Wisconsin Attorney General Brad Schimel sought to restore the state’s full voter ID law Monday, asking a federal appellate court to take emergency action. The Republican attorney general’s action Monday came in the wake of a ruling last month by a federal judge in Milwaukee that pared back the photo ID law by allowing voters without identification to cast ballots by swearing to their identity.
Courts have dealt setbacks in three states to Republican efforts that critics contend restrict voting rights—blocking a North Carolina law requiring photo identification, loosening a similar measure in Wisconsin, and halting strict citizenship requirements in Kansas. The rulings Friday came as the 2016 election moves into its final phase, with Republican Donald Trump and Democrat Hillary Clinton locked in a high-stakes presidential race and control of the U.S. Senate possibly hanging in the balance. North Carolina is one of about a dozen swing states in the presidential race, while Wisconsin has voted Democratic in recent presidential elections and Kansas has been solidly Republican. The decisions followed a similar blow earlier this month to what critics said was one of the nation’s most restrictive voting laws in Texas. The New Orleans-based U.S. 5th Circuit Court of Appeals said Texas’ voter ID law is discriminatory and must be weakened before the November election.
Shortly after Barack Obama’s victory in the 2008 presidential election, the former chair of the North Carolina Republican party wrote an anxious postmortem saying something had to be done about the students and black voters whose unprecedented turnout had turned the state blue for the first time in 32 years. The alternative, the former state chair Jack Hawke wrote, was that the country would “continue to slide toward socialism”. That “something” turned out to be a notorious omnibus law – better known to its detractors as the “monster law” – passed by a Republican-majority state legislature in 2013. The legislation gutted many of the progressive voting rules that had contributed to Obama’s razor-thin margin in the state: same-day registration, a lengthy early voting period and out-of-precinct voting by provisional ballot – all favored disproportionately by African American voters and students. The law also introduced a strict voter ID requirement, with the anticipated effect of suppressing Democratic votes even further.
As the courts work their way through claims against ID and other voting restrictions, they continue on a course of “softening” voting impediments but not eliminating them altogether. They remain reluctant to deny states the authority to enact rules, on virtually non-existent evidence, to protect against in-person voter fraud. Remedies are then fashioned that provide relief to voters facing a “reasonable impediment” to voting but the question has been legitimately raised: how much of an impact can these sorts of measures be expected to have? Like the right to a provisional ballot provided for under HAVA, these other remedies– like accommodating indigent voters with access to cost-free identification–help voters, but only a limited number. The reach and effectiveness of these measures depend upon the states’ performance of their obligations: the information they provide to voters, and the good faith and competence with which they administer the remedies. The same may be true of more robust remedies, like the option recently ordered for Wisconsin, affording access to an affidavit alternative to documentary identification.
A federal appeals court on Friday struck down North Carolina’s requirement that voters show identification before casting ballots and reinstated an additional week of early voting. The unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit was an overwhelming victory for civil rights groups and the Justice Department that argued the voting law was designed to dampen the growing political clout of African American voters, who participated in record numbers in elections in 2008 and 2012. “We can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent,” Judge Diana Gribbon Motz wrote for the majority.
You can find the 83 pages of decisions at this link. A partially divided panel of 4th Circuit judges reversed a massive trial court opinion which had rejected a number of constitutional and Voting Rights Act challenges to North Carolina’s strict voting law, a law I had said was the largest collection of voting rollbacks contained in a single law that I could find since the 1965 passage of the Voting Rights Act. The key part of the holding is that North Carolina acted with racially discriminatory intent. However, despite this finding of discriminatory intent, the 4th Circuit refused to use its discretion to put North Carolina back under federal supervision for up to 10 years for its voting. “Such remedies ‘[are] rarely used]’ and are not necessary here in light of our injunction.” Nonetheless, the finding of intentional discrimination could be the basis for a future argument for section 3 should North Carolina pass other discriminatory voting laws. What happens next? North Carolina could decide to go along (there’s nothing to do on remand in this opinion as the 4th Circuit wrote it). Or it could seek to take the case to the 4th Circuit en banc or to the Supreme Court. The state could well go to the 4th Circuit en banc; although that court is not nearly as conservative as it once was, not sure what North Carolina has to lose. And NC could go to the Supreme Court, as the case presents the very rich question of what it means to to engage in racially discriminatory intent when race and party so overlap. (I addressed this question in this Harvard Law Review forum piece: Race or Party?: How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere). It is not clear that the evenly divided and shorthanded Supreme Court will bite, and I expect any attempt to get emergency relief from the Supreme Court will fail.
Voting rights activists scored legal victories in key presidential election states Friday, the most important being a federal appeals court ruling that North Carolina’s Republican-led legislature enacted new voting restrictions in 2013 to intentionally blunt the growing clout of African American voters. The unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit was an overwhelming victory for the Justice Department and civil rights groups. Election law experts consider North Carolina’s voter law one of the nation’s most far-reaching. In Wisconsin, where one federal judge already had eased restrictions on voter-ID requirements, a second judge found that additional elements of the law passed by the legislature and signed by Gov. Scott Walker (R-Wis.) were unconstitutional.
Federal appellate judges on Friday struck down a 2013 law limiting voting options and requiring voters to show photo ID at the polls, declaring in an unsparing opinion that the restrictions “target African Americans with almost surgical precision.” The three-judge panel of the U.S. 4th Circuit Court of Appeals found that the law was adopted with “discriminatory intent” despite lawmakers’ claims that the ID provision and other changes were designed to prevent voter fraud. The ruling – which could have implications for voting laws in other states and possibly for the outcome of close races in the swing state of North Carolina – sent the case back to U.S. District Judge Thomas Schroeder, who in April issued a 485-page decision dismissing all claims in the legal challenge.
Voter ID in Texas violates the Voting Rights Act, and the state must develop new rules before the November election. That was the definitive statement in a majority opinion, nine to six, issued by the 5th Circuit Court of Appeals last week. But don’t put your driver’s license away quite yet. While the court has ruled that the current state rules are in the wrong, no one knows what the replacement rules will look like. Travis County Clerk Dana DeBeauvoir said, “We don’t know very much. The takeaway is that we don’t know what to do.” The core issue was the strict photo ID requirements passed in 2011’s Senate Bill 14, which have been facing legal challenges for half a decade. In 2012, the Justice Department blocked implementation of the rules, and then the state lost its first major defense in 2014, when U.S. District Judge Nelva Gonzales Ramos found that the law did indeed suppress minority voters. The majority opinion of the 5th Circuit’s 15-member appeals bench upheld the core ruling of the lower court, and instructed it to create interim rules in time for the November 8 general election.
Finding that Republican lawmakers had discriminated against minorities, a federal judge Friday struck down parts of Wisconsin’s voter ID law, limits on early voting and prohibitions on allowing people to vote early at multiple sites. With the presidential election less than four months away, GOP Attorney General Brad Schimel said he plans to appeal the sweeping decision by U.S. District Court Judge James Peterson. Peterson also turned back other election laws Republicans have put in place in recent years. “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities,” U.S. District Judge James Peterson wrote. “To put it bluntly, Wisconsin’s strict version of voter ID law is a cure worse than the disease.”
As North Dakota’s Republican-controlled government has in effect admitted, North Dakota Democrats were right about the need for a special session. The governor rejected the Democrats’ call earlier this year, but the state’s deteriorating finances prompted him to change his mind. The special session begins next week. But North Dakota Democrats now have been proven right on a second key issue: the claim that North Dakota’s new Voter ID law is too restrictive. The verdict on that question is in, having been rendered by federal courts in both Texas and Wisconsin and forcing both states to put new procedures in place before November. News flash: North Dakota’s Voter ID law is more restrictive and allows for fewer options than either the Texas or Wisconsin laws. That means it almost certainly violates federal law, and will unconstitutionally block voting among key groups of North Dakotans in November—unless it is changed.
Last week, a federal appeals court ruled Texas’ voter ID law makes it harder for minorities to vote. The state was told it could no longer enforce the law as is. Early voting in the first election since that ruling is now underway, so that special election in Bexar County is following a new set of rules. Voters started heading to the polls yesterday in a special election for House District 120, the race to replace state Rep. Ruth Jones McClendon, who retired this year, and the timing of the voter ID ruling had lawyers scrambling. “We were informed of the election I think on Friday morning. And we finished our negotiations at two o’clock in the morning Saturday morning,” said Ezra Rosenberg with the Lawyers Committee for Civil Rights Under Law and a member of the legal team that represented a group of Texas voters fighting the state’s law.
The Texas state motto is friendship, and even across the political divide in our state Legislature, Texans should hope that everyone is acting in that sense of good faith. It’s hard to maintain that political optimism after reading last week’s opinion by the U.S. Court of Appeals for the 5th Circuit explaining how Texas’ voter ID law violates the Voting Rights Act. The Legislature passed SB 14, the law in question, in 2011 allegedly with the intent of combatting in-person voter fraud by creating strict limits on the types of identification that can be accepted at voting locations. Before this law, Texans had to present their voter registration card or sign an affidavit while showing one of multiple forms of identification, such as a driver’s license or bank statement. Was there rampant fraud under this system? No, and Texas legislators knew it. “Ballot integrity is undoubtedly a worthy goal,” Justice Catharina Haynes wrote for the court. “But the evidence before the Legislature was that in-person voting, the only concern addressed by SB 14, yielded only two convictions for in-person voter impersonation fraud out of 20 million votes cast in the decade leading up to SB 14’s passage.”
Just 15 weeks before Election Day, lawsuits in nine states are raising the possibility that voters in crucial battlegrounds will face confusion over how and when to cast their ballots. The lawsuits, mostly brought by civil rights groups, take aim at the flurry of election laws recently put in place by states, including requirements that voters provide photo identification or proof of citizenship. In recent weeks, several courts have issued rulings blocking or upholding the laws, but those rulings have at times been contradictory, sowing even more confusion. The suits, which have spent years in a maze of federal courts, focus mainly on laws passed by Republican-led legislatures after the 2010 midterm elections. Those laws, voting rights advocates say, are part of a determined strategy to restrict access to the ballot box. “There is no question that a series of legislative actions by Republican legislatures have made it harder for some people to register and vote in the upcoming elections,” said Richard Hasen, a voting rights expert at University of California-Irvine School of Law.
Though the presidential race is tightening, few observers are forecasting a replay of the 2000 election—when the vote was so close that it took 35 days and a Supreme Court decision to name a winner. But if predictions about what will transpire on November 8th are as reliable as last year’s dismissals of Donald Trump’s prospects in the primaries, the Trump-Clinton outcome may end up resting on a few thousand votes in a handful of states. In that event, three recent court rulings against Republican efforts to stack the electoral deck in their favour may play a role in staving off a President Trump. In Michigan, where Mrs Clinton’s lead over Mr Trump is narrowing by the day, a federal judge on July 21st ruled against a Republican Party-sponsored law meddling with the contours of the election ballot. For 125 years, Michigan voters have had the option of straight-ticket voting, where filling in a single bubble registers one’s preference for every candidate from a given party. Banning this practice, said Judge Gershwin Drain, disproportionately impacts black voters who use the straight-party option in high numbers. Since “African-Americans in Michigan, as in the rest of the country, tend to vote overwhelmingly for Democrats”, and since filling in a bubble for each candidate takes much longer, the law will increase “voter wait times…greatly in African-American communities”, endangering their right to vote and dimming Democrats’ chances for electoral success. In a remarkable series of references, Judge Drain cited Mr Trump’s “ethnocentric” speeches, situating the Michigan law in the context of the “racially charged rhetoric” of the presidential campaign.
Texas’ strict voter ID law will be weakened to allow voters lacking required photo identification to cast ballots in a San Antonio special election by signing an affidavit, a federal judge ordered. U.S. District Judge Nelva Gonzales Ramos in Corpus Christi has agreed to an affidavit option for voters facing a “reasonable impediment” to obtaining one of seven photo IDs accepted under state law. Ramos’ order is tailored specifically to the runoff election for the House District 120 seat vacated by former state Rep. Ruth Jones McClendon, but it marks the first time the state’s voter ID law will be implemented in a watered-down manner. The law has been used since 2013.
Local NAACP officials say it’s getting harder for poor people and people of color to vote, and they point to Tennessee’s 2011 voter ID law as part of the problem. “This year, we determine if America is a place for everyone or a place for a few,” said City Councilman Yusuf Hakeem, who spoke at the NAACP’s State of the Vote 2016 meeting this month. “Some of the obvious things that should tell us how important voting is, is the effort to keep people from voting, like the new voting ID Laws,” Hakeem said. “We don’t want to give people looking to the past a free ride by not even going to the polls.” The website WalletHub says Tennessee’s black voters are among the least politically engaged in the nation. The website said its research showed Tennessee ranked 43rd among 48 states for black turnout.
The Republican Party fares much better in state and midterm national elections than in presidential election years. There’s an obvious reason: Fewer people vote in state and off-year elections, and these electorates tend to be whiter and more affluent. So it’s really no surprise that at the state level, Republicans have been passing laws that attempt to suppress the vote in all elections, so that every electorate looks like the whiter, richer off-year electorate. On Wednesday, however, a major Fifth Circuit decision dealt a serious blow to these efforts. Much of Texas’ particularly draconian voter-ID law was struck down, and the decision will almost certainly remain in effect in November. Even more important, the court identified the core problem with these laws: Their vote suppression is racially discriminatory.
With the presidential election only four months away, Wisconsin Attorney General Brad Schimel is seeking to fast-track his appeal of a federal-court decision that scaled back the state’s voter ID law. On Friday, Schimel, a Republican, asked a federal judge to stay his decision made earlier this week, saying the court had acted improperly and that its ruling threatened to confuse voters in the run-up to an election. The state says it will appeal the ruling to the 7th U.S. Circuit Court of Appeals in Chicago.
Federal courts have reined in strict voter ID laws in Texas and Wisconsin, while a legal battle continues to rage over North Carolina’s rules mandating showing identification at the polls — even after lawmakers there took pre-emptive steps to soften them. The court ruling almost certainly won’t be enough for Democrat Hillary Clinton to win fiercely conservative Texas in November, and Wisconsin has been reliably blue enough in recent presidential cycles that the legal setback for its voter ID law may not prove decisive, either. North Carolina could be enough of a swing state that the fate of its election rules may have an impact — but exactly where its voter ID requirements will stand by Election Day on Nov. 8 remains to be seen. What is coming into clearer focus is just how hard it could be for Republican-controlled states to enforce tougher ballot box restrictions that energized conservative activists when they were approved in statehouses around the country in recent years. That means an issue that looked to be a slam dunk for the right following the rise of the tea party in 2010 may actually be little more than an afterthought during this year’s make-or-break presidential election.
Texas’ voter identification law violates federal laws prohibiting electoral discrimination and must be amended before the November election, an appeals court ruled Wednesday. The New Orleans-based 5th U.S. Circuit Court of Appeals struck down the heart of the 2011 state law, widely viewed as one of the nation’s strictest requirements, ruling that it violates Section 2 of the Voting Rights Act. The ruling does not nullify the entirety of the law, so voters will still need to show identification at the polls in November. But a lower court will need to create some form of interim relief until it can develop a more comprehensive solution for those who face obstacles to obtaining an ID. “The record shows that drafters and proponents of SB 14 were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact,” Judge Catharina Haynes wrote in the ruling.
Paring back the state’s voter ID law four months before the presidential election, a federal judge ruled Tuesday that Wisconsin voters without photo identification can cast ballots by swearing to their identity. The decision by U.S. District Judge Lynn Adelman in Milwaukee creates a pathway for voters with difficulties getting IDs who have been unable to cast ballots under the state’s 2011 voter ID law. “Although most voters in Wisconsin either possess qualifying ID or can easily obtain one, a safety net is needed for those voters who cannot obtain qualifying ID with reasonable effort,” Adelman wrote in his 44-page decision. The judge issued his preliminary order because he found that those arguing for a pathway for some voter without IDs were “very likely” to succeed.
A federal judge says a lawsuit over Alabama’s voter identification law will go to trial in the fall of 2017. U.S. District Judge L. Scott Coogler has set the trial for Sept. 11, 2017, in Birmingham federal court. Greater Birmingham Ministries and the NAACP challenged the law as an infringement on voting rights that disproportionately affected the black and Latino voters.
Mississippi Secretary of State Delbert Hosemann says Mississippi’s voter ID law was crafted with input from the U.S. Department of Justice, which was completely different than Texas’ voter ID law that was struck down this week by the 5th Circuit U.S. Court of Appeals. “We took a completely different tactic than Texas,” Hosemann said Thursday. “We did it right.” He said the voter ID law struck down in Texas had a charge to verify birth certificate and no funds were provided for a public awareness program. Hosemann said Mississippi will provide free rides to and from circuit clerk’s offices for individuals to obtain free voter photo ID cards that can be presented at the time of voting. If individuals need it, circuit clerks can search for a person’s birth certificate at the clerk’s office that can be used to verify that person’s identity so a voter ID card can be issued.
An attorney for Native Americans fighting recent changes to North Dakota’s voter identification laws said Thursday a federal appeals court ruling this week declaring a similar Texas law to be discriminatory “certainly enhances our case.” Seven members of the Turtle Mountain Band of Chippewa filed a federal lawsuit in January against North Dakota Secretary of State Al Jaeger, arguing that voter ID requirements passed by the state’s Republican-controlled Legislature in 2013 and 2015 are unconstitutional and “disproportionately burden and disenfranchise” tribal members. One of their attorneys, Tom Dickson of Bismarck, was encouraged by Wednesday’s 9-6 ruling by the U.S. Circuit Court of Appeals for the 5th Circuit, which found a Texas law requiring voters to show a government-issued ID is discriminatory and violates the U.S. Voting Rights Act.
Ever since Texas’ strict voter identification law was passed in 2011, Democratic lawmakers and minority groups had focused on how to get it struck down. This week, after a federal appeals court ruled that the law discriminated against minorities, there is a new, equally vexing question: how to fix it. The appellate court’s decision kept the law in place but instructed a lower court judge to come up with procedures to minimize the law’s effect on those who do not have an approved form of government-issued photo ID or who face hurdles in easily obtaining one, many of whom are black or Hispanic. North Carolina, South Carolina and other states that have passed voter ID requirements have had similar court battles over how, and whether, to loosen their rules to accommodate poor and minority voters. One option is allowing voter-registration cards to be used as ID. Those cards are mailed to voters and do not have a photograph, and might be more readily available to an impoverished voter than a government-issued photo ID. Another option is expanding the list of acceptable IDs to include student IDs or government-employee IDs. And yet another possible solution involves having the state exempt the poor from having to show a photo ID to vote, an exception modeled on Indiana’s voter ID law.
Wednesday’s ruling by a federal appeals court against Texas’s voter ID law looks likely to lower a massive barrier to voting that had threatened to disenfranchise large numbers of the state’s minority voters. The ruling also offers a stinging rebuke to state lawmakers and officials who enacted and defended the law. And its cogent dismantling of many of the key claims advanced by backers of strict ID laws — all the more remarkable coming from a conservative-leaning court — could have implications beyond the Lone Star State. Still, exactly what happens next — and what it all means for voters this November — remains somewhat up in the air.
Texas will have to engage in a “meaningful” education campaign about its beleaguered voter ID law and some people lacking required photo identification may be allowed to once again use voter registration cards to cast ballots in the November election, a federal judge said Thursday. In a two-page order, U.S. District Judge Nelva Gonzales Ramos in Corpus Christi provided the first blueprint for potential fixes for Texas’ voter ID measure – one day after a federal appeals court said the law violates federal protections against discrimination at the ballot box. The U.S. 5th Circuit Court of Appeals, largely considered one of the most conservative courts in the country, dealt Texas Republicans a big hit in ruling that the law violates a key section of the Voting Rights Act. The court sent the case back to Ramos, who ruled last year the law flouts federal protections for blacks and Hispanics. She was ordered to make changes before the presidential election to ensure it no longer unfairly harms poor and minority Texas residents.
In time for the presidential election, an appeals court has determined that Texas’ voter identification law is discriminatory. Those without a government-issued photo ID will therefore have their votes counted on the basis of other evidence of residency. If Texas turns out to be in play in November, the result could have a small but meaningful effect in Hillary Clinton’s favor. More important, the decision has great symbolic significance in an election in which Donald Trump has focused on illegal immigration. In 2008, the U.S. Supreme Court upheld a voter ID law in Indiana as a permissible way to avoid voter fraud. The different result in Texas — a state with distinctly different demographics — highlights how much things have changed in the last eight years. A federal district court had previously found that the Texas law, S.B. 14, violated both the Voting Rights Act and the Constitution, and a panel of the U.S. Court of Appeals for the 5th Circuit upheld part of the decision. Texas then asked the entire court to sit and reconsider the result. In the meantime, the 5th Circuit issued a stay that kept the law in place. The plaintiffs asked the Supreme Court to reinstate the lower court decision and block the law. In an unusual move, the justices told the 5th Circuit that if it didn’t decide the case by July 20, 2016, the court would be willing to consider a motion to block the law. The Fifth Circuit got the message — and issued its carefully crafted opinion on July 20.
Wisconsin’s voter ID law was a mistake from the start; a political talking point dressed up as policy, aiming to fix a problem that doesn’t exist. And although the law isn’t particularly onerous for most people, there are some for whom obtaining the necessary ID is substantially difficult. So difficult that some won’t — or won’t be able to — go through the hassle of getting one. On Tuesday, U.S. District Judge Lynn Adelman threw those people a lifeline, or “safety net,” as he called it. Adelman issued a preliminary ruling allowing Wisconsin voters without photo identification to cast ballots by swearing to their identity. Good for Adelman; allowing people to use affidavits to vote opens the ballot door to those who otherwise might not cast a ballot.