[author: Aaron Kase]
In the run-up to the November elections, voter ID laws that have been enacted in states across the country are facing court challenges. Some will be upheld, some will not.
Uncertainty around how many people will be disenfranchised in November and the lawsuits that could follow in states that have successfully implemented voter ID laws creates a possibility that results could be delayed for weeks or months in the event of a contested election, due to after-the-fact litigation and arguments over how to count provisional ballots.
“The election official’s prayer is ‘Dear Lord, let this one not be close,’” says Justin Levitt, a professor at Loyola Law School who specializes in election laws. “I think everybody, and I do mean everybody, would like for the elections to be decided by something other than who is able to cast a valid ballot.”
States have had mixed results implementing strict ID laws. In Wisconsin, judges struck down such a law, finding it would unconstitutionally deny people the right to vote. In Georgia, on the other hand, the Department of Justice allowed a voter ID law and it survived a state Supreme Court challenge, based in part on the fact that the state promised to give out free IDs to people who needed them.
The National Conference of State Legislatures has a database providing information on exactly what laws are in place in what states. “The ID laws are different, state by state, and they’re very rarely uniform,” Levitt says, explaining why the laws have been upheld in some states and struck down in others. The facts on the ground are different, and challenges also rely on the dispositions of individual judges, he notes. Plus, “there are 50 different state constitutions and each of them operates a little differently,” the law professor says.
Can You Vote in Your State?
Justin Levitt
Thirty-one states have active laws requiring some form of ID to vote, although currently only five have the strictest form of photo ID laws in place– Pennsylvania, Georgia, Indiana, Tennessee and Kansas. However, that number could change, as with less than two months until election day strict laws in several states are still undergoing court challenges:
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In Pennsylvania, the implementation of a strict voter ID law could still be rolled back. Last Monday the state Supreme Court sent a lawsuit over the legislation back to a lower court that had previously upheld it. The high court rejected the previous decision that the law could not be found unconstitutional on its face, and ordered the judge to consider whether the state had made an adequate effort to supply valid identification to every voter who sought it.
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Closing arguments were heard on Monday to determine whether South Carolina’s strict voter ID law will be allowed to be implemented before November. The decision hinges on whether the law unfairly discriminates against minorities at polling places. The state requires pre-clearence from the Department of Justice to change voting laws because of its history of suppressing minority voters.
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The Texas voter ID law was struck down by the U.S. Department of Justice in March, a decision which was backed up by a recent Court of Appeals ruling. Texas also requires pre-clearence from the DOJ. The Justice Department found in this case that charging fees for IDs does in fact have a disparate affect on blacks and Latinos. The U.S. Supreme Court could potentially hand down a final ruling on the law before November.
The Supreme Court previously upheld a voter ID law in Indiana in 2008. However, there was an important caveat that means the previous decision might not apply to new challenges: “The Supreme Court said on the evidence we have, you haven’t shown there’s an undue burden on your right to vote based on this law,” Levitt explains. “If you show an undue burden, we might well change our minds. That’s in part important because all of the laws so far . . . have been challenged before they’ve actually been implemented.”
If people who should be able to vote are not allowed to in November and bring a challenge, we could well be looking at another election decided by the courts, not the voters.
Read our recent story about the disparate impact these laws can have on Latinos.
Do you think these strict voter ID laws are fair?
