Sometime between 2010 and 2011, voting, as we knew it, changed. Prior to that, for most Americans, voting consisted of a few basic steps: register to vote, show up at an assigned polling place on Election Day, state your name, and cast your vote. With a few nuanced differences, such as casting an absentee ballot or participating in early voting, this was the standard voting protocol for the average American. Before 2010, Americans were not, as a rule, required to show any form of identification prior to casting a ballot. However, between 2010 and 2011, that all began to change.
In 2008, the Supreme Court ruled, in Crawford v. Marion County, that to prevent voter fraud the State of Indiana could require a potential voter to identify himself or herself by presenting a government-issued photo ID before he or she was allowed to cast a ballot. The court “rejected the idea that a burden was placed on voters who needed to gather documents to get a free photo ID.”
The Crawford decision opened the floodgates to what would become a wave of efforts by more than 30 states to require potential voters to present some form of photo identification to cast a ballot. This was a momentous change.
Proponents of the new voter identification requirements argued that they were necessary to prevent voter fraud. Opponents argued that such requirements were unnecessary and had the effect—intended or not—of making it more difficult for African-Americans and other groups to vote.
The United States has a long history of expanding access to the ballot, but the advent of laws requiring photo identification at the polls goes against that history. Despite what proponents of these new laws maintain—that they prevent voter fraud and strengthen the integrity of the voting process—the experiences of voters show that these laws have done little more than suppress the vote.
I. How Did It All Begin?
States have attempted to require potential voters to show some form of identification before casting a ballot since at least 1950, when South Carolina became the first state to require potential voters to show some kind of identifying document at the polls. South Carolina did not require voters to have a photo ID, but a potential voter was required to show a document bearing his or her name.
It would be another 20 years before other states would join South Carolina in requiring some form of identification at the polls: in 1970, Hawaii; . . . followed by Texas in 1971 and Alaska in 1980. Unlike many of the newer identification provisions of the 2000’s, these earlier state laws allowed, in certain circumstances, voters to cast a regular ballot, rather than a provisional one, even when they did not have the required form of identification.
Voter identification requirements began to gain momentum after the unprecedented chaos of the 2000 presidential election between George W. Bush and Al Gore, . . . which . . . badly shook the nation’s confidence in the integrity of its federal election system.
. . . In 2005, the bipartisan Commission on Federal Election Reform (also known as the Carter-Baker Commission) recommended the imposition of a voter identification requirement at the polls, along with other changes, to address waning public confidence. The Commission found that many of the problems that existed in 2000 remained and additional changes, such as voter identification, were warranted. The Commission recommended that each state provide registered voters with a free identification card.
[In 2008] [a]fter the Crawford decision, Indiana implemented its strict voter ID scheme. Georgia soon followed suit. Both states required photo identification at the polling place and without it, voters were only allowed to cast a provisional ballot, which would only then be counted if the voter went to an elections office within a designated timeframe and showed the required identification.
. . . In 2011, the Brennan Center for Justice undertook a comprehensive examination of the national landscape to gauge the impact of these new requirements. The report analyzed 19 laws and 2 executive orders, issued in 14 states, to measure their impact on voters. The report focused on an array of voting law changes that states had implemented or were attempting to implement, ranging from the shortening or elimination of early-voting days to changes in registration requirements. The report found that many states were requiring not just identification, but photo identification at the polls. The report estimated that 5 million voters could be affected by all of the voting changes that states were attempting to implement before the 2012 election.
At least thirty-four states introduced legislation that would require voters to show photo identification in order to vote. Photo ID bills were signed into law in seven states: Alabama, Kansas, Rhode Island, South Carolina, Tennessee, Texas, and Wisconsin (though not all were slated to go into effect prior to the 2012 national election). . . . The number of states with laws requiring voters to show government-issued photo identification has quadrupled in 2011. To put this into context, 11 percent of American citizens do not possess a government issued photo ID; that is over 21 million citizens.
From 2011 through 2013, the pace of states adopting or proposing to adopt restrictive photo ID requirements quickened. States that never had ID requirements on the books continued to adopt them, and states that had less-restrictive requirements adopted stricter ones.
The impact of voter ID laws falls most heavily on young, minority, and low-income voters, as well as on voters with disabilities. Voter identification laws that disproportionately affect these groups are extremely problematic.
II. The Real Effects of Voter ID Requirements
Proponents of voter identification laws argue that these laws are intended to ensure that a registered voter is who he or she says he or she is and not an impersonator, and thus are meant to eliminate in-person voter fraud.
There are several problems with that argument. First, the fact that it is a felony for any individual to commit in-person voter impersonation, coupled with the fact that there is little, if anything, to be gained from one individual impersonating another person simply to cast one ballot, since one vote rarely swings an election from one candidate to another, means that such fraud should be highly unlikely.
In fact, such fraud is quite rare. A 2007 New York Times analysis identified just 120 cases filed by the Justice Department over five years—an average of only 24 cases a year. The Times’ analysis found that many of these cases stemmed from purely administrative errors, such as mistakenly filed registration forms or misunderstandings over voter eligibility, and those 120 cases only resulted in 86 convictions. According to Richard Hasen, an election law specialist, when evidence of election fraud does exist, it is usually with respect to absentee ballots or election officials taking steps to change election results—the very types of fraud that photo identification requirements cannot prevent.
Second, the fact that proponents have not focused their efforts on the most vulnerable parts of the election system, such as absentee voting, but have myopically focused their attention on in-person voter fraud, calls into question whether proponents are actually interested in protecting the integrity of the vote, or if voter identification requirements serve another purpose.
There are also issues with the way that voter identification laws have been implemented. Such laws typically delineate the types and forms of identification that are “acceptable,” and the acceptable forms of identification tend to be the types that are more likely to be held by middle-class whites and less apt to be held by minorities, the elderly, and the young, groups that tend to favor Democratic candidates.
Obtaining acceptable identification for any person can be costly and burdensome, but this is especially true for minorities, the elderly, and young people. Even in states where acceptable forms of voter identification are purportedly free, the underlying documents required to obtain the free identification can be cost-prohibitive for individuals in these groups, and it is often difficult for members of these groups to travel to locations where free forms of identification are even available.
How these voter identification laws will affect future voter participation and the outcome of future elections is of course, at this point, mostly conjecture. The 2016 elections will be the first time that many of the strict photo identification requirements will go into effect.
Since the 2010 election, 21 states have enacted laws that make it harder to vote—ranging from photo ID requirements, to early voting cutbacks, to registration restrictions—and 16 states: Alabama, Georgia, Indiana, Kansas, Mississippi, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and Wisconsin, will have such laws in effect for the first time in a presidential election in 2016.
According to the Brennan Center for Justice, voter identification requirements remain at the forefront of the “Voting Wars” as the country moves into the 2016 election season.
Nearly half of the voting bills introduced during the 2015 state legislative session that restrict access are aimed at establishing voter ID requirements or tightening pre-existing ones. Voter ID remains largely a partisan issue. Of the 52 restrictive ID bills introduced so far, most have Republican-only sponsorship. Only one state, North Dakota, passed a voter ID bill this legislative session—all others failed. Nevada, a Republican-led state without an existing strict photo ID law, had a rancorous fight. Arkansas and Missouri, where state courts struck down ID laws, had renewed efforts this session to put ID requirements before the voters as ballot questions. Voter ID bills also failed in Maine, Nebraska, and New Mexico.
What happens to voters and their participation in the electoral process when they simply cannot meet the new requirements? Any voter is entitled to cast a provisional ballot, but to ensure that his or her provisional ballot is actually counted, the voter must produce the required identification within a specified timeframe and affirm in person or writing that he or she is the same individual who filled out a provisional ballot on Election Day. Often, this merely prolongs the potential voter’s disfranchisement when he or she does not produce, within the mandatory timeframe, what he or she simply cannot produce.
III. Challenges to Voter ID Laws
An objective analysis of these photo identification laws leads inexorably to the conclusion that the purpose and effect of these laws is to suppress the vote of certain groups of people. These laws were enacted primarily in states that were under Republican control (i.e., with a Republican legislature and/or a Republican governor) after the 2010 midterms, after which the enactment of such laws became a “major legislative priority.”
It is also difficult to separate the ways in which these laws are being applied, and the groups that they most affect, from the history of voter suppression in the United States. Former Attorney General Eric Holder and others have compared voter identification laws to a poll tax: Jim Crow-era voting fees imposed by Southern states that were intended to, and did, discourage Blacks, and some poor Whites, from voting.
Some legal scholars further argue that the costly steps required to obtain the documents needed to get acceptable identification has created a new “financial barrier” to the ballot box. Financial burdens impact Americans across racial and ethnic lines, but African-Americans and other minority groups are disproportionately impacted by such burdens because of their comparative lack of financial resources, which makes it even more difficult to dismiss the idea that voter identification requirements are designed to suppress the vote of African-Americans and certain other minority groups.
More profound than the analyses of scholars and others is the evidence that has been amassed and the findings that have been made by courts when these laws have been challenged. Several states saw challenges to these laws after the 2012 election, based on claims that the laws had a disparate impact on certain classes of voters––mainly African-Americans, the poor, the elderly and students. Evidence elicited in these cases demonstrated that members of these groups: (1) were more likely not to possess the required form of identification and (2) were more likely to find the steps needed to obtain the required form of identification to be onerous and cost-prohibitive.
In cases brought in Texas and North Carolina, courts held that photo identification laws discriminated against African-Americans and other minority groups. One cannot overstate the importance of these holdings and the findings of fact that led the courts to rule as they did.
A. The Texas Litigation
On September 17, 2013, the Brennan Center, the Lawyers’ Committee for Civil Rights Under Law, and co-counsel filed suit in federal court challenging [Texas Voter ID provision] S.B. 14 on behalf of the Texas State Conference of the NAACP and the Mexican American Legislative Caucus (MALC) of the Texas House of Representatives. The lawsuit was brought under section 2 of the Voting Rights Act and the U.S. Constitution, and sought “bail-in” so that Texas would have to obtain preclearance for future changes to its voting practices despite the Shelby ruling.
In October 2014, after an eight-day trial, U.S. District Judge Nelva Gonzales Ramos found that Texas’s strict photo ID law imposed an unconstitutional burden on the right to vote, was passed by the Texas legislature with the intent to discriminate, and constituted an unconstitutional poll tax, in violation of the Voting Rights Act. This ruling was groundbreaking because it marked the first time that a court of law made a direct link between the new voter identification laws and unlawful discrimination.
The court’s findings included:
- Texas has a “long history of discriminatory voting practices . . . [and that in] every redistricting cycle since 1970, Texas has been found to have violated the VRA [Voting Rights Act] with racially gerrymandered districts.”
- The strange procedural history of the law provided evidence of its discriminatory purpose. Every year that the Texas legislature considered photo ID legislation, “the bill sponsors made each bill increasingly harsh.” The court credited expert testimony that African-American registered voters were 305 percent more likely, and Latino voters 195 percent more likely, to lack the proper ID when compared with white voters, and separate expert testimony that African-American eligible voters were 179 percent more likely, and Latino eligible voters 242 percent more likely, to lack ID when compared with white eligible voters.
- Texas’s photo ID law violates the Constitution because it “imposes a substantial burden on the right to vote, which is not offset by the state’s interests. . . ”. The court credited expert testimony that approximately 608,470 registered voters in Texas lacked qualifying ID, and that “[n]o real effort has been made by Texas to educate the public about the availability of [a free ID] to vote, where to get it, or what is required to obtain it.”
- The law “imposes a material requirement solely upon those who refuse to surrender their constitutional right to vote in federal elections without paying a poll tax,” in violation of the Constitution’s Twenty-Fourth Amendment.
The Fifth Circuit Court of Appeals temporarily stayed the district court’s order blocking the implementation of S.B. 14 as the November 2014 elections approached. The Supreme Court upheld the stay, which allowed Texas to implement S.B. 14 law for the November 2014 election. Subsequently, on August 5, 2015, a panel of the Fifth Circuit Court of Appeals unanimously found that S.B. 14 violated section 2 of the VRA because of its negative impact on voting opportunities for minorities and the poor, and its racially discriminatory effect. The case was remanded to Judge Ramos who, at the time of this writing, is charged with reopening the case to fashion a specific legal remedy to address the discrimination.
Texas has since asked the full Fifth Circuit Court of Appeals to rehear the case before the state seeks Supreme Court review, and it has vowed to apply S.B. 14 in its elections, in spite of the fact that three courts have struck down the law as a violation of the Voting Rights Act, and in spite of the fact that the law effectively disenfranchised many voters in 2014.
B. North Carolina
On April 4, 2013, House Bill 589, which established strict photo identification requirements, shortened the state’s early-voting period by a week, eliminated same-day voter registration, and eliminated pre-registration for 16- and 17-year-olds, among other restrictive changes, was introduced in the North Carolina legislature, where it passed. The bill was signed into law by Governor Pat McCrory in July 2013. North Carolina, like Texas, was a state that, prior to Shelby, was required to “preclear” voting law changes under section 5 of the VRA due to the state’s long history of voting discrimination.
In July 2014, the Department of Justice, the North Carolina State Conference of the NAACP, the League of Women Voters of North Carolina, and other affected groups and individuals sued the state in federal court, alleging that H.B. 589 violated section 2 of the Voting Rights Act because it placed a disproportionate burden on African-American voters when compared with white voters in the state.
In May 2014, plaintiffs sought a preliminary injunction, asking the district court to block the changes for the 2014 election since a full trial on the merits was not scheduled until July 2015. In August 2014, after a four-day-long evidentiary hearing, the district court denied the motion.
Consequently, the plaintiffs appealed to the Fourth Circuit Court of Appeals and received an expedited appeal of the denial of the preliminary injunction. Plaintiffs and amici argued that North Carolina’s massive changes to its voting laws, which occurred only after African-Americans started turning out to vote in large numbers, was a thinly veiled act of racial discrimination in violation of section 2 of the VRA. On October 1, 2014, the Fourth Circuit handed down an opinion that restored same-day registration and out-of-precinct voting for the 2014 election, but left the other provisions of H.B. 589 intact.
The Court of Appeals’ majority found that the district court had abused its discretion in concluding that H.B. 589 was not a violation of section 2 of the VRA: “At the end of the day, we cannot escape the district court’s repeated findings that Plaintiffs presented undisputed evidence showing that same-day registration and out-of-precinct voting were enacted to increase voter participation, that African American voters disproportionately used those electoral mechanisms, and that House Bill 589 restricted those mechanisms and thus disproportionately impacts African American voters.”
North Carolina filed an emergency application to stay the circuit court’s mandate with the Supreme Court and was granted this stay on October 8, 2014. Thus, the law was in effect for the November 2014 election.
On October 23, 2015, U.S. Middle District Court Judge Thomas Schroeder denied the state’s motion to dismiss. This was after the General Assembly made changes to the law in Summer 2015 that allowed those without IDs to cast provisional ballots. The plaintiffs argued that the law was in violation of the Fourteenth Amendment and section 2 of the Voting Rights Act due to its discriminatory intent and disproportionate burden on minorities.
The case went to trial in February 2016, and voter ID was the only issue litigated. During the six-day trial, the plaintiffs presented expert reports that showed that up to 224,800 registrants lacked acceptable voter ID, and concluded that “black voters were more than twice as likely as white voters to lack a qualifying ID and face economic and social obstacles to obtain one.” For example, witnesses for the plaintiffs testified about the difficulty they had obtaining the required identification through the motor vehicle department because their birth certificates had typos. In opposition, the State argued that there is “no proof that anything bad is going to happen” during the upcoming election if photo identification is required and Republican lawmakers—including Governor Pat McCrory, who signed the voter identification legislation—maintained that the law was a common sense way to discourage voter fraud.
At the time of this writing, a decision is not expected until several weeks after the February conclusion of the case, although it is anticipated that early voting will move forward in March 2016 with the new requirements in effect.
As the extensive litigation in Texas and North Carolina illustrates, the evidence makes a strong showing that photo identification laws, intentionally or not, have a discriminatory impact on African-Americans and other minority groups, suppressing their votes. These findings underscore what many impacted communities have argued since the inception of these laws; they simply make it more difficult for African-Americans and other minority groups to participate in our nation’s democratic process.
The 2016 election cycle will offer the best evidence of the effects of voter identification laws. It will be the first national election cycle since most of these laws have gone into effect. The experience of voters will show just how difficult, or not, these newly implemented laws will make it for citizens to vote. The results remain to be seen. However, it is clear even now that these new laws, by their mere existence, have resulted in suppressing, if not the vote, then the spirits of many American voters.