Applewhite was the focal point of a coordinated attack by the ACLU, Lawyers Committee for Civil Rights Under the Law, and other civil rights organizations seeking to have the Pennsylvania Voter ID law declared violative of the state constitution. But the center of attention and the poster child for Voter ID was Viviette Applewhite, a 93-year old grandmother who had voted for John F. Kennedy, marched with Martin Luther King, and never had a birth certificate or a driver’s license—and never needed one, at least until now. Without either form of identification, Viviette Applewhite would not be allowed to vote in November 2012 under the new Voter ID law.
The plaintiffs argued that the Voter ID law violated Pa. Const. Art. I, § 5, which provided that “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage” and that up to 1 million registered voters in the state did not have the necessary ID to vote under the new voter ID law and would be disenfranchised if the law’s constitutionality was upheld. Supporters of the Voter ID law argued that the law was needed to ensure that only eligible voters vote. The parties stipulated that there had been “no investigations of prosecutions of in-person voter fraud and the parties do not have direct personal knowledge of such investigations or prosecutions in other states,” and the state agreed before the hearing that it would not argue that “in person voter fraud is likely to occur in November 2012.” 3
According to the plaintiffs’ expert, over 1 million registered voters lacked the kind of ID that would allow them to vote in November, 13% of registered voters in the state do not have proper voter ID, and voters living in cities, who are poorer or less educated, would be less likely to have proper voter ID.
One of the biggest obstacles for the plaintiffs in Applewhite was Crawford v. Marion County Election Board, 553 U.S. 181 (2008), in which a majority upheld the Indiana voter ID law in an opinion written by Justice Stevens, not exactly an ultraconservative. Justice Scalia’s concurring opinion also noted that the reasons underlying the law reflected “important regulatory interests” and that the overall burden on persons seeking to vote was “minimal and justified.” Crawford and cases that followed it declined to apply a strict scrutiny analysis to all laws that impose a burden on the right to vote. This rationale had a significant impact on Judge Simpson’s decision to apply a more flexible, deferential standard and deny injunctive relief in Applewhite, based on the relevant, neutral and nondiscriminatory justifications for Pennsylvania’s Voter ID law. Nor was evidence of partisan motivation for the legislation or the absence of proof of in-person voter fraud in Pennsylvania dispositive of the issue before the trial court. As Judge Simpson concluded, the burdens associated with the state Voter ID law “serve substantial interests to protect the integrity and reliability of the electoral process,” and the law’s requirements, “while enhancing the procedural burdens associated with the voting process, are not sufficiently unreasonable.” 4
Just as Crawford proved to be a major obstacle for the plaintiffs challenging Pennsylvania’s Voter ID law in Applewhite, it provided no support for the State of Texas in its effort to obtain Section 5 approval of the Texas Voter ID law. Two weeks after Applewhite was decided, a three-judge court of the U.S. District Court for the District of Columbia rejected the State of Texas’ effort to obtain judicial preclearance under Section 5 of the Voting Rights Act. The narrow issue before the court was whether Texas could prove that its Voter ID law lacked retrogressive effect even if a disproportionate number of minority voters in the state currently lacked a photo ID, an ultimate determination that depended on whether Texas could prove that these would-be voters could easily obtain thee qualifying Voter ID without cost or major inconvenience.
Declaring that the Texas Voter ID law was “the most stringent in the country” and imposed “strict, unforgiving burdens on the poor, and racial minorities” in a geographically large state where racial minorities “are disproportionately likely to live in poverty,”5 the three-judge court held that Texas had failed to carry its burden of proving that the law did not have a retrogressive effect. Applying the April 15, 2011 regulations governing administration of Section 5 of the Voting Rights Act, as amended by the Voting Rights Act Reauthorization and Amendments Act of 2006, the three-judge court concluded that Texas had failed to carry its burden of establishing that the Texas Voter ID law did not have the purpose and would not have the effect of denying or abridging the right to vote on account of race, color or membership in a language minority group. Thus, since Texas failed to carry its burden of showing that its Voter ID law lacked retrogressive effect, and since “everything Texas has submitted as affirmative evidence is unpersuasive, invalid, or both,” 6 its request for a declaratory judgment under Section 5 must be denied. 7
In a 56-page opinion, Circuit Judge Tatel distinguished Crawford v. Marion County Election Board, 553 U.S. 181 (2008), in several important respects.
First, in Crawford, the photographic identification cards issued by Indiana’s BMV were free, whereas in Texas the burdens associated with obtaining the purportedly “free” Texas Voter ID card would be heavier than under Indiana law, in that applicants for an Election Identification Certificate in Texas will have to present Department of Public Safety officials with a government-issued form of ID, the cheapest of which, a certified copy of a birth certificate, costs $22; moreover, in addition to this out-of-pocket cost, the Texas Voter ID law imposed a burden on EIC applicants associated with traveling to a Department of Public Safety Office, in a state where 81 counties have no DPS office and 34 additional counties have DPS offices open two days per week or less.8
Second, Crawford involved a facial challenge to the Indiana Voter ID law’s effects on all Indiana voters, whereas Texas was seeking a judicial determination that its Voter ID law passed muster under Section 5 of the Voting Rights Act.9 Texas was confronted with an onerous burden of proving a negative under Section 5 of the Voting Rights Act, namely, the absence of retrogressive effect, a showing that it could make if would-be minority voters would not be subjected to a disproportionately heavy burden under the Texas Voter ID law by having to incur out-of-pocket costs of at least $22 to purchase a copy of a birth certificate as a prerequisite for issuance of a Voter ID, and by having to incur travel costs incident to taking a day off work to travel to a distant DPS office in order to apply for a Voter ID.
Third, the Indiana Voter ID law at issue in Crawford was not as strict as the Texas Voter ID law.10 In addition to the potentially disproportionate cost burdens noted above, Texas’ Voter ID law prohibited the use of an ID that had expired more than 60 days before the date of presentation at the polls, while Indiana allowed expired photo IDs to be used as long as they had expired after the date of the most recent general election.
Fourth, Indiana with its minority population consisting primarily of African Americans was not deemed a relevant comparison to and was in fact significantly different from the relevant minority population in Texas, in that Indiana did not have an Hispanic population on the order of those in Texas.11
Fifth, the unique position of Texas’s Hispanic community, whose political, social, and economic legacy of past discrimination for Latinos may well hinder their ability to participate effectively in the political process, made it completely inappropriate, in the court’s judgment, to compare Hispanics in Texas with African Americans in Indiana.12
Sixth, while in Crawford, for most voters the inconvenience of making a trip to the Indiana Bureau of Motor Vehicles did not qualify as a substantial burden on the right to vote, this general principle as stated in a facial challenge had to yield when the closest office was 100 to 125 miles away, as the proof revealed to be the case in many Texas counties.13
Finally, the three-judge court provided what some may consider a veritable road map for revising the Texas Voter ID law in order to overcome the many deficiencies in that law that led to a negative Section 5 judicial determination. The Texas Legislature, according to the court, had ignored warnings that the Voter ID law as written would disenfranchise minorities and the poor, and had tabled or defeated amendments that would have (1) waived all fees for indigent persons who needed the underlying birth certificate or other documents to obtain an election identification certificate, (2) reimbursed impoverished Texans for EIC-related travel costs, (3) expanded the range of identifications acceptable under the law by allowing voters to present student or Medicare ID cards at the polls, (4) required Department of Public Safety offices to remain open in the evening or on weekends, and (5) allowed indigent persons to cast provisional ballots without photo ID.14
On September 5, 2012, the Attorney General of the United States precleared New Hampshire’s newly enacted legislation modifying the state’s voter identification requirements and the revised Challenged Voter Affidavit form. The benchmark procedure in New Hampshire was set forth in existing law and required an election-day voter to announce his or her name to the ballot clerk, who in turn verified the name on the registered voter checklist, read the address on the checklist to the voter for verification, and entered corrections to the address if appropriate. If the voter at that point was not challenged as provided by statute, the voter could then cast a regular ballot. The New Hampshire Legislature enacted Chapter 284 to amend this benchmark procedure to require in-person voters to present photographic identification at the polling place. If a voter is unable to present any form of allowable identification at the polling place, he or she would still be entitled to execute a “challenged voter affidavit,” which entitles the voter to cast a regular ballot.
Before September 1, 2013, the voter identification requirement may be satisfied by a New Hampshire driver’s license or a driver’s license from any other state, even if it is expired, a voter identification card issued under state law, a U.S. Armed Services identification card, a U.S. passport, even if expired, a valid student identification card, or any other valid photo identification issued by federal, state, county, or municipal government, and in addition, a voter may present any photographic identification determined to be legitimate by the supervisors of the checklist, the moderator or the town or city clerk; moreover, if the voter does not have photographic identification, the voter’s identity may also be verified by a moderator or supervisor of the checklist or the town or city clerk.
After September 1, 2013, the voter identification requirement will be satisfied by a driver’s license issued by any state or the federal government, a nondriver’s identification card issued by the motor vehicle authority of any state, a U.S. Armed Services identification card, or a U.S. passport; moreover, photographic identification presented after September 1, 2013, may not have an expiration date exceeding five years, and the name on the identification must substantially conform to the name in the registration record. Voters who elect to sign the challenged voter affidavit will have their picture taken at the polling place by an election official and will then be allowed to cast a regular ballot. A procedure is provided for voters who object to having their picture taken for religious reasons.
In its Section 5 determination dated September 4, 2012, the Attorney General stated that he did not interpose any objection to the above statutory changes enacted by New Hampshire, but expressly noted that under Section 5, the failure of the Attorney General to object does not bar subsequent litigation to enjoin enforcement of the changes, in accordance with the regulations governing the administration of Section 5.15
These early decisions by state and federal courts, as well as by the Attorney General under Section 5, do not establish a trend. Not yet. The Applewhite decision in Pennsylvania may reflect some traces of a growing public sentiment favoring adoption of Voter ID measures in states not covered by Section 5 of the Voting Rights Act, particularly if those legislative measures are amply supported by relevant evidence of the need to enact such measures to assure secure and fair elections and strengthen the American electoral process. Indeed, proponents of Voter ID laws have advanced credible, substantial arguments that such laws are essential and appropriate by “keeping it easy to vote, but making [it] hard to cheat.”16
State of Texas v. Holder is the first of several decisions anticipated to be handed down by the U.S. District Court of the District of Columbia in response to submissions of Voter ID laws enacted by states covered under Section 5 of the Voting Rights Act. While time will tell whether “The Map of Shame,”17 prepared by the Lawyers’ Committee for Civil Rights Under the Law (an organization of which Circuit Judge Tatel was once a member), will expand or be replaced by the Map of Electoral Reform, this much is clear: the Applewhite decision is certainly not the end of the road for opponents of the many Voter ID laws presently being challenged in South Carolina, Florida, and other states, but it does suggest that a more moderate judicial view of Voter ID laws may be adopted in a moderate state far from the Mason-Dixon line, a centrist state whose electoral votes will likely play a major role in the selection of our next president. Nor is State of Texas v. Holder the end of the road for the State of Texas, which has now been provided arguable guidance for revising its Voter ID law for another, and this time perhaps successful, attempt to obtain Section 5 preclearance, judicially or administratively.
While the plaintiffs have already filed a notice of appeal, the Applewhite decision leaves little room for claims that such legislation suppresses votes, at least in a noncovered jurisdiction that is not required to prove nonretrogressive effect as in State of Texas v. Holder. Moreover, Applewhite may well provide an early signal that such laws—when rationally drafted with flexibility and less restrictive alternatives as in the New Hampshire Voter ID law—may legitimately provide the cure for vote fraud in its many subtle and not-so-subtle forms.
1. Election Fraud is a Big Fraud, Pine Bluff, Ark., Commercial, June 20, 2012, http://pbcommercial.com/sections/opinion/opinion/editorials/election-fraud-big-fraud.html.
2. Applewhite v. Commonwealth of Pennsylvania, No. 330 M.D. 2012 (Pa. Commnw. Ct. Aug. 15, 2012) (Determination on Application for Preliminary Injunction) (Simpson, J.), available at www.pacourts.us/NR/rdonlyres/676A25C6-3760-4376-B7EF-71EA4A6623F9/0/CMW330MD2012ApplewhiteDetermPrelimInj_081512.pdf.
3. Lawyers’ Committee for Civil Rights Under Law, Ahead of Voter ID Trial, Pennsylvania Admits There’s No In-Person Voter Fraud, www.866ourvote.org/newsroom/news/ahead-of-voter-id-trial-pennsylvania-admits-theres-no-in-person-voter-fraud.
4. Applewhite, slip op. at 62.
5. Id. at 55.
6. Id. at 54.
7. See http://moritzlaw.osu.edu/electionlaw/litigation/documents/OpinionDenyingStatesRequestforaDeclaratoryJudgment.pdf.
8. Holder, slip op. at 22, 26-27.
10. Id. at 26.
11. Id. at 28.
12. Id. at 28.
13. Id. at 47.
14. Holder, slip op. at 56.
15. See http://moritzlaw.osu.edu/electionlaw/litigation/documents/NoticeofFilingSection5Determination.pdf.
16. Kris Kobach, Why Opponents Are Destined to Lose the Debate on Photo ID and Proof of Citizenship Laws: Simply Put—People Want Secure and Fair Elections, 62 Syracuse L. Rev. 1, 14 (2012).
17. Accessible in interactive format at www.lawyerscommittee.org/page?id=0042.