August 18, 2016, Trial News
Federal courts strike down four states’ voting restrictions
Federal courts recently blocked or overturned voting restrictions in four states: North Carolina, North Dakota, Texas, and Wisconsin. Each challenged law restricts people’s ability to vote in elections and requires voters to show certain forms of ID at the polls. The courts relied on the plaintiffs’ stories and on statistics demonstrating how hard it is to obtain the type of ID required to vote.
Federal courts recently blocked or overturned voting restrictions in four states: North Carolina, North Dakota, Texas, and Wisconsin. Each challenged law restricts voters’ ability to vote in elections and requires voters show certain forms of ID at the polls. The courts relied on the plaintiffs’ stories and on statistics demonstrating how hard it is to obtain the type of ID required to vote.
“These laws are, at their core, voter suppression laws,” said Montgomery, Ala., attorney Navan Ward, who is cochair of AAJ’s Voter Protection Action Committee. These states argued that voter ID and voting restrictions were necessary to combat voter fraud, but “there is simply no reliable evidence that voter fraud is an issue that would justify these types of laws,” Ward said. “It is my hope that other states will take note of these rulings and do the right thing by repealing similar laws.”
Texas. Senate Bill 14 (SB 14) was passed in 2011, and allows someone to vote only by presenting a Texas driver’s license or Department of Public Safety (DPS)-issued personal ID card, a U.S. military ID, a U.S. citizenship certificate with photo, a U.S. passport, a concealed-carry license, or an election identification certificate issued by DPS. Prior to SB 14, a voter registration certificate was sufficient. If someone did not have a certificate, he or she could present an affidavit and any form of ID, including a current or expired driver’s license, any photo ID (such as an employee or student ID), a utility bill, a paycheck, or a bank statement.
The plaintiffs—individual voters, Hispanic and voting rights groups, and the federal government—sought to enjoin enforcement of SB14. After a nine-day bench trial in October 2014, the district court struck down the bill. The court found it was passed with a racially discriminatory purpose, it had a discriminatory effect that violated Section 2 of the Voting Rights Act (VRA)—which prohibits voting practices that discriminate on the basis of race, color, or language—and it was a poll tax that violated the Fourteenth and Twenty-Fourth Amendments.
The Fifth Circuit reversed the discriminatory purpose and poll tax findings but agreed the law had a discriminatory effect. It remanded the case to the district court to address this issue before the 2016 election. (Veasey v. Abbott, 2016 WL 3923868 (5th Cir. July 20, 2016).)
North Carolina. North Carolina’s voter restrictions were enacted as Session Law 2013-381 in 2013, shortly after the U.S. Supreme Court’s decision in Shelby County v. Holder. (133 S.Ct. 2612 (2013).) That decision disarmed Section 5 of the VRA, allowing jurisdictions with a history of racial discrimination in voting—including parts of North Carolina—to avoid a federal requirement to pre-clear any voting restrictions with the U.S. Attorney General or a three-judge panel. Within weeks of Shelby County, North Carolina passed a law requiring in-person voters to show certain kinds of photo ID, removed the first week of the early voting period, eliminated same-day registration, eliminated out-of-precinct provisional voting, and ended preregistration—which allowed 16- and 17-year-olds obtaining their driver’s license to be automatically registered to vote upon turning 18.
The plaintiffs—the state NAACP, individual voters, African-American churches, voting rights groups, and the federal government—argued that these restrictions were passed with racially discriminatory intent, in violation of the Fourteenth and Fifteenth Amendments. In October 2014, the district court found that the legislature had considered race when it enacted the law, but it upheld the restrictions.
The Fourth Circuit reversed, finding that the legislature had acted with discriminatory intent and effect in violation of the Equal Protection Clause and the VRA, noting the restrictions “target African Americans with almost surgical precision. . . . [T]he legislature requested and received racial data as to usage of the practices changed by the proposed law.” After receiving that racial data, legislators amended the law to target each method of voting or form of ID that African Americans disproportionately used: the first seven days of early voting, same-day registration, out-of-precinct voting, and preregistration. (N.C. State Conference of the NAACP v. McCrory, 2016 WL 4053033 (4th Cir. July 29, 2016).)
Wisconsin. In 2011, Wisconsin enacted several restrictions: It imposed a voter ID requirement, restricted the in-person absentee voting period, eliminated corroboration (by which another voter could vouch for someone who lacked an ID), increased the state residency requirement before voters could cast a ballot in non-presidential elections, and eliminated straight-ticket voting. A later law limited the number of polling places for in-person absentee voting.
The plaintiffs—individual voters and two voting rights and public interest groups—challenged all of these restrictions, and the district court agreed in part. The court, for example, told the story of Mrs. Smith (a name used to protect her privacy)—an African-American woman born in Missouri in 1916. She has lived in Milwaukee since 2003 but does not have a birth certificate or any other document to definitively prove where and when she was born. She underwent the petition process at the state DMV to receive an ID, and while state employees found her records in the 1930 census, they could not find a Missouri birth record—so they could not issue her an ID.
The district court struck down the restrictions on in-person absentee voting, the restricted residency requirements, a provision preventing voters from using expired student IDs, and ordering reforms to the ID petition process for voters who didn’t have required documentation. The court ordered a permanent injunction, and the state has appealed. (One Wisc. Inst., Inc. v. Thomsen, 2016 WL 4059222 (W.D. Wisc. July 29, 2016).)
North Dakota. This state has unique voting laws. As the district court described, “election boards and poll workers generally knew who were and who were not eligible voters in their precincts.” Voters could provide a valid form of ID—anything containing an address and a birthdate—or they could rely on two failsafe measures: a poll clerk could vouch for the voter or the voter could execute an affidavit swearing he or she could vote in that precinct.
In April 2013, the legislature removed the failsafe mechanisms and limited the types of valid ID that could be presented for voting: a North Dakota driver’s license, a North Dakota non-driver ID card, a tribal government-issued ID, a student ID, or a long-term care ID. Two years later, the legislature removed the option to use student IDs, clarified that a military ID was not sufficient, and removed the North Dakota Secretary of State’s ability to authorize new forms of valid voter ID.
Plaintiffs challenged the new laws for eliminating the failsafe provisions, arguing that Native Americans are disproportionately affected. They provided statistics showing that 23 percent of Native Americans lack a valid voter ID and that 21 percent are unaware of the new laws. Native Americans also have to travel, on average, twice as far to a Driver’s License Site than non-Native Americans—and 74 percent of Native Americans who lack an ID also don’t own a car.
The state did not challenge these statistics and the court concluded that the law placed severe burdens on the Native American population. The court granted a preliminary injunction, noting “[I]t is critical . . . North Dakota provide Native Americans an equal and meaningful opportunity to vote in the 2016 election.” (Brakebill v. Jaeger, No. 1:16-cv-00008-DLH-CSM (D.N.D. Aug. 1, 2016)).
Patricia Cooley, AAJ’s Director of State Affairs, called the decisions a step in the right direction. “These judges are listening to both sides of the argument and are seeing the real intentions behind these laws. . . . States can’t put in place rules that adversely impact—or target—minorities.” But states can appeal (as North Carolina already has), injunctions can be lifted or emergency stays ordered, and other states can press forward with their own legislation, Cooley noted. “Unless there’s a Supreme Court ruling across the board that says these provisions aren’t allowed, I would anticipate other states trying to enact similar legislation,” she said.