Politico reports on the fear among Democrats and voting rights activists that getting out the vote (GOTV) will be much harder in light of the new more restrictive voting laws being adopted in states like Georgia. The article is useful because it helps explain the intensity of the opposition to these laws. And without getting into a discussion here about how unjustified (or not) these new laws are from a policy perspective, it is worth noting an analytical distinction that often gets elided in the coverage of these laws: cutbacks in voting opportunities that are retrogressive, and thus are an impediment relatively speaking to GOTV efforts, are not necessarily voter “suppression” in the strict sense of disenfranchisement (i.e., a barrier to casting a ballot and thus participating in the election). If voters have a genuine opportunity to participate but choose to abstain, they aren’t being denied the right to vote. This is true even if voter turnout efforts on the left fail to reach their target goals, or even past turnout levels. To be sure, these laws may be cynically motivated by a partisan realization that turnout rates are variable, depending on how convenient voting is; if it is less convenient, some marginal voters may not bother to cast a ballot, even though they actually have an opportunity to do so. It is certainly appropriate to condemn that kind of cynical partisanship, since it is a form of bad faith and contrary to the ideal of structuring the rules of electoral participation in the public interest (based on a nonpartisan assessment of the overall relevant policy considerations). Even so, discussion of this topic (at least in my view) ought to be careful to use terminology that recognizes the distinction between new laws that hinder participation compared to new laws that deny participation. Often, it seems that the phrase “voter suppression” or similar language is employed to make the former seem more like the latter, or at least to lump the two categories together.
Voting Laws Roundup: July 2021. I saw this just after posting on Politfact’s caution on the need to be nuanced when characterizing these new state laws. To the Brennan Center’s credit, this July update prominently states up front: “The new laws restricting voting access are not created equal.” It goes on to explain that some of the new statutes are “mixed” and others are “narrower in scope.” Still, I might quibble with how the Brennan Center describes some of the specific measures. For example, it calls “harsher” the requirement for absentee voters to produce a numerical form of identification (like a driver’s license number) rather than to use signature-matching as the way to verify an absentee voter’s ID. I would argue, to the contrary, that an accessible form of numerical ID is actually more voter-friendly than the inherently fraught process of signature-matching. Even so, I consider it a positive development if the public discourse on these laws is becoming more detailed-oriented and less of painting with the broadest possible brush.
An 8th U.S. Circuit of Appeals panel on Friday upheld a federal judge’s May 2020 order that the state pay $452,983.
The state in February 2020 agreed to settle longstanding legal disputes with Turtle Mountain Band of Chippewa members as well as the Spirit Lake and Standing Rock Sioux tribes. The crux of the tribal claims was that North Dakota’s requirement that voters have identification with a provable street address creates a voting barrier for Native Americans who live on reservations where street addresses are hard to come by.
Jonathan Lai of the Philadephia Inquirer has the details.
Clyburn is trying to have his cake and eat it, too. He routinely decries “voter ID” laws, but at the same time he insisted on Fox News that he has never opposed such laws — and that every Democrat has supported them. In reality, he appears to be against many types of voter ID laws — ones that require photos, or a fee for a photo or which favor one voting group over another.
In other words, he’s playing word games. He supposedly is for voter identification but against most of the voter ID laws being adopted by states.
Republicans in the Texas Legislature on Thursday fully unveiled their plans to overhaul the state’s election apparatus, outlining a raft of proposed new restrictions on voting access that would be among the most far-reaching election laws passed this year….
Among many new changes and restrictions to the state’s electoral process, both bills would ban 24-hour voting and drive-through voting; prohibit election officials from proactively sending out absentee ballot applications to voters who have not requested them; add new voter identification requirements for voting by mail; limit third-party ballot collection; increase the criminal penalties for election workers who run afoul of regulations; limit what assistance can be provided to voters; and greatly expand the authority and autonomy of partisan poll watchers.
Republican members of the North Carolina General Assembly are not allowed to intervene on behalf of the state in a lawsuit over its embattled voter ID requirements, the full Fourth Circuit ruled Monday.
In a 45-page majority opinion written by U.S. Circuit Judge Pamela A. Harris on Monday, the en banc appeals court upheld a federal judge’s refusal to let individual GOP lawmakers defend the controversial election law requiring photo ID at the polls.
Harris wrote that the district court did not abuse its discretion when it found that the legislators’ proposed intervention in the case was “likely to cause undue delay and prejudice to the plaintiffs.”
You can find the 29-page opinion at this link (via WRAL).
The opinion leans heavily on the Supreme Court’s use of a presumption of legislative good faith in Abbott, despite an earlier history of racially discriminatory conduct.
I recently wrote about how this presumption, along with other recent Supreme Court apparently procedural rules, help pave the way for courts to uphold more suppressive voting laws. See The Supreme Court’s Pro-Partisanship Turn, 109 Georgetown Law Journal Online 50 (2020).
A federal appeals court on Friday struggled with how to weigh North Carolina’s history of discriminatory voting restrictions while examining the state’s latest election law that requires voters to present photo identification before casting ballots.
Ahead of oral arguments before the U.S. Court of Appeals for the 4th Circuit, Gov. Roy Cooper (D) urged the judges to prevent the measure, known as S.B. 824, from taking effect over objections from Republican legislative leaders.
“Lifting the injunction now would be disastrous,” lawyers for the governor told the judges in court filings. “The brunt would be borne by the same voters whom S.B. 824 targeted for disenfranchisement in the first place: minority voters who are both least likely to possess photo IDs that satisfy S.B. 824 and most vulnerable to COVID-19.”
The photo ID requirement is the latest in a series of North Carolina election measures scrutinized in court. The law was passed after the 4th Circuit struck down a separate set of voting rules that the court said in 2016 deliberately undercut the political power of Black voters and “target African Americans with almost surgical precision.”
The three judges hearing the case — Pamela Harris, Julius N. Richardson and A. Marvin Quattlebaum Jr. — asked lawyers on both sides how they should account for the state’s political past when considering the current law.
“I understand that we can’t just ignore that. At the same time,” said Harris, a nominee of President Barack Obama, “the fact that a legislature passes one voter law with a discriminatory intent doesn’t forever disable a legislature from passing a voter ID law.” And she said, “this one is better. It has these ameliorative features that the prior law didn’t have.”
You can find the opinion in Greater Birmingham Industries v. Alabama at this link.
This opinion is very troubling because the majority held it was appropriate to grant summary judgment to the state of Alabama despite evidence that at least some of the legislators who passed this law did so with racially discriminatory intent, despite the uncontroverted evidence that African-American voters are less likely than white voters to possess the right kinds of identification accepted for voting in Alabama, and despite the lack of any evidence in the record of a problem with the kind of voter fraud (impersonation fraud) that a voter id law can stop. And in this case, unlike the Crawford case in which the Supreme Court upheld Indiana’s strict voter id law, plaintiffs came forward with evidence of how the Alabama law was particularly burdensome on some state voters.
This case should have been allowed to go to trial to fully develop the evidence.
Legislative Republicans called on the courts Thursday to lift an injunction and require voter to present photo identification at the polls this November, saying a bill they passed earlier this year should satisfy the last arguments against the rule.
“It is past time for activist courts to stop blocking another commonsense elections policy that is required by North Carolina’s constitution and a strong majority of other states,” House Speaker Tim Moore said in a statement.
There are two lawsuits seeking – so far, successfully – to block the state’s voter ID requirement: one state and one federal. Republican lawmakers filed a motion in the state case Thursday, asking judges to drop their injunction against the state’s voter ID law.
They argued that a provision included in House Bill 1169 earlier this year should satisfy the court.
This is mostly a loss for the plaintiffs in these cases, as the appeals court rejected many (though not all) of the challenges to Wisconsin election law. There is a small victory on student ids and a chance to litigate more over how Wisconsin handles the voter id process for voters having trouble getting ids. But overall this is a very voter-unfriendly decision (and I say that not necessarily because of the holdings but because of the dismissiveness of the panel’s approach to voting rights issues and what it means for future challenges).
This appeal is complicated: it comes from two separate cases where various election laws were challenged as unconstitutional, a violation of the Voting Rights Act, or both. Some of the decisions of the lower court judges were inconsistent, and some of the issues, came up to the 7th Circuit in earlier challenges to the voter id aspects of the law. Judge Easterbrook, as is his style, gives breezy and superficial treatment to many of these voting issues, making the three year delay in a unanimous case all the more inexplicable.
The opinion starts out with a very troubling discussion of Judge Adelman’s findings that some of these restrictive Wisconsin voting laws were passed with racial and partisan animus. The 7th Circuit found little direct evidence of racial discrimination and then suggested, in a very troubling way, that making it harder to vote on the basis of party is perfectly acceptable. (“If one party can make changes that it believes help its candidates, the other can restore the original rules or revise the new ones. The process does not include a constitutional ratchet.”). In support of this terrible idea, Judge Easterbrook cites the Rucho case from the Supreme Court, which held that there are no judicially manageable standards to separate permissible from impermissible consideration of party in redistricting. But that did not carry over into voting rules, like rules for early voting, and the Supreme Court has never held that partisan animus provides a legitimate basis for discriminatory voting rules.
Making matters even worse, Judge Easterbrook dismisses without analysis the argument that discriminating against Democrats when so much of the party is made up of racial minorities can in some circumstances be a form of racial discrimination. (“The record does not show that legislators made any of the changes because Democratic voters are more likely to be black (or because black voters are more likely to support Democrats). The changes were made because of politics.”).
Judge Easterbrook also dismissed age discrimination arguments under the 26th amendment in a short few sentences. Almost as quickly, the court rejected arguments under the Voting Rights Act that cutbacks on early voting opportunities discriminated against minority voters. More generally, the court criticized the district court for viewing election changes in isolation, viewing Wisconsin’s law overall as providing many opportunities to vote easily.
In one good part of the opinion, the court held that students can vote with an expired student id, or at least that’s how it appears from the court’s opinion. [This part has been corrected.]
Two lower courts had required Wisconsin to provide a way of dealing with voters who lacked the ability to easily get a valid id for voting. The court rejected both injunctions but gave one of the courts on remand a chance to rewrite the injunction so that it would both protect voters and give the state flexibility as it worked out the details of its system.
It’s pretty clear overall that the judge thought more of Judge Peterson’s analysis than Judge Adelman (who has been mildly admonished for his writings on the partisanship of the Supreme Court). The 7th Circuit said the cases should be consolidated in front of one judge (the court didn’t say which one) so that there won’t be more inconsistent rulings.
[This post has been updated.]
Voter ID laws are becoming more common and more strict, and the stakes for American democracy are high and growing higher by the year. New research from the University of California San Diego provides evidence that voter ID laws disproportionately reduce voter turnout in more racially diverse areas. As a result, the voices of racial minorities become more muted and the relative influence of white America grows.
In a study published in the journal Politics, Groups, and Identities, researchers focused on turnout changes across the 2012 and 2016 presidential elections in states that had recently passed strict photo voter ID laws: Alabama, Mississippi, Virginia and Wisconsin and compared those changes to other states with similar racial compositions that had not passed laws. They found the turnout gap between white counties and racially diverse counties grew more within states enacting new strict photo ID laws.
Such results lead to “an already significant racial skew in American democracy growing even more pronounced,” according the authors.
Contrary to previous studies on voter ID laws, the researchers used actual voter turnout data, rather than surveys gauging attitudes towards voting.
“By using official turnout data, we eliminate concerns over inflated or biased turnout patterns from self-reported surveys,” said co-author Zoltan Hajnal, a professor of political science at the UC San Diego School of Global Policy and Strategy. “This analysis provides more precise evidence that strict voter ID laws appear to discriminate.”
Democratic Gov. Roy Cooper signed a wide-ranging elections bill into law Friday, HB 1169. It passed the N.C. General Assembly with the support of every Republican and most Democrats. In addition to its other changes listed above, the bill also includes extra money for increased cybersecurity, among other things….
Supporters of the bill had cited the long lines to vote recently in Georgia and Wisconsin that have made national news, causing hours-long waits for people trying to vote in person, as one reason to increase election spending here — in addition to making it easier to request, use and track absentee mail-in ballots.
The changes, however, will only apply to the 2020 elections . Officials believe that this year the state could see nearly half its votes cast by mail….
The Democrats who did oppose the bill said they didn’t like an unrelated section, tweaking the state’s controversial voter ID law. That law has been temporarily blocked from going into place, after two different courts ruled that it appears the legislature passed it in 2018 with racist motivations to target Black voters.
But the court cases aren’t over yet, and if voter ID’s Republican supporters win in court in the next few months, it’s possible that voters could be required to show ID at the polls.