Court Rulings on Voter Restrictions Create Limbo as Midterms Near
June 18, 2014, 3:00am


June 16, 2014

MIAMI — With the midterm elections only months away, efforts to carry out some of the country’s strictest photo ID requirements and shorten early voting in several politically pivotal states have been thrown into limbo by a series of court decisions concluding that the measures infringe on the right to vote.

The most recent ruling came last Wednesday, when a federal judge ordered Ohio’s elections chief to restore early voting hours on the three days before Election Day. It is the second lower court decision in Ohio since 2012 that bolsters voter rights.

The court decisions have gone both ways, but several have provided a new round of judicial rebukes to the wave of voting restrictions, nearly all of them introduced since 2011 in states with Republican majorities. The decisions have ensured that challenges will remain a significant part of the voting landscape, perhaps for years.

And, with challenges still going through the courts, voting rules and requirements remain uncertain in several states before the midterm elections.

Opponents of these voting laws have been heartened by the successes of the past six months in places like Arkansas, Pennsylvania and Wisconsin. But with cases still awaiting legal action in seven states, including appellate rulings, it remains unclear what kind of impact the rulings will have on the midterms.

A few state and federal appeals courts have indicated they may rule before Election Day, potentially affecting voting in Arizona, Arkansas and Kansas, among other states.

“There have been a string of victories, but as to the ultimate balance, it’s too early to tell,” said Richard L. Hasen, an election law expert at the University of California, Irvine. “But at the moment the courts have been leaning more toward striking down some of these laws.”

Still, many states are already rolling out stricter voting requirements, and not all the laws have been challenged or overturned, in part because the laws vary widely in terms of the restrictions they place. The effects remain unclear, because much of the voting this year has come during primaries, for which fewer voters turn out. Those who do vote tend to be the most committed and best prepared.

In Mississippi, which is dominated by Republican voters, the election chief said Monday that the state’s new voter ID law posed few problems during the recent primaries.

“Mississippians came together and showed that we, as a state, could implement a voting requirement without federal intervention or oversight,” Secretary of State Delbert Hosemann said in a news release.

In all, voters in 15 states are facing an array of stricter voting rules in a major election for the first time this year, according to a new report, “The State of Voting in 2014,” to be released Tuesday by the Brennan Center for Justice at New York University. The laws in six of those states are being challenged in court.

Since 2010, 22 states, nearly all of them in the South and the Midwest, have rolled out new restrictions.

Legal experts say challenges to the laws are having some success because states have provided courts with little proof of in-person voter fraud, which is the rationale for many of the laws. At the same time, it has become clearer that the laws disproportionately affect minorities and the poor, allowing Democrats to argue that they were passed to hinder Democratic voters.

Of the 11 states with the highest black turnout rate in 2008, seven have new restrictions in place, and of the dozen states with the largest growth in Hispanic population from 2000 to 2010, nine passed laws making it harder to vote, according to the Brennan Center report.

“I think there has been an education process both for the public and in the courts,” said Dale Ho, director of the A.C.L.U.’s Voting Rights Project, which is involved in lawsuits in 11 states.

In Pennsylvania, a state judge in January blocked the state from asking voters to show a state-issued photo ID in the coming elections. The state’s photo ID law was passed in 2012 and is one of the strictest in the country. The judge said the requirement “unreasonably burdens the right to vote” for hundreds of thousands of people, many of them poor, disabled and older, and was not needed to prevent in-person voter fraud since none had been found in the state.

Pennsylvania’s Republican governor, Tom Corbett, who is locked in a tough re-election bid, decided in May not to appeal the ruling.

And in a significant decision in Wisconsin, a federal judge was the first in the country to rule that the state’s photo ID law was unconstitutional and violated Section 2 of the Voting Rights Act, which bars discrimination against minorities.

Last year, the Supreme Court weakened the Voting Rights Act, overturning a key section that helped protect voters in certain states, many of them in the South, from discrimination. The Department of Justice has brought lawsuits in Texas and North Carolina under the Section 2 provision, a new strategy more typically used to fight discrimination in redistricting cases.

The judge in Wisconsin found that the state presented scant evidence of voter fraud to justify the strict photo ID law, which had been blocked by a state court. Instead, the judge ruled, the law would disproportionately affect blacks, Hispanics and the poor since they are the least likely to have the required forms of government-issued identification, like a driver’s license or passport. The judge found that 300,000 registered voters in Wisconsin, roughly 9 percent, lacked the ID required to cast a ballot.

“The Wisconsin case is the most important of the voter ID cases that we’ve had,” said Nathaniel Persily, a Stanford University law professor and political scientist. “It’s a sophisticated analysis, it is extensive and it opens up a new area of inquiry on the Voting Rights Act.”

A state court judge in Arkansas also rejected as unconstitutional the photo ID requirements in May. But, in part because a primary was approaching, the judge allowed the state to move ahead with the requirement for now.

The decisions in Wisconsin and Arkansas are being appealed.

Other decisions have upheld stricter voting laws. In Tennessee, the State Supreme Court approved its photo ID law in October. And two of the most significant cases, in Texas and North Carolina, have yet to go to trial. The Department of Justice’s suit against North Carolina is scheduled for trial next year. The case in Texas, which has one of the strictest laws in effect, is scheduled for September, with a possible ruling before the election.

Two states, Kansas and Arizona (which had previously lost its photo ID push in the Supreme Court), also had their laws upheld in March. A federal judge ruled, in effect, that voters in both states can be required to show proof of citizenship when they register to vote, be it using a federal or a state form. That ruling was appealed, and a decision is expected before their elections.

The impact on the midterm elections is far from clear. Some states with the strictest restrictions, like Alabama, are dominated by one party, so the outcome in major partisan races is unlikely to be affected. In states with more flexible restrictions, like Virginia, where employee ID cards can be used to vote and the law is not being challenged, few voters are likely to be shut out.

“There are ID laws, and then there are ID laws,” Professor Persily said.

And, with a legal challenge still pending, Ohio is moving forward with its plans to cut Golden Week — a period in which voters were allowed to both register and vote early on the same day. North Carolina is also shortening early voting this year and ending same-day voter registration.

Election law experts said that doing away with same-day registration was likely to have the biggest impact on voter turnout.

Studies on the impact of some of these laws are contradictory. In Indiana and Georgia, the two states that have had voting restrictions the longest, some studies have shown that only a small fraction of voters were unable to cast their ballots. More difficult, though, is ascertaining the number of people who were dissuaded from going to the polls because of the requirements.