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Voter ID Laws and the 2012 Election

By Brian L. Josias – October 24, 2012

According to George Mason University’s U.S. Elections Project, a mere 61.6 percent of the voting-eligible population voted in the in the 2008 presidential election. As is typical, the turnout numbers for the 2010 congressional election, in which the Republican party scored major gains in both the House of Representatives and the Senate, were much lower: just 41 percent of the voting-eligible population. Despite these fairly low turnout numbers, within the past two years, Alabama, Kansas, Mississippi, New Hampshire, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and Wisconsin have passed new laws governing voting procedures that could disenfranchise thousands of otherwise eligible citizens. Most of the laws passed by these states require that prospective voters provide government-issued photo identification prior to casting a ballot. Other states, such as Florida, enacted new restrictions on the ability of third-party voter-registration groups, such as Rock the Vote, to register new voters. And some states, such as Ohio, have taken steps to limit or eliminate early voting.

Perhaps the most controversial and widespread controversy concerns voter ID laws passed in many states. Proponents of the new voter ID laws claim that the identification requirements are necessary to contain and limit voter fraud. Opponents assert that voter fraud is virtually a nonexistent problem and note that there have been only 10 confirmed cases, nationwide, of voter fraud or impersonation since 2000. Critics of voter ID laws note that the legislatures of all but one of the states that have enacted these new laws are controlled by the Republican party and argue that, in reality, the new laws are designed to reduce turnout among minority groups and the underprivileged, groups that historically favor the Democratic party. And while advocates of the new laws claim that almost all eligible voters already possess the identification required by the new laws, a Brennan Center for Justice study has shown that 11 percent of Americans do not possess the necessary ID. With the presidential election just around the corner, court battles over the legitimacy of the voter ID laws have intensified, and the media have increasingly turned attention to the problem.

One of the sharpest battles over the new voter ID laws has unfolded in the battleground state of Pennsylvania. In March 2012, Pennsylvania Governor Tom Corbett signed HB 943 into law, requiring eligible voters to present photo identification (or verification of their identification within six days of voting) to submit a ballot. Specifically, the new law provides that, to vote, a registered voter must present voting officials with one of eight forms of government-issued photo identification, and the identification must contain an expiration date. Although some of the forms of acceptable identification are available to the public without charge, a recent article by University of Pittsburgh School of Law’s Lawrence Frolik suggests that there are few locations where citizens can obtain the free forms of identification and many requirements to obtain one.

In June, State Representative Mike Turzai bragged to the Republic State Committee that the new voter ID law would “allow Governor Romney to win the state of Pennsylvania.” However, a month prior to Representative Turzai’s boast, the American Civil Liberties Union (ACLU) and others filed suit seeking an injunction to block the enforcement of the law. The ACLU’s lawsuit claimed that the new law violated the Pennsylvania Constitution by burdening the fundamental right to vote, violating equal protection, and imposing additional qualifications on the right to vote.

On August 15, 2012, the trial court refused to grant the plaintiffs’ request for injunctive relief and held that the law did not violate the Pennsylvania Constitution and did not unconstitutionally interfere with the right to vote. The judge presiding held that the new law was not subject to “strict scrutiny” and cited to the 2008 U.S. Supreme Court case, Crawford v. Marion County Election Board,for precedential support. Somewhat tellingly, the court acknowledged that the new ID requirements place “a somewhat heavier burden on certain individuals” including “the elderly and infirm persons.” However, the court held that these burdens were not substantial enough to justify striking down the law. The plaintiffs have appealed the decision to the Pennsylvania Supreme Court, and the Justice Department is conducting an investigation of the legality of the voter ID law under section 2 of the Voting Rights Act. However, with the 2012 election rapidly approaching, time for a meaningful decision is quickly running out.

Court battles in other states have led to different results, often due to Department of Justice intervention in one of the nine states where voting regulations are subject to additional scrutiny under the Voting Rights Act. For example, after the Department of Justice originally ruled in March 2012 that a new Texas voter ID law violated the Voting Rights Act, a panel of three federal judges affirmed the Department of Justice’s original decision and struck down the law. See Teaxs v. Holder, D.D.C, Aug. 30, 2012. Likewise, on August 28, 2012, U.S. District Judge Robert Hinkle entered a permanent injunction striking down Florida’s rule that regulated organizations that conduct voter-registration drives. Prior to Judge Hinkle entering a temporary injunction barring enforcement of the law in May 2012, registration of new Democratic voters had proceeded at a substantially slower pace than in prior years. Although the Florida Times-Union has reported that registration numbers have increased substantially since the law was struck down, the deadline for voter registration for the presidential election in Florida was October 6, 2012.

Given that polls continue to show a very tight race between President Obama and Governor Romney and with analysts predicting that the outcome could easily ride on the results from a small handful of swing states, there is a strong likelihood that new voter registration and ID laws will have a dramatic impact on the 2012 presidential election. It is perhaps equally likely that the ultimate result of the election could be decided not in the voting booth, but in the courtroom.

Keywords: litigation, minority trial lawyer, voter ID, disenfranchisement, Voting Rights Act, Obama, Romney

Brian L. Josias is an associate with Schiff Hardin LLP in Chicago, Illinois, and is the editor of the Minority Trial Lawyer e-newsletter.

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