Shortly after the U.S. Supreme Court in 2013 ruled portions of the 1965 Voting Rights Act related to voter IDs were outdated and unconstitutional, states took action.
“With today’s decision, the state’s voter ID law will take effect immediately,” Texas Attorney General Greg Abbott said in a statement released two hours after the ruling was handed down.
But those laws in Texas and other states that have imposed strict new photo identification requirements for voters are in limbo, with courts questioning whether concerns over voter fraud outweigh individuals exercising their right to vote.
Since 2010, 13 states have passed more restrictive voter ID laws, including nine states—eight Southern states plus Wisconsin—with so-called “strict” laws, meaning a citizen cannot cast a valid ballot without a specific kind of government-issued photo ID.
Many of these voter ID laws previously were blocked by Section 5 of the 1965 Voting Rights Act, which required nine states—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia—and local jurisdictions across the country with a history of discriminatory election practices to obtain federal approval, or preclearance, before changing voting laws to ensure they do not have a harmful impact on minority voters.
The 2013 Supreme Court ruling invalidating Section 5 means Southern states are no longer singled out for special consideration in terms of voter laws. Lisa Soronen, director of the State and Local Legal Center, called the decision “a victory for federalism” because now all states are “playing under the same rules, as it relates to election laws.”
Federal officials had blocked many state laws related to voter ID out of fears of a discriminatory effect on minority voters.
Myrna Pérez, deputy director of the Brennan Center’s Democracy Program, said 11 percent of eligible voters do not have government-issued photo IDs; that percentage is higher for certain groups, including seniors, people of color, people with disabilities, low-income voters and students.
The June 2013 Supreme Court ruling found the formula that determined which states were covered by Section 5 was outdated and unconstitutional, effectively eliminating enforcement.
Almost immediately, new laws requiring voters to show specified state-issued photo identification at the polls took effect throughout the South. Alabama, Mississippi, Texas and Virginia previously had passed such laws, but never gained federal approval to implement them.
Less than one month after the ruling, North Carolina legislators passed a wide-ranging election bill that included one of the nation’s strictest voter ID requirements; it takes effect in 2016.
New Voter ID Challenges
But the Supreme Court ruling only applies to Section 5. Section 2, which covers all states, prohibits voting practices and procedures that discriminate on the basis of race, color or language minority group. Opponents of voter ID laws have filed Section 2 lawsuits in states across the country, including North Carolina, Texas and Wisconsin.
Under Section 5, states subject to preclearance had to prove their voting laws were not discriminatory. Under Section 2, affected voters have to prove the laws are discriminatory, according to Daniel Tokaji, a professor at The Ohio State University Moritz College of Law, a leading authority on election law and voting rights.
The legal standard is also different.
“Under Section 5 challenges, the main question was whether the proposed change would make racial minorities worse off,” said Tokaji. “Courts are still in the process of sorting out the meaning of Section 2.”
In a decision that could have implications across the country, a federal judge in April used Section 2 to strike down Wisconsin’s voter ID law, which two state judges had already found to be unconstitutional.
Judge Lynn Adelman ruled the Wisconsin law violated both the Voting Rights Act and the U.S. Constitution because it established an unconstitutional burden on the right to vote that disproportionately affects minority voters. This was the first time a federal judge had used Section 2 of the Voting Rights Act to strike down a law.
Adelman found Wisconsin did not have sufficient basis to impose a voter ID requirement that would prevent or deter from voting more than 300,000 state residents who lack photo identification, since in-person voter impersonation—the only fraud a voter ID law would prevent—is nonexistent.
“Because virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future, this particular state interest has very little weight,” Adelman wrote. “The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.” The state is appealing the ruling.
Previously, two state judges had also found the law to be unconstitutional. A divided state Supreme Court, however, on July 31 upheld the law, concluding that providing a photo ID at
the polls does not create a substantial burden to the voter. In the decision, the majority rewrote a state rule to require the Department of Transportation to provide free IDs to people, even if they do not have a birth certificate or other government documents usually needed to obtain them.
Despite the state Supreme Court ruling, the photo ID law remains blocked pending review of Adelman’s decision by the U.S. Seventh Circuit Court of Appeals in Chicago. The court will hear oral arguments in the case Sept. 12.
Section 2 challenges to voter ID laws also are underway in North Carolina and Texas, where the U.S. Department of Justice has joined civil rights groups in requesting that the laws be blocked.
In August, a North Carolina federal judge refused to issue a preliminary injunction delaying implementation of the omnibus election law until after the November elections. A full trial is scheduled for next year, but many of the provisions will be in effect for the November 2014 election.
Soronen and Tokaji believe states should prepare for additional Section 2 challenges to voting laws.
Another possible obstacle to voter ID laws are state constitutions, which often have equal protection and due process clauses, and many have strong protections on the right to vote.
In January 2014, a Pennsylvania state court judge permanently blocked the state from
implementing its voter ID law, passed in 2012 and considered one of the strictest in the
nation because it relied on a limited number of state-approved forms of photo identification. The court found that since hundreds of thousands of voters may not have the required identification, “the evidence showed the photo ID provisions at issue deprive numerous electors of their fundamental right to vote, so vital to our democracy.”
Gov. Tom Corbett, who supports the law, decided not to appeal the decision to the state Supreme Court.
“It is clear that the requirement of photo identification is constitutionally permissible. ... The court also made clear that in order for a voter identification law to be found constitutional, changes must be made to address accessibility to photo identifications,” he said in a statement released after the ruling.
Corbett reiterated his belief that a photo identification requirement is a “sensible and reasonable measure” that “reassures the public that everyone who votes is registered and eligible to cast a ballot.”
He said his administration would work with the legislature to make changes in the law to allow it to pass judicial muster. The legislature has shown little interest in taking up the divisive issue.
An Arkansas state judge in April ruled that state’s voter ID law also violated the state constitution. The judge placed his ruling on hold and the voter ID provisions were in effect for the state’s May primary, although their use in the November election is uncertain.
Issue Remains Hot
The Brennan Center’s Pérez believes voter ID will continue to be hotly contested across the country, both in state and federal courts.
“We’ve had three recent decisions—in Pennsylvania, Arkansas and Wisconsin—where opponents of strict photo ID laws achieved victory. However, more appeals are coming, and we are going to need to watch and wait,” she said.
Tokaji agrees. “It’s very hard to identify an overall trend line. There are lots of different courts moving on a lot of different claims. With that caveat, a number of courts in recent years have been skeptical of new restrictions on voting, including voter ID.”
Tokaji said judges in the recent decisions believe the states have not provided enough evidence of voter fraud to justify restricting voters.
“Judges are concerned that state voter ID laws are really driven by a desire to make voting more difficult rather than a genuine motivation to reduce fraud,” he said. “If I could sum up what is motivating court decisions against voter ID laws in one word, it would be ‘shenanigans.’”