Are Voter ID Laws Dead? That Depends.

Judges are starting to strike down the laws, calling them racist. But their survival depends on the outcome of the November election.
by | October 2016
(AP)

Judge Catharina Haynes was clearly dismayed. The Texas native, who practiced law in Dallas before President George W. Bush named her to a federal appeals court, was listening to a lawyer defend her home state’s voter ID law. The law was one of the strictest of its kind in the country, an unapologetically tough effort to crack down on the threat of people lying about who they were in order to vote illegally.

But the law was so rigid, critics claimed, that it would keep hundreds of thousands of honest people from voting, and those people were disproportionately black or Hispanic. The statute had been on the books for four years before the lawsuit reached Haynes and her colleagues in a New Orleans courtroom in April of last year. But in those four years, Haynes noted, the Republican majority in the Texas Legislature had not tried to make the law more accommodating toward minorities. “Shouldn’t they be fixing some of this stuff?” she asked the lawyer. “Why are they wanting to fix this in the court, rather than in the legislature where this belongs? They’re meeting right now. They have that opportunity. What are they doing with it?”

This summer, when the legislature still hadn’t touched the law more than a year later, Haynes wrote a decision on behalf of the full Fifth Circuit Court of Appeals. It struck down the entire 2011 law.

Haynes, and a majority of her colleagues on the 15-member court, which is stocked with Reagan and Bush appointees, said legislators’ concerns about voter fraud weren’t enough to justify the impact on minorities. “This argument effectively nullifies the protections of the Voting Rights Act by giving states a free pass to enact needlessly burdensome laws with impermissible racially discriminatory impacts,” she wrote. “The Voting Rights Act was enacted to prevent just such invidious, subtle forms of discrimination.”

Judges rarely take on state lawmakers so forcefully, especially when lawsuits are accusing a whole legislature of racism. But Haynes and the Fifth Circuit had plenty of company this summer. A separate appeals court not only struck down North Carolina’s voter ID law but said that legislators in that state had passed the law precisely because of its discriminatory effects. Other courts have blocked or weakened voter ID laws and other electoral changes on the grounds that they disproportionately hurt minorities.

The timing of all these decisions, issued in the thick of a presidential campaign with control of the Supreme Court hanging in the balance, gives them extra weight. At the very least, it seems, judges expect voter ID laws to create some sort of alternative for citizens -- and especially minorities -- who have difficulty producing government-issued photo identification. “The courts really are coming down and saying, ‘You know what, legislators and elected officials? We’re no longer going to defer to what you say you’re doing.’ They’re looking at the impact of the laws … and not believing elected officials, which they’ve done so many times in the past,” says Keesha Middlemass, a political scientist at Trinity University in San Antonio.

When voters go to the polls in Texas next month, they will be able to vote without providing the identification that the state law would have demanded. They will be allowed to present a valid registration certificate, birth certificate, current utility bill, bank statement, government check, paycheck, or any other government document that displays their name and address. Voters who don’t have a photo ID will be asked to fill out a form indicating why they don’t have one, but poll watchers will not be allowed to question their answer.

Some anti-discrimination activists are insisting that these rules still don’t go far enough to protect minorities, but conservatives have been quick to argue that the recent court decisions are improperly tying the hands of state officials. “These erroneous rulings twist the Voting Rights Act,” Hans von Spakovsky and John Fund wrote in The Wall Street Journal recently, “from a law intended to stop racial discrimination into one that transfers the power to determine routine election procedures -- which the Constitution delegates to the states -- to the judiciary.”

What ultimately matters most, however, is what happens in the presidential election.

If Hillary Clinton wins the presidency and names a liberal judge to fill the current Supreme Court vacancy, the decisions in Texas and North Carolina may be the beginning of a long-term shift in the U.S. judiciary’s approach to voting rights cases, away from strict identification requirements and toward a mandate of greater inclusiveness imposed on state governments. Clinton would nominate more judges to district and appellate courts who would be sympathetic to claims of racial discrimination. The Justice Department in a Democratic administration would continue to back plaintiffs who sue states and localities for violating their rights with voter ID laws, just as the department has done under President Obama. And if Democrats take control of Congress, they could effectively nullify previous high court decisions and return to an earlier policy requiring certain states to seek federal approval of any new election laws they enact.

A President Trump, on the other hand, would likely fill the Supreme Court vacancy with a conservative justice who would help overturn the Texas and North Carolina rulings and allow the states to write election law as they wish to write it. And Trump could direct the Justice Department to focus more heavily on voter fraud than on discrimination claims. In that scenario, this summer’s rulings might soon be irrelevant.

SOURCE: National Conference of State Legislatures

Today’s debates about voter identification can’t be understood without a look back to 1965, when the Voting Rights Act became law. The law’s protections for minority voters have reshaped the legal landscape and the broader political world for the past five decades.

The law gave the Justice Department far-reaching powers to crack down on states and localities that tried to prevent minorities from voting or that tried to dilute the political strength of those minorities. It authorized the Justice Department to block laws in certain jurisdictions -- primarily in the South -- because of their racial impact. Affected jurisdictions in 15 states had to get federal permission, called “preclearance,” to change anything from voting hours to legislative district maps. In a series of revisions over the years, Congress broadened the law’s scope and extended its life several times, most recently in 2006.

The Voting Rights Act ultimately created the political alignment that exists today. After the passage of the law (along with the Civil Rights Act of 1964), blacks began voting in the South in much larger numbers, and formed the core of Democratic strength in Southern states. The Republican Party, meanwhile, increasingly attracted conservative white Southerners, first in national elections, and eventually in elections that determined the makeup of state legislators and even county courts. The transformation took decades, but it was largely completed with the 2010 election.

Because of the racial polarization that has become entrenched across the country, but particularly in the South, enforcement of the Voting Rights Act has become a partisan issue. Democrats have sought to make it easier for minority voters to get to the polls, while Republicans have pushed restrictions to counter what they see as a significant problem of voting fraud.

The push for voters to present photo IDs at the polls started under the George W. Bush administration, and reflected two chief priorities of the Bush era: better election administration and improved homeland security. A federal commission led by former President Jimmy Carter and former Secretary of State James Baker III recommended in 2005 that all voters be required to present IDs approved by the federal government. But the group also called for massive outreach to make IDs available to minorities and the poor. Carter and Baker later lamented that no states took them up on their suggested approach.

Instead, a handful of states began enacting new laws that required voters to present specified types of photo ID before they could get a ballot. In 2008, in the case of Crawford v. Marion County, the U.S. Supreme Court upheld an initial challenge to one of those laws, in Indiana. But the justices split three ways in their decision and left the door open to further challenges when concrete evidence of the law’s effects could be presented. The question of racial discrimination was never taken up.

But in other states where race did come up in legal challenges, courts required tweaks to voter ID laws before they could take effect. Georgia had to make it possible for citizens to get IDs free of charge after a court found that its voter ID law amounted to an illegal poll tax. Later, the Justice Department tried to block South Carolina’s voter ID law using its preclearance authority. But South Carolina officials told judges they would let voters without IDs cast ballots with only a few extra steps, and fended off the challenge.

Then, in 2013, the Supreme Court invalidated key portions of the Voting Rights Act, ruling that Southern states no longer needed to look over their shoulders when changing election laws. In a 5-4 decision in Shelby County v. Holder, the conservative court majority ruled that the law impermissibly favored some states over others because it continued to subject some, but not all, of them to preclearance procedures. Chief Justice John Roberts argued that since Congress hadn’t changed the formula for determining which jurisdictions needed preclearance in nearly 40 years, the formula was outdated. As a result of that decision, no government needed permission anymore to change its voting procedures.

The opinion unleashed a rush of activity. “This chapter is closed,” Mississippi Secretary of State Delbert Hosemann announced hours after the decision, as he vowed to start enforcing his state’s previously blocked ID requirement law. In North Carolina, a Republican state senator announced that the legislature would “move ahead with the full bill” on voter ID, rather than a more lenient one that had some bipartisan support. The newest ID laws were much more strict than their predecessors.

The new laws triggered new lawsuits. Not all were successful. Laws in Oklahoma, Tennessee and Virginia withstood initial court scrutiny.

But all of this was prelude to the judicial rulings issued this summer, most important the ones that invalidated the voter ID laws in Texas and North Carolina. They left the states with nowhere to turn but the U.S. Supreme Court, to which both Texas and North Carolina planned an appeal. But the court, evenly divided 4-4, elected not to intervene. Without Supreme Court action, this summer’s decisions invalidating voter ID laws will be binding precedent in seven Southern states.

SOURCE: NCSL

For challengers to prevail in any of these lawsuits, they have to show that a voter ID law discriminates against racial minorities. The key question isn’t whether the vast majority of Americans have easy access to a driver’s license or other ready identification: They do. The legal questions focus on the relative few who don’t.

In the Texas case, Harvard professor Stephen Ansolabehere found that 608,000 of the 13.5 million registered Texas voters in 2014 did not have any acceptable forms of ID. Those numbers were determined by comparing the state’s voter lists with state and federal databases of all the types of ID that would be accepted at Texas polls under the most recent state law. Ansolabehere found that 91 percent of white voters in the state had Texas driver’s licenses, compared with 78 percent of black voters and 82 percent of Hispanic voters.

No matter how Ansolabehere sliced the data, the pattern remained the same: Hispanics were 50 percent more likely than whites to lack the necessary ID, and blacks were 100 percent more likely. “Such a difference,” he wrote, “is highly unlikely to have arisen by chance.”

Of course, would-be voters who don’t have the right type of ID can apply for it. But there too, courts have found that this option is unrealistic for some voters. The court in the Texas case pointed to witnesses who said they couldn’t afford the high cost of obtaining birth certificates from other states or didn’t have time to make a long trek to state ID-issuing facilities.

In North Dakota, a federal trial judge in August found that similar obstacles confronted Native American voters and, because of that, temporarily halted the state from using its 2015 voter identification law. Nearly a quarter of Native Americans in North Dakota lack a valid form of ID for voting, Judge Daniel Hovland wrote, compared with only 12 percent of the rest of the population in the state. And for those Native Americans who don’t have the requisite identification, nearly half say they don’t have the proper documents, such as a birth certificate, that they must have in order to get a driver’s license or state ID. In the judge’s words, “you need an ID to get an ID.” Because the law in North Dakota law, like the one in Texas, offered no alternative for people who could not produce the right identification, Hovland issued a preliminary injunction blocking the law from taking effect.

The appellate court in North Carolina’s case went even further. The judges there didn’t strike down the state’s voter ID law because it happened to be harder on minority voters. Instead, they concluded the North Carolina law was designed to be tougher on black voters. “The new provisions,” the court ruled, “target African-Americans with almost surgical precision.”

Besides imposing an ID requirement, North Carolina’s 2013 law restricted early voting, same-day registration and out-of-precinct voting. Legislators appeared to know that those changes would disproportionately harm black voters, because they requested information on how different racial groups used different election features. The data they received showed that whites were more likely to use absentee ballots. But the lawmakers did not add restrictions on absentee ballots, even though election authorities said those ballots were more susceptible to fraud than in-person balloting.

The law’s defenders argued that Republicans were simply rolling back laws Democrats had passed when they were in power. But the reviewing court said that once a state makes it easier for minorities to vote, it cannot reverse course. “When a legislature dominated by one party has dismantled barriers to African-American access to the franchise, even if done to gain votes, ‘politics as usual’ does not allow a legislature dominated by the other party to re-erect those barriers,” Judge Diana Gribbon Motz, a Clinton appointee, wrote for the court.

The court’s finding that North Carolina’s legislature intentionally passed a discriminatory law is significant. The ruling could trigger attempts to once again force the state to submit major voting changes for approval, under a provision in the Voting Rights Act that, technically, is still on the books. If successful, those efforts would essentially reinstate the rules that prevailed before the Shelby County decision came down.

Texas could end up in the same boat. The appeals court in that case set aside the trial judge’s ruling that the Texas legislature acted with discriminatory intent. But the appeals court said the trial judge could revisit the question after this year’s elections. Then the appeals court judges laid out several facts that might support such a finding of intentional discrimination.

(AP)

At the root of all these cases is the question of how common voter fraud actually is. Proponents of voter ID laws argue that the whole point of the laws is to prevent tampering with elections. The Supreme Court echoed that point in the Indiana case eight years ago. “There is no question about the legitimacy or importance of the state’s interest in counting only the votes of eligible voters,” the court held at that time. Indeed, many courts have recited that language and relied on that opinion in upholding various voter identification laws.

But after eight years of litigation and study, the evidence of in-person voter fraud is still scant. The courts in Texas and North Carolina held that even if lawmakers were concerned about voter fraud, the laws they enacted were not tailored to fight it effectively. The courts ruled that the forms of ID lawmakers chose as acceptable weren’t necessarily the most secure kinds, and noted that legislators opted not to include other forms of state-issued identification, such as student or public assistance IDs, that were just as secure.

In the Texas case, the judges noted that Texas lawmakers had used voter fraud as a reason to make it harder for minorities to vote many times before, in passing laws that established all-white primaries, poll taxes and purges of voter rolls. The court asked Clemson University history professor Vernon Burton, an expert on race relations, whether these devices actually responded to sincere concerns or actual incidences of voter fraud. “No,” Burton said.

Supporters of voter identification laws say the Texas and North Carolina courts used the wrong criteria to evaluate the laws. They argue that the test should be whether the laws actually prevent anyone from voting or drive down turnout among minorities. Lawyers for North Carolina Gov. Pat McCrory told the U.S. Supreme Court that the appeals court’s decision relied “almost exclusively on evidence that the challenged provisions could have a disparate impact on minorities, even though it did not disturb the [trial court’s] finding that they will not actually do so.” During this year’s primaries, they noted, 2.3 million North Carolina voters cast votes. Only 0.008 percent of them were not counted.

Texas Attorney General Ken Paxton similarly maintains that his state’s law does not make it significantly harder for Texans to vote. “Indeed,” Paxton says, “President Obama’s Department of Justice, which sued Texas to block our voter ID law, never identified a single person who faced a legally substantial obstacle to voting during the dozens of elections where Texas’ voter ID law was enforced.”

For now, though, it appears that people who turn up to the polls in North Carolina, North Dakota, Texas and many other voter ID states won’t be turned away if they don’t have an ID on them. They will be able to cast a provisional ballot or sign an affidavit attesting to who they are. This situation does not satisfy either side in the larger dispute, but at the moment it appears to be the national norm. That is, of course, until and unless the Supreme Court steps in.

The last time the high court took up voter ID, Jimmy Carter and James Baker expressed hope that the justices would provide clarity and fairness. “The Supreme Court can lead the way on the voter ID issue,” they wrote eight years ago, in an op-ed during the consideration of Crawford v. Marion County. “It has the opportunity to inspire the states, our national leaders and the entire country to bridge the partisan divide on a matter that is important to our democracy. It can support voter ID laws that make it easy to vote but tough to cheat.”

Instead, Crawford only inspired more division. Soon, though, the high court may have a chance to revisit that legacy.