When 96-year-old Dorothy Cooper was born, women were legally barred from voting.  With the passage of Tennessee’s new voter identification law, women’s access to the polls is once again in jeopardy.

As of last year, Tennessee law requires voters to present a valid, government-issued ID before casting a vote in state and federal elections.  To comply with the mandate, Cooper – who has voted in every election for which she’s been eligible, save one – went to a state Driver Service Center to get her free ID.  To confirm her identity, Ms. Cooper brought with her a rent receipt, a copy of her lease, her voter registration card, and her birth certificate.  This documentation was deemed insufficient, however, and her request for an ID card was denied.  A clerk at the Service Center told Ms. Cooper that he could not process her request as the birth certificate she presented listed her maiden – not her married – name.  If Ms. Cooper wanted to vote, she had to return to the Center with her marriage certificate.

Ms. Cooper’s experience at the Service Center has renewed the debate over Tennessee’s controversial ID requirement.  In an interview with the Chattanooga Free Times Press, State Representative Tommie Brown denounced the Republican-backed measure as a means to “suppress the vote” among the elderly, the poor, and racial minorities (Ms. Cooper happens to be black).

State officials have already begun back-pedaling.  In an interview with the Nashville Scene, Jennifer Donnals, a spokesperson for the Tennessee Safety Department, explained that Ms. Cooper’s situation should have been handled differently.

[T]he clerk was following policy for issuing photo IDs, but we think that the clerk could have taken some extra steps to help this woman in this situation.  But that is the policy.  If someone comes in with the birth certificate that does not have their correct last name, then there needs to be some supporting document to prove that’s her last name.

Asked what documents Ms. Cooper needed to bring when she returned to the Service Center, Donnals answered, “Every situation is different.”

The Safety Department’s response to Ms. Cooper’s experience is troubling for a number of reasons.  First, it is not entirely clear that state officials know what documents voters need to present before receiving a state-issued ID.  The Service Center clerk apparently though that Ms. Cooper needed present a marriage license, but Donnals suggests that other documentation would have sufficed.  Second, the Tennessee ID requirement makes it appreciably harder for women to vote in the state than men.  Women who give up their maiden names must present additional documentation to receive their mandated ID cards, yet men can escape the time, effort, and travel necessary to fulfill this requirement.

Finally, the Safety Department’s proposed solution to Ms. Cooper’s situation is wholly unsatisfying.  Essentially, Donnals proposes that processing clerks simply “try as hard as they can” to get voters their ID cards, exercising good judgment in a given situation.  Malleable licensing procedures have been repeatedly decried by the Supreme Court, at least in the First Amendment context.  In Forsyth County v. Nationalist Movement, the Court overturned a state licensing system affording municipal workers considerable discretion in deciding to issue parade permits.  Unchecked discretion, the Court feared, could lead to content discrimination.  The government could grant permits to groups promoting speech that it liked, while denying licenses to groups espousing disfavored opinions.

The Tennessee law allows for content discrimination of a different sort.  A clerk may “give it her all” to secure an ID card for an applicant whose demographics suggest that she will vote for the clerk’s preferred candidate, yet adhere to the strictures of the law’s requirements when the applicant’s politics seem less amenable.  If discretion is disallowed in the context of free speech, it should also be eschewed in the context of voting.  Tennessee cannot solve its problems regarding the ID law simply by asking state workers to be more cooperative.  Greater, institutional changes are necessary to protect certain classes of voters from disenfranchisement.