Strict Voter ID Blocked for 2012 - But What About the Future?

WASHINGTON, Oct. 15, 2012 — -- Opponents of strict voter ID laws have had a good run in the courts recently.

In the past few months, federal and state judges have used different legal grounds to block voter ID laws from going into effect during the next election in South Carolina, Pennsylvania, Texas and Wisconsin.

On Oct. 10, a federal court blocked South Carolina's law for the next election.

But in many cases, the rulings are only temporary halts or are subject to appeal. In fact, in the case of South Carolina, the court is allowing that law to go into effect in 2013.

Opponents of strict voter ID laws fear that the battle is just beginning.

"Since 2011, there have been a slew of new restrictive voter ID laws that have the potential to disenfranchise millions of eligible voters," said Katherine Culliton-Gonzalez, director of Voter Protection for Advancement, a group involved in challenges in several of the states. "We've fought back and won against the most restrictive being put in effect before this election. But we are still extremely concerned."

She is worried about states appealing injunctions and other states passing new laws.

"Our nation's great debate and controversy over voter ID laws will continue," she said. "We need to keep on fighting and winning."

Thirty-one states have requirements for all eligible voters to show identification prior to casting a ballot in the upcoming election, but the acceptable forms of documentation vary. Some states are satisfied if a voter brings in a recent utility bill. Others insist on government-issued photo identification.

The more strict photo ID laws have been passed by Republican legislatures that argue they are meant to combat voter impersonation at a polling place. Democrats argue there is no real problem with voter fraud and the real goal of the laws is to suppress the votes of the poor or the elderly who might have difficulty obtaining the necessary identification.

"Some Republican legislatures just got too greedy," said Daniel P. Tokaji of Moritz College of Law at Ohio State University. "They passed very strict laws that were clearly designed to depress turnout. There wasn't much of a credible reason offered for some of these laws and the courts called them on it. The courts smelled a rat."

But Carrie Severino of the conservative Judicial Crisis Network said that the judges, in some cases, were concerned with the proximity of the next election and wanted to make sure the eventual rollout of the new laws would go smoothly.

"In the case of Pennsylvania, the timing before the election is really tangential to the challenge," Severino said. "The laws may not be able to be put in effect for this election, but they certainly ought to be for future elections. Practically speaking, Americans use photo IDs in numerous aspects of their lives. As long as the states are providing free options for those who don't yet have IDs, there shouldn't be a concern."

The strict voter ID challenges across the country have been brought on different provisions of state and federal law.

The cases in Pennsylvania and Wisconsin dealt with claims that the laws were a violation of the state constitutions.

On Oct. 2, a commonwealth judge blocked Pennsylvania's strict voter ID law from going into effect. Judge Robert Simpson issued a preliminary injunction against the law, saying he was unconvinced that Pennsylvania could implement the law in the remaining five weeks before the general election in a way that would not disenfranchise voters.

The judge noted that the "offending activity" was not the actual request to produce photo ID, but the ability of the state to make sure that voters weren't being disenfranchised for this election.

But what chance does the law have of going into effect after the election?

David S. Cohen, a constitutional law expert at Drexel University, said the judge has already set a hearing schedule in 2013 for challengers who want him to issue a permanent injunction against the law.

"Simpson's ruling was limited to deciding that in the short time frame the law cannot be implemented," Cohen said. "The attorneys still have to put on a full case about why this law is a problem. Simpson has not seen that evidence nor has he ruled on it."

And will the judge uphold it?

"The lawyer in me says it is too early to tell because they still have a full case to lawyer," Cohen said. "The political observer in me thinks that Simpson has shown his hand and thinks that this law is fine."

State judges enjoined two challenges to Wisconsin's law, which will remain off the books at least through the next election.

However, Wisconsin Attorney General J.B. Hollen issued a statement saying, "I continue to believe that the voter ID law is constitutional and I will continue the battle to have the law upheld."

Texas and South Carolina involve different challenges altogether. Those states -- because of their history of voter discrimination -- must have federal officials in Washington approve any changes to voting laws under Section 5 of the Voting Rights Act. The burden is on the state to show that the new law won't have a negative effect on minorities.

The three-judge court hearing the Texas case said that law would impose burdens on the poor but left open the possibility that other, less-restrictive laws could be upheld in states covered by Section 5.

Texas Attorney General Greg Abbott expressed disappointment that the ruling would mean the law wouldn't be used for the next election, but he vowed to appeal to the Supreme Court. Abbott argued that his state and several others covered by Section 5 should no longer be forced to meet a higher burden on issues such as voter ID laws.

South Carolina's law was passed in May 2011 and signed by Gov. Nikki Haley. In a statement released after the Oct. 10 ruling, the Department of Justice stressed that the court had required broad modifications in the law in order to respond to government concerns that the law would exclude minority voters.

The author of the opinion, Judge Brett D. Kavanaugh, referenced a Supreme Court ruling in 2008 that upheld an Indiana voter ID law. Kavanaugh pointed out that the legal cases are different because Indiana is not a covered jurisdiction under Section 5. But he said the decision "remains instructive" because Indiana's law had stricter requirements.