Common Cause v. Billups

In 2005, the Georgia legislature passed a statute requiring in-person voters to provide state-issued photo identification at the polls. Previous to the new law, birth certificates, Social Security cards, Certified Naturalization Documents, current utility bills, bank statements, government checks or paychecks, and other government documents were all acceptable forms of identification. Even if a voter could not produce any of these, he or she could still sign an affidavit and vote. Although another part of the new law eliminated previous restrictions that significantly limited the circumstances under which a voter could vote absentee and so allowed all voters to vote absentee, absentee voters would not be required to provide a Photo ID. The Georgia Legislature also doubled the cost of State Identity Cards from $10 to $20. On September 19, 2005, the Lawyers’ Committee and other advocates filed suit in federal district court in Rome, Georgia, alleging that the photo identification requirement violates:

The Twenty-Fourth Amendment’s prohibition against poll taxes because voters without a drivers’ license, passport, state student or employee photo identification, or tribal identification will have to buy a state issued identification,
The fundamental right to vote under the Fourteenth Amendment,
The 1965 Voting Rights Act because it results in the denial of voting rights to African-American and Latino voters.
The Georgia Constitution because it creates an entirely new set of voting qualifications beyond those specified in the State Constitution, and
The 1964 Civil Rights Act because it applies different standards for voters who vote in person compared to those who vote by absentee ballot and disqualifies voters based solely on whether they have a government-issued photo ID, even if they are personally known to election officials, or their signatures match the one on their official voter registration card.

The Court determined that Plaintiffs had demonstrated a substantial likelihood of success on two of their claims. First, the statute unduly burdened Georgia voters’ fundamental right to vote in violation of the Equal Protection Clause of the Fourteenth Amendment. Second, the statute imposed a poll tax on Georgia voters in violation of the prohibition on poll taxes in the Twenty-Fourth Amendment (for federal elections) and Fourteenth Amendment (for state and local elections). The Court further found that without a preliminary injunction, those same Georgia voters would be irreparably harmed by having their right to vote denied. The Court acknowledged that granting the injunction would impose significant costs on the Defendants, but held the loss of the right to vote was far greater. Finally, the Court concluded that vindicating the right of all Georgians to vote served the public interest.

In response to the Court’s decision, the state legislature amended the law in 2006 to allow voters to obtain a free photo ID at their elections office. In 2007, the District Court found that given this statutory change, the plaintiffs did not have standing and the ID requirement did not violate the fundamental right to vote. On January 14, 2009, a panel of the 11^th Circuit Court of Appeals found that Georgia’s requirement that in-person voters provide government-issued photo identification does not violate the fundamental right to vote contained in the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The 11^th Circuit panel ruled that the district court had erred in its ruling on standing. The panel found that the NAACP had standing because the voter identification law “will divert resources from its regular activities to educate voters about the requirement of a photo identification and assist voters in obtaining free identification cards.” The panel also found that individual registered voters who did not have identification cards also had standing.

On the merits, the court stated that it was applying the balancing test set forth in Crawford v. Marion County Elections Board, 128 S. Ct. 1610 (2008), and other Supreme Court precedents. The panel found that the Georgia had a legitimate interest in preventing voter fraud which the statute furthered and that Georgia did not need to show that there had been specific instances of actual voter fraud that the statute would have prevented. On the other side of the balance, the panel stated that it agreed with the district court that “burden imposed on Georgia voters who lack photo identification was not undue or significant.”

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