Why Voter ID Laws Are Losing Judges' Support

In one week, federal courts struck down such laws in four states, marking a significant shift in the legal battle over voting rules.
by | August 3, 2016

After years of legal setbacks, voting rights advocates are increasingly hopeful that momentum has shifted their way.

Over the past week, federal courts have issued sometimes scathing rulings against laws that made it harder for citizens to vote in Kansas, North Carolina, North Dakota and Wisconsin. And last month, the 5th Circuit Court of Appeals ruled that Texas' voter ID law, considered the strictest in the nation, discriminates against minority voters and ordered a lower court to fix it before November.

"The courts have really come out strongly in defense of the basic principle that every American citizen has the right to vote free of manipulation and suppression, particularly this racially discriminatory suppression that we've had," said Liz Kennedy, director of the government and democracy reform project at the left-leaning Center for American Progress.

Nearly three dozen states, mostly controlled by Republicans, have enacted laws in recent years requiring voters to present a government-issued photo ID. They argue it's necessary to prevent voter fraud. Democrats and civil rights groups, however, point out that voter fraud is a vanishingly rare problem (present in 3 of every 1 million votes, according to one study). They say the true motivation is to keep minorities and other groups that are more likely to vote Democratic from easily casting their ballots.

In addition to voter ID laws, some GOP-led states have also reduced the number of early voting days or made it more difficult for citizens to register to vote. Such changes have also led to legal battles.

"I think it's become clear to policymakers that the courts are going to be pushing back," said Barry Burden, director of the University of Wisconsin's Election Research Center, who testified against his state's voter ID law. "It's not one rogue judge. It's a series of district courts and appeals courts that are saying to the states, you've gone too far."

The U.S. Supreme Court gave voter ID laws its blessing back in 2008 in a case known as Crawford vs. Marion County Election Board that upheld an Indiana law. After the GOP won control of more states during the 2010 elections, numerous legislatures passed voter ID restrictions. Momentum accelerated even more after the 2013 Supreme Court ruling that overturned parts of the federal Voting Rights Act in a case known as Shelby County vs. Holder.

Prior to that ruling, all or parts of 14 states were subject to preclearance, meaning the federal Justice Department had to approve any changes to their election laws. Once free to pass changes without federal permission, some states enacted strict voting rules.

"If you look at the North Carolina and Texas laws, they're much stricter than the Indiana law that the Supreme Court upheld in the 2008 Crawford case," said Rick Hasen, an election law professor at the University of California, Irvine.

Republicans continue to defend these laws as necessary for preventing voter fraud, but the courts aren't buying that argument anymore.

"Voter fraud in North Dakota has been virtually non-existent," wrote District Judge Daniel Hovland in a ruling Monday. By contrast, he found that "the record is replete with concrete evidence of significant burdens imposed on Native American voters attempting to exercise their right to vote in North Dakota."

Hovland noted that plaintiffs in the Crawford case hadn't been able to show harm imposed by a voter ID requirement. But over time, that's changed.

"When Crawford was decided, these laws were relatively new and the evidence was relatively thin," said Danielle Lang, voting rights counsel at the Campaign Legal Center, which opposes the restrictive laws. "The voting rights community has done a very good job of putting up facts and building up a factual record of people who are affected."

A 2014 study by the U.S. Government Accountability Office found that voter turnout dropped by about 2 percent in Kansas and Tennessee, when compared to other states that didn't have voter ID requirements.

And who's not voting in voter ID states? Often, members of groups that might be inclined to vote Democratic. In North Carolina, the 5th Circuit found that legislators had sought to reduce or eliminate methods of voting used primarily by African-Americans with "almost surgical precision."

The court found that unacceptable.

"We recognize that elections have consequences, but winning an election does not empower anyone in any party to engage in purposeful racial discrimination," ruled Judge Diana Gribbon Motz. "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."

Despite the recent rulings, the voting wars aren't over. Some of these cases will be appealed, while voting cases in Alabama, Ohio and Virginia are still making their way through the legal process.

Nevertheless, with judges worried about discrimination and openly skeptical of voter fraud claims, voter ID proponents are losing allies on the bench. Most importantly, the death of Antonin Scalia and the now longstanding vacancy on the Supreme Court means there's no longer a fifth vote to overturn the recent appellate rulings.

"There must be something wrong with all these laws that keep getting struck down by the courts," said Kennedy, of the Center for American Progress. "The courts have finally said that the balance of the harm is on the side of voters."