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A Changed Consensus on Voter ID Laws

August 5, 2016

Co-Director, Voting Rights Project

Beginning in 2005, many states began passing overly restrictive voter identification laws; laws that limit the types of identification that that voters could use when voting in person. When the United States Supreme Court upheld Indiana’s law against a facial constitutional challenge in 2008, some legislatures saw this as a green light to pass more of these laws. Although the court noted that there was no evidence to support Indiana’s claim that the law was needed to protect against voter impersonation fraud, it looked at history for evidence that such fraud was a possibility. However, since that decision, surveys have found that recent voter fraud is rare and voter impersonation fraud is practically non-existent. And, federal judge Richard Posner in a 2014 review of Wisconsin’s voter ID law wrote in a dissent that “[t]here is evidence that voter fraud is extremely rare and that photo ID requirements for voting . . . are likely to discourage voting.” He went on to call some of the evidence of voter fraud “downright goofy, if not paranoid.”

But at the time immediately following the 2010 mid-term elections, many states passed restrictive ID laws, using the phantom justification of voter impersonation fraud. Because these laws were controversial and strongly opposed by a vocal minority, some legislatures employed irregular procedures to get the bills passed. Proponents also ignored amendments that would have expanded the types of required identification and minimized the disenfranchising effect of these laws. Two of these ID laws were blocked or modified in litigation in the federal court in Washington, D.C. under the review that was then required by Section 5 the Voting Rights Act to prevent implementation of discriminatory voting changes. Texas’ ID law was blocked and South Carolina agreed to have voters without the required ID to vote after signing an affidavit asserting that a reasonable impediment prevented them from getting the necessary ID.

However, following the Shelby County v. Holder decision that nullified the provision of the Voting Rights Act that required states with a history of discrimination in voting to submit their voting changes for federal review, Texas and North Carolina immediately moved to implement voter ID laws. Texas dusted off the law that had been previously found to be discriminatory and put it into effect immediately and North Carolina added a range of repressive laws to the voter ID law it was considering before the Shelby decision. It enacted what came to be known as the “monster law” which in addition to the photo ID law, eliminated same day registration, reduced early voting, got rid of pre-registration for citizens about to turn 18, and did not count provisional ballots cast out of precinct.

In recent weeks, after years of litigation and elections where eligible voters without the necessary ID were not able to vote, there have been a series of decisions that highlight the impact of restrictive photo ID laws.

The Fifth Circuit Court of Appeals found that Texas’s voter ID law violated the Voting Rights Act because it had a discriminatory effect against racial minorities. In sending the plaintiffs’ discriminatory intent back to the trial court for further consideration, the court noted drafters of the law knew that it would have a discriminatory impact on minority voters and passed the law without including measures that would have lessened the discriminatory impact of the law.  The Fifth Circuit ordered the trial court to establish a remedy for November’s election and to determine its discriminatory intent after the election. The parties have since agreed to an interim remedy that allows those without the required ID to use a non-photo document such as a utility bill and sign a declaration of reasonable impediment can vote a regular ballot.

The Fourth Circuit Court of Appeals struck down North Carolina’s voter ID law, ruling that it had been passed with a discriminatory intent, noted that the legislative deliberately limited acceptable IDs to those that African Americans were unlikely to have. The court found the reasonable impediment affidavit adopted by the state during the course of the litigation an insufficient remedy given its finding of discriminatory intent.   North Carolina’s governor, Pat McCrory has vowed to appeal the ruling.

In granting a preliminary injunction limiting the use of Wisconsin’s photo ID law during the November election, the federal district court noted that the state’s purported interest in combating voter fraud, a claim for which they offered no support, did not outweigh the burden placed on the rights of voters.

In North Dakota, in granting preliminary injunction against the use of that state’s law in the November election, the court concluded that the state must provide Native Americans with an equal and meaningful opportunity to vote in November. The court stated that “[n]o eligible voter, regardless of their station in life, should be denied the opportunity to vote.”

Now, it is imperative that the election officials constantly educate and update not only voters, but poll workers, about the laws that will be in effect for the upcoming election. As a recent voter ID study by the Congressional Research Service noted: “Election Administration is complex and changes in ID requirements may affect elections in unanticipated ways, such as a need for more provisional ballots, increased waiting times at polling places and misapplication of the rules by poll workers.”

More important, the recent ID decisions show courts rejecting actions by legislatures that target certain voters for disfranchisement.  The courts are doing their part and now Congress needs to do its part. Congress must restore the full protections of the Voting Rights Act. It cannot allow this to be the first presidential election without the full protections of the VRA, the iconic civil rights law that transformed our democracy and gave all voters an equal voice in our democracy.

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