“These laws can be explained by partisanship and by race,” said Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice, a legal civil rights advocacy group. “It’s hard to reconcile these actual laws with the stated purpose. The more reasonable and likely explanation is political self-interest. Voting laws are a way to restrict voters you think are more likely to vote for the other side.”
Wisconsin Gov. Scott Walker, an early 2016 Republican presidential candidate, told News21 that such criticisms are unfair. “It’s a discriminatory statement to say that in today’s society, people regardless of race or status aren’t able to get photo ID, particularly when the state provides it for free,” he said. Days earlier, a federal court ruled that, for the November election, Wisconsin must offer those without photo ID the option of signing an affidavit swearing to their identity, a decision that was later overturned by a federal appeals court.
Those were part of a flurry of court rulings in late July and early August that struck down, weakened or altered new voting requirements in Wisconsin, Texas, North Carolina and North Dakota because, the courts concluded, the laws would disenfranchise people of color. In some cases, judges ruled that the laws’ discriminatory effect was intentional.
By contrast, some Democrat-controlled states, mostly in the West and New England, have passed laws that gave voters the option to register every time they walk into a motor vehicles office or at the polls on Election Day, made it easier to vote early or have converted their elections to entirely vote-by-mail.
Republican state leaders and conservative advocates of voter ID and other new requirements have insisted that they are necessary to prevent voter fraud and protect the integrity of elections. But a 2012 News21 50-state analysis of cases since 2000 found that the rate of voter fraud is infinitesimal compared with the total number of voters nationwide and that in-person voter impersonation on election day – the type of fraud voter that photo ID is designed to prevent – is virtually nonexistent. A 2016 update, in which News21 revisited five sample states that enacted new voting requirements to reduce fraud, again found few convictions for voter fraud and none for voter impersonation.
The ongoing political and legal wars over voting rights date to the mid-2000s, when the first new state voting requirements were enacted. Their number greatly increased after the 2010 off-year election, in which Republicans more than doubled the number of states they controlled – from nine to 20 – with majorities in state legislatures and the governor's party, according to a News21 analysis of data from the National Conference of State Legislatures. Democrats, by comparison, lost control of five states, going from 16 to 11. Party control remained divided in the other states.
A 2014 study by the U.S. Government Accountability Office found that laws requiring specific kinds of voter ID in Kansas and Tennessee depressed voter turnout in those states in 2012, with African-Americans and young voters disproportionately affected. Ten state-specific and nationwide studies within the GAO report found that African-Americans and Latinos were always less likely to have the required voter ID than whites, and Native Americans and Asian-Americans were frequently at a similar disadvantage.
The National Commission on Voting Rights, a civil rights advocacy group, similarly contended in a 2014 report that minority populations were more likely to be disenfranchised by voter ID requirements and reductions in early voting and same-day registration, new restrictions for voter registration drives and limits on the restoration of voting rights for felons who have served their sentences.
Richard Hasen, an expert in voting law trends and a professor of political science and law at the University of California, Irvine, told News21 he believes the nation is now at a turning point because of the recent court decisions overturning new voting requirements in some states.
“In the past, courts seemed to be divided on partisan and ideological lines on how to approach these cases, but in 2012 and now in 2016 we see the courts becoming skeptical of what appears to me to be Republican overreaches in making it harder to register and to vote,” he said. The court decisions could deter more states from instituting similar laws, Hasen added, because “it signals they are not going to have an easy path.”
However, a June 2016 report by a collection of civil rights advocacy groups, including the ACLU and the NAACP, cited problems with minority and low-income voter access in the presidential primaries of several states that had implemented new voting requirements. These “warning signs,” the groups said, indicated that the new laws could still affect the outcome of November’s presidential election.
In Ohio, for example, recent changes to voter ID requirements, same-day registration and early voting could affect a tight election, according to Melissa Miller, a political science professor at Bowling Green State University. “The question becomes what kinds of changes to voter laws make it easier versus harder for those who don’t tend to vote,” Miller said. “I think the effects tend to be marginal, but occasionally you’ll get an election like 2000 where a particular swing state – in that year it happened to be Florida, it could be Ohio in 2016 – where the result may be very, very close.”
Some states put new voting requirements in place only after the 2013 U.S. Supreme Court decision in the Shelby County v. Holder case negated the provision in the 1965 Voting Rights Act that required them to clear such changes in advance with the U.S. Justice Department. For example, Texas enacted one of the strictest photo ID laws in the country in 2011, only to have its implementation blocked by the federal government. But on the same day in 2013 on which the Shelby County decision was handed down, state officials announced that the ID law would finally be enforced. While it has since been ruled to be discriminatory four times by federal courts, it was kept in place while the state appealed those decisions.
“We think it’s perfectly reasonable when you need to show a photo to pick up your kids from school, sometimes to pick up your pet from the kennel, that it’s OK to show a photo to prove that you are the person who is voting,” Republican Texas Lt. Gov. Dan Patrick, a co-author of the voter ID law, told News21.
The plaintiffs in the Texas court case argued that the law amounts to a modern poll tax because many voters without photo ID are low-income people who, without driver’s licenses, faced trips of 90 minutes or more via public transportation to government offices to pay for and obtain the required forms of ID.
It wasn’t until July 2016 that another appellate ruling kicked the case back to a lower court to determine ways to make it easier for Texans without ID to vote, after the court found that more than 600,000 lacked the required ID. Then, for the November election, the plaintiffs and the state reached an agreement to allow people without ID to have their votes count if they sign a sworn statement.
On Aug. 1, a federal judge blocked a strict photo ID law in North Dakota from being enforced for the November election. The judge concluded that the state’s 2013 law, which only allowed four types of acceptable government-issued ID, would cause undue burdens for Native Americans, especially when “voter fraud in North Dakota has been virtually non-existent.”
After the Shelby County decision, North Carolina’s Republican-majority Legislature passed legislation that eliminated same-day registration, required a photo ID to vote and reduced the number of early voting days, eliminating one of the two Sundays for it. Early voting has been popular among African-Americans in the South, including the “souls to the polls” tradition of going to the polls together after church services on the Sundays leading up to Election Day.
The North Carolina law was struck down in July, when the 4th Circuit Court of Appeals concluded that its provisions “target African Americans with almost surgical precision,” noting that they are “disproportionately Democratic.” Eliminating one of the Sundays for early voting “comes as close to a smoking gun as we are likely to see in modern times,” the appellate court said.
North Carolina state Sen. Ron Rabin, who helped pass the law, told News21 that it still allowed 10 days of early voting and that same-day registration caused voter confusion. “Let people be responsible for themselves once in awhile and what their duties are as a citizen,” Rabin said, “as opposed to keep trying to spoon-feed them everything, or give them everything.”
The Shelby County decision also undermined the Justice Department program that had monitored elections in states and localities previously covered under the Voting Rights Act. Now, Justice can only send observers to where they are ordered by a federal court. Otherwise they must get local permission to enter polling places. There are just seven counties or cities in five states that will fall under court-ordered observation for the November election, according to a Justice spokesman, compared with the 11 states where observers formerly had authority under the Voting Rights Act because of a history of discrimination.