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While media attention focuses on the presidential campaign, courts are making changes in voting laws in ways that could impact election outcomes in 2016 and beyond.
Under the banner of combating voter fraud, Republican-run legislatures have in the last several years passed a slew of stringent voter identification laws, some of which also limited the hours of voting and registration. But such laws received a potentially significant setback last month when a federal appeals court invalidated part of a restrictive Texas law on grounds it discriminates against minorities.
Meanwhile in North Carolina, the U.S. Justice Department alleges in a lawsuit filed under the Voting Rights Act that the Tar Heel state also targeted minorities with a 2013 law that required photo identification, reduced voting hours and abolished same-day registration. This lawsuit spurred changes even before it was tried. Shortly before the trial commended in federal court, the North Carolina legislature amended the law, which takes effect in 2016, to allow voters who lack a required photo ID to cast a provisional ballot.
Because North Carolina is one of the nation’s most closely contested swing states, the Justice lawsuit is being keenly watched by both parties. Barack Obama carried North Carolina in 2008; four years later it was the only state that moved from Democrat to Republican, delivering its electoral votes to Mitt Romney.
Voter identification is an issue that has been around for decades, but requiring a photo ID is a modern development. In 2005, the Republican-controlled legislature in Indiana approved a law requiring photo identification, which after a prolonged legal battle was upheld by the Supreme Court in 2008. Encouraged by the court’s decision, Republicans began a nationwide drive for strict voter ID after gaining control of a majority of legislatures in the 2010 midterm elections. Over the next three years 17 states passed strict voter ID laws or tightened existing measures.
Democrats and civil rights groups resisted in court, saying that the declared Republican purpose of reducing fraud was a fig leaf for the political goal of erecting voting barriers for minorities and poor people. At best, they claimed, strict voter ID laws fixed a process that wasn’t broken. According to testimony in the North Carolina lawsuit, there have been just four cases of voter impersonation in the Tar Heel State in the last 15 years. A 2014 study by Loyola Law School in Los Angeles found only 31 instances of voter impersonation among the approximately one billion ballots cast in all U.S. elections since 2000.
Opponents of strict voter ID have won occasional victories, with state courts striking down such laws in Arkansas, Missouri and Pennsylvania. Presently, according to a compilation by Wendy Underhill of the National Conference of State Legislatures (NCSL), 32 states require some form of voter identification. She classifies 21 of them as “non-strict” and 11 as “strict.” Non-strict states allow voters who lack acceptable identification to cast a provisional ballot that may be counted without further action of the voter. Many non-strict states also permit easily obtainable identification such as a utility bill or a bank statement. Strict states are more limiting. For example, the Texas law now on hold requires a government-issued photo ID such as a driver’s license, passport, or certificate issued by the state’s Department of Public Safety.
Although the Texas law raises constitutional issues, it may never reach the Supreme Court. Having spoken on the Indiana voter ID law, the high court seems disinclined to revisit the issue; in March it declined to hear a challenge to Wisconsin’s strict voter ID law. This has left decision-making to lower federal courts, which are playing a mediating role. The appeals court that invalidated the Texas law tiptoed around the trial judge’s finding that the Legislature intentionally discriminated against minorities. Instead, in a complex ruling, the court said that the law “had the effect” of discriminating and sent the case back to the trial judge for re-hearing.
Likewise in North Carolina, the federal court has asked both sides to submit proposals for changes in the law in the hope of forging a mutually acceptable compromise.
Voter ID laws are probably here to stay, but so far have had minimal impact. As Underhill observes, voter ID is just one of many factors influencing turnout, and some of the other factors loom larger. In 2012, respected polling analyst Nate Silver estimated that strict voter ID laws would reduce turnout by 2.4 percent. But in Indiana and Georgia, the first states where strict voter ID laws were tested at the ballot box, minority (and overall) turnout increased, boosted in large part because Barack Obama’s name was on the ballot. Also in 2012, the Republican Majority Leader (and now Speaker) of the Pennsylvania House, Mike Turzai, asserted that the state’s strict voter ID law would deliver the Keystone State to Romney. Instead, Obama carried Pennsylvania by more than 300,000 votes. When a state court two years later struck down the Pennsylvania law, the Republican governor didn’t even bother to appeal.
Is the attraction of strict voter ID waning for Republicans? Perhaps. No one is making any announcements, but it’s noteworthy that after the passage of so many such laws in the three years from 2011-13, there were no new enactments in 2014 or 2015. By asserting that these laws targeted minorities, opponents of strict voter ID have made the debate about alleged discrimination at a time the nation has become racially charged. It’s hard to see why any Republican would want to become immersed in a racial discussion over laws that have so little political payoff.
But while strict voter ID laws may have lost some of their luster, the broader issue of ballot access remains potent. In Ohio earlier this year a compromise was reached over a law passed by the GOP-controlled legislature that reduced early voting and abolished a so-called “golden week” in which persons could register and vote on the same day. The case was headed for the Supreme Court with neither the plaintiffs – the American Civil Liberties Union of Ohio and the NAACP – nor the defendants confident of victory. So the two sides sensibly hammered out a settlement. The golden week is gone, but Ohioans will now be able to cast ballots on Sundays and in the evening for several weeks before Election Day. ACLU legal director Freda Levenson said the settlement means that “more voters will have a chance to actually vote.”
Unfortunately, ballot access in the form of early voting remains inadequate in several states outside the South, many controlled by Democrats, where restrictive rules have gone unchallenged by civil liberties groups or the government. In a provocative editorial in Bloomberg View headed “The Wrong Way to Fix the Voting Rights Act,” David Shipley questioned the practice of the Justice Department – and the law itself – in focusing only on states with a history of discrimination. The Department of Justice is suing North Carolina because it reduced early voting hours and ended Election Day registration. But as Shipley observed, New York State has no early voting or same-day registration and its overall rules are more restrictive than North Carolina’s.
“In practice, violations of the Voting Rights Act only occur when states limit voting opportunities, not when they fail to expand them,” Shipley wrote.
Two years ago, in an opinion written by Chief Justice John Roberts, the Supreme Court struck down a section of the 1965 Voting Rights Act that required states and counties, mostly in the South, with a history of past discrimination to obtain “pre-clearance” from the Justice Department for changing voting rules. Democrats in Congress and the president seek to restore that requirement. It would be even worthier to offer a broader bill that guarantees ballot access to everyone, not just residents of states that have discriminated in the past.
Pre-Election Voting Restricted In Many States
In most states eligible voters can cast their votes before Election Day, either by going to the polls during designated early voting periods or by voting via absentee ballot. But 30 states have no early voting period, although 13 of those states allow voters to cast absentee ballots in person before an election and another three do voting entirely by mail. Twenty states allow absentee voting only with an excuse. And 14 states fall into both categories, having no early voting period and allowing absentee voting only with an excuse. Note: Indiana allows absentee voting, but only in person and with justification.
Source: National Conference of State Legislatures
By-mail voting only: Colorado, Oregon, Washington
“In-person absentee” voting: Idaho, Indiana, Iowa, Maine, Minnesota, Montana, New Jersey, Ohio, Oklahoma, South Dakota, Vermont, Wisconsin, Wyoming
Absentee voting only with excuse: Arkansas, Indiana, Louisiana, Tennessee, Texas, West Virginia
No early voting and absentee voting only with excuse: Alabama, Connecticut, Delaware, Kentucky, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, Pennsylvania, Rhode Island, South Carolina, Virginia.
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