Analysis Law and Policy

Expect To See More Rulings Like Voter ID In Pennsylvania and Arizona’s 20-Week Ban

Jessica Mason Pieklo

Thanks to a steady move rightward in our jurisprudence and a cynical approach to lawmaking by Republicans the deck is stacked against progressives.

Voting rights activists thought they had a strong challenge to Pennsylvania’s restrictive voter ID law. After all, Republican officials admitted the law was designed to disenfranchise Democratic voters and that actual voter fraud was non-existent. But last  Wednesday Commonwealth Court Judge Robert Simpson upheld the law. The 70-page opinion is a detailed and well-reasoned application of the law. And that’s the problem.

As we’ve seen in the context of reproductive rights, the Supreme Court under the helm of Chief Justice John Roberts has made it exceedingly difficult to challenge the constitutionality of laws like the Pennsylvania’s voter ID measure before they take effect. This has also emboldened Republican-led state legislatures to pass more restrictiive civil rights measures, like voting and abortion restrictions, with an understanding those laws will pass constitutional scrutiny. The district court decision upholding Arizona’s 20-week gestational ban and this state court decision upholding discriminatory voter ID represent just the beginning. The legal landscape has tilted far to the right and is not likely to correct itself anytime soon.

The problem is two-fold. First, under Gonzales v. Carhart courts are to give wide discretion to the findings of fact used to support a particular piece of legislation. Standing alone, that premise is not all that controversial. During the legislative process lawmakers hold committee hearings, interested parties submit testimony and, presumably, the legislation that results is drafted to address a specific policy goal.

But the holding of Gonzales presumes that legislators draft legislation in good faith, and as we’ve seen time and time again in the states this is not a presumption we can afford to make. Whether its supporting so-called “fetal pain” laws or voter ID, Republicans are not legislating in good faith. They are gaming the process so their findings reflect ideological-driven conclusions supported by ideologically manufactured “facts” (like the ability of a fetus to feel pain at 20 weeks or the existence of voter fraud) to create a record insulated from judicial review. And then they pass the most outrageous legislation they can get away with.

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At that moment advocates face a choice: try and challenge that law immediately before it goes into effect or wait until an individual plaintiff or a group of plaintiffs is actually injured by the law and challenge it then. In the case of abortion rights and voting restrictions the obvious preference is to challenge the law before it goes into effect rather than wait for it to swing an election or take a woman’s life. But to successfully challenge a law before it goes into effect in what is known as a facial challenge plaintiffs face the hurdle the Roberts court threw at them in Ayotte v. Planned Parenthood. They must prove that under no circumstance would an application of the challenged law be constitutional–that is, if there’s some way the law can be saved the court is obliged to save it.

It’s a nearly impossible hurdle to clear as the Pennsylvania voter ID and Arizona 20-week gestational ban cases make clear. In Applewhite v. Pennsylvania, the case that upheld the voter ID requirement, Judge Simpson’s opinion returns to these two principles to justify keeping the law in place. It doesn’t matter that the state admitted there was no evidence of voter fraud to justify the law; when the law was in the committee stage supporters offered expert testimony that voter fraud was a legitimate concern. The court, Judge Simpson held, was bound to defer to those findings. And even though there was unsettling testimony that the law was designed to hand Pennsylvania’s Electoral College votes to Republicans, he also held that because not all supporters of the bill shared that animus, the bill should stand.

That leaves only individual challenges to the application of the law–a women denied an abortion or a voter disenfranchised in an election–to try and undo its damage. The policy implications of this legal reality are enormous. Bringing individual challenges to a law like Pennsylvania’s voter ID are expensive and burdensome. Lawsuits are inconvenient and time-consuming. Americans already vote in shamefully low numbers. How many would realistically challenge their disenfranchisement at such a level to create a change in the law? Meanwhile, the law stands and has its intended effect. Fewer eligible voters participate in the electoral process and those that do tilt heavily conservative.

The same is only more chilling in the context of abortion rights. In those cases some of the individual challenges to a law like Arizona’s would have to come from women denied abortions, a point far to late for the individual women affected by the law.

Conservatives understand the wide berth granted to them by the Roberts court and they are taking it. A day after the Pennsylvania court upheld the state’s voter ID bill Gov. Tom Corbett’s (R) administration announced it was scrapping plans to allow voters to apply online for absentee ballots for the November election and to register online to vote–two initiatives administration officials testified during the challenge to the law would be in place to alleviate concerns of widespread voter disenfranchisement. And who can forget Republicans admitting that the Arizona 20 week ban was drafted specifically to trigger Supreme Court review of Roe v. Wade? That is not evidence of legislating in good faith, and yet there is little we can seem to do about it through the courts.

News Law and Policy

Voting Rights Advocates Notch Another Win, This Time in Texas

Imani Gandy

This makes two voting rights victories in as many days for voting rights advocates. A federal judge on Tuesday in Wisconsin ruled that voters who unable to comply with the state's photo ID requirement would be allowed to vote in the November's election.

The ultra-conservative Fifth Circuit Court of Appeals, in a surprising victory for voting rights advocates, ruled that Texas’s voter ID law disproportionately burdened Black and Hispanic voters in violation of the federal Voting Rights Act (VRA) of 1965.

The decision means Texas can’t enforce the law in November’s presidential election.

Wednesday’s ruling was the latest in a convoluted legal challenge to the Texas law, which conservative lawmakers passed in 2011 and is among the most stringent voter ID laws in the nation. Voting rights advocates challenged the measure almost immediately, and the law remained blocked until the Roberts Court’s 2013 ruling in Shelby County v. Holder revived it.

The Court in Shelby struck down a key provision of the VRA, Section 4, which is the coverage formula used to determine which states must get pre-clearance from the Department of Justice or the District Court for the District of Columbia under Section 5 of the VRA before making any changes to their election laws. States with a history of racially discriminatory voting requirements like Texas were covered by the Section 4 pre-clearance requirement before the Shelby decision.

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Within hours of the Court’s ruling in Shelby, Texas officials announced that they would begin enforcing SB 14, the restrictive voter ID law.

In response, a group of Texas voters sued Texas under a different portion of the civil rights law, arguing SB 14 violates Section 2 of the VRA, which forbids voting procedures that discriminate on the basis of race. Unlike Section 5 of the VRA, which requires state officials prove a voting rights law has no discriminatory intent or effect, under Section 2, the burden of proving racial discriminatory intent or effect is placed on voters to prove the restriction discriminated against their voting rights.

Both the district court and a three-judge panel of the Fifth Circuit agreed and found that SB 14 had a discriminatory affect in violation of Section 2 of the VRA. Texas then requested that the Fifth Circuit rehear the case en banc, with the full slate of judges on the Fifth Circuit.

The full Fifth Circuit issued that decision Wednesday, handing Texas conservatives a decisive loss.

“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 for the majority.

Texas claimed that it had modeled its law after Indiana’s law, which was upheld in another challenge, Crawford v. Marion County Election Board. The Fifth Circuit, however, rejected Texas’s argument, finding obvious differences between the two laws that affected its decision that Texas’s law had a discriminatory impact on people of color.

“While cloaking themselves in the mantle of following Indiana’s voter ID law, which had been upheld against a (different) challenge in Crawford, the proponents of SB 14 took out all the ameliorative provisions of the Indiana law,” Haynes wrote.

One such ameliorative provision was an indigency exception, which the GOP-dominated Texas house stripped from the law. That exception would have freed indigent people from any obligation of paying fees associated with obtaining a qualified photo ID.

Although the Fifth Circuit found that the law violates the Voting Rights Act, the Fifth Circuit did not fashion a remedy for this violation and instead, remanded the case back to the lower court, instructing it that the “remedy must be tailored to rectify only the discriminatory effect on those voters who do not have SB 14 ID or are unable to reasonably obtain such identification.”

In addition, the appeals court reversed the lower court ruling that Texas had intended to discriminate against racial minorities. The court found evidence to support such a claim, but ultimately found that the district court’s overall findings were insufficient, and sent the case back to the district court to reconsider the evidence.

Nevertheless, voting rights advocates hailed the decision as a victory.

“We have repeatedly proven—using hard facts—that the Texas voter ID law discriminates against minority voters,” Gerry Hebert, executive director of the Campaign Legal Center and an attorney for the plaintiffs, said in a statement, according to the Texas Tribune. “The 5th Circuit’s full panel of judges now agrees, joining every other federal court that has reviewed this law. We are extremely pleased with this outcome.”

Texas Republicans, including former governor and presidential candidate Rick Perry, rushed the law through the GOP-majority legislature in 2011, arguing that it was necessary to prevent voter fraud, even though voter fraud has been found to be almost nonexistent in other Republican-led investigations.

Politifact found in March of this year that since 2002, there had been 85 election fraud prosecutions, and not all of them resulted in convictions. To put that in perspective, from 2000 to 2014, some 72 million ballots were cast in Texas, not counting municipal and local elections.

Justin Levitt, a professor at Loyola Law School in Los Angeles, argued in 2015 that most of the Texas prosecutions would not have been prevented by the voter ID law, since the prosecutions were not for in-person voter fraud, but rather for marking someone else’s absentee ballots without their consent, fake registrations, or voting while ineligible.

“There are vanishingly few instances of voter fraud—incidents flat-out, not just prosecutions—that could be stopped by applying a rule requiring ID at the polls,” Levitt said, according to Politifact.

Opponents of SB 14 cited the near absence of proven in-person voter fraud, arguing that the law was intended to dilute the voting strength of the state’s increasing population of people of color, many of whom do not have photo identification and who would find it difficult to obtain it, as the opinion noted.

Laws requiring photo identification disparately impact people of color, students, and low-income voters, all groups who tend to vote for Democrats rather than Republicans.

Nevertheless, Texas conservatives continue to insist that the law was appropriately tailored to address voter fraud. “Voter fraud is real, and it undermines the integrity of the process,” said Gov. Greg Abbott (R) in a statement on Wednesday, according to the Texas Tribune.

Texas may appeal to the Supreme Court and ask the high court to intervene, although given that the Roberts Court remains short one judge, a 4-4 split is possible, which would leave in place the Fifth Circuit’s ruling.

This makes two voting rights victories in as many days for voting rights advocates. A federal judge on Tuesday in Wisconsin ruled that voters who unable to comply with the state’s photo ID requirement would nevertheless be allowed to vote in the upcoming election in November.

News Law and Policy

Wisconsin Can’t Enforce GOP’s Voter ID Law in November

Jessica Mason Pieklo

Republican lawmakers in other states, like Ohio, have turned up almost nothing during lengthy investigations into claims of voter fraud.

A federal judge in Wisconsin on Tuesday ruled that voters unable to comply with the state’s photo ID requirement be allowed to vote in November, striking a blow to conservative efforts to drive down Democratic voter turnout in the state.

Tuesday’s decision, issued by Judge Lynn Adelman, did not strike the law, but instead carved out an exception, ruling that voters who are unable to obtain an ID be permitted to sign an affidavit testifying to that inability and receive a ballot to vote. “Any voter who completes and submits an affidavit shall receive a regular ballot, even if that voter does not show acceptable photo identification,” according to Adelman’s decision. “No person may challenge the sufficiency of the reason given by the voter for failing to obtain ID.”

Conservatives in Wisconsin, including former Republican Party presidential candidate Gov. Scott Walker, proposed the measure, arguing it was necessary to prevent voter fraud.

Republican lawmakers in other states, like Ohio, have turned up almost nothing during lengthy investigations into claims of voter fraud.

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“Although most voters in Wisconsin either possess qualifying ID or can easily obtain one, a safety net is needed for those voters who can’t obtain qualifying ID with reasonable effort,” Adelman wrote. “The … affidavit option is a sensible approach that will both prevent the disenfranchisement of some voters during the pendency of this litigation and preserve Wisconsin’s interests in protecting the integrity of its elections.”

Adelman declined to apply the photo ID exception to the state’s August primary, ruling state officials would not have enough time to prepare for it.

The fight over Wisconsin’s voter ID law goes back to 2011, when attorneys from the American Civil Liberties Union and National Law Center on Homelessness and Poverty sued, arguing the law violated both the U.S. Constitution and Section 2 of the Voting Rights Act.

Adelman initially blocked the law, but the Seventh Circuit Court of Appeals reversed that decision and sent the case back to Adelman for another look. That left the requirement in place for Wisconsin’s presidential primary in April.

Tuesday’s ruling means those who were unable to comply with the photo ID requirement can still cast a ballot in the November 8 presidential election.