992), and Crawford also do not place any sort of evidentiary burden on the state when defending a voting regulation. In fact, in Crawford, the record "contain[ed] no evidence of any [in-person voter] fraud actually occurring in Indiana at any time in its history." 128 S.Ct. at 1619. Instead, the Supreme Court looked to the "flagrant examples of such fraud in other parts of the country [that] have been documented throughout this Nation's history by respected historians and journalists, [the] occasional examples [that] have surfaced in recent years, and . . . Indiana's own experience with" absentee voter fraud. Id. The Supreme Court further held that even absent specific evidence of in-person voter fraud, the general history of voter fraud and the "real" risk that in-person voter fraud "could affect the outcome of a close election" was sufficient to support the interest of Indiana in deterring voter fraud. Id. Accordingly, present law does not require any evidentiary showing of specific instances of in-person voter fraud or burden of proof to be satisfied by the state before enacting legislation intended to serve the state's interests in preventing such fraud. See Common Cause/Georgia v. Billups, 554 F.3d at 1353-54.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Associate Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Lowe Finney
State Senator
317 War Memorial Building
Nashville, TN 37243-0025

The Honorable Craig Fitzhugh
State Representative
33 Legislative Plaza
Nashville, TN 37243-0185

The Honorable Mike Turner
State Representative
17 Legislative Plaza
Nashville, TN 37243