Welcome to the latest edition of our war on voting series, a joint project of Joan McCarter and Meteor Blades. |
Richard L. Hasen, who runs the Election Law Blog, wrote an excellent take in The Atlantic on how lawmakers in a few states have passed laws to “soften” their strict new voter ID statutes. It’s not because they wanted to, but rather to lift their chances that federal courts won’t object to application of the statutes. And it works.
Take Wisconsin, for example. There, in 2014, the state’s Supreme Court found that Wisconsin’s new voter-ID law would make it financially hard on people who don’t have the documents needed to prove their identity. Such documents, especially out-of-state birth certificates, can be expensive and otherwise difficult to obtain.
To keep the voter-ID law from running afoul of federal constitutional guarantees, the conservative-dominated Wisconsin Supreme Court engaged in what Hasen labeled a “creative reading” of the law, one that puts the burden on the Department of Motor Vehicles to help voters prove who they are and get an ID saying so. State regulations require “officials to get birth certificates (or other qualifying documents) themselves for persons who ask for that accommodation on the basis of hardship,” the justices ruled.
The federal courts relied on this state court interpretation to beat back a challenge to Wisconsin’s law that was based on the U.S. Constitution and the Voting Rights Act.
So how does the “softening” work in practice? Here’s Hasen:
A recent lawsuit accuses the state of Wisconsin of disenfranchising an eligible voter who had lost the use of her hands, because she could not sign a government document to get a voter ID. Another voter, who was born in a German concentration camp and could not produce a birth certificate, had to go to extraordinary lengths at the state’s Department of Motor Vehicles in order to vote. Strict state voter-identification laws are proving disconcerting on the ground. [...]
According to the nonprofit One Wisconsin Now, the state’s DMV has created such a draconian bureaucratic voter-ID exemption process that many voters simply give up in anger and frustration. Analyzing DMV data, One Wisconsin Now’s February 29 lawsuit makes a number of accusations against the DMV, including the complaints from the woman who lost the use of her hands—and who “even provided her daughter with power of attorney giving her permission to sign, but the DMV did not allow it”—and the senior citizen who had been born in a German concentration camp and didn’t have a birth certificate. The suit also asserts that others who tried to get an exemption were turned down over “minor discrepancies in the spelling of their names or uncertainties about their exact dates of birth—even though DMV acknowledges it has no doubts these disenfranchised voters are U.S. citizens.”
• A look at Judge Merrick Garland on voting rights. At his blog, Richard Hasen analyzed how President Obama’s Supreme Court nominee Merrick Garland might rule on a variety of issues. Garland has not decided many voting rights cases, Hasen wrote, but he did rule on an important one in 2012—Florida v. U.S.
At issue in the case was whether Florida needed to “preclear” its cutbacks in early voting with federal authorities under the Voting Rights Act. (The preclearance provision was made moot by the U.S. Supreme Court with its 2013 ruling in Shelby County v. Holder.)
Judge Garland sat on a three judge district court that issued a per curiam (unsigned) opinion, so we do not know if he was an author. But I would suspect he had a big hand in crafting this opinion which again is erudite and careful. The judges reached the conclusion that Florida’s cutbacks in early voting violated the Voting Rights Act because Florida could not show that the changes would not make minority voters worse off. The court essentially told Florida it had to keep the same number of hours of early voting as it had offered before to get preclearance. The court approved other changes to Florida election law, finding they would not make minority voters worse off.
• Brennnan Center and co-plaintiff will appeal “LLC Loophole” decision: A judge on the Supreme Court of the State of New York has ruled against the Brennan Center for Justice at NYU School of Law and Emery Celli Brinckerhoff & Abady LLP in a case they filed last year against the New York State Board of Elections on the matter of the “LLC Loophole” that has let millions of dollars in “dark money” enter state elections. Elizabeth Saylor, a partner at Emery Celli, et al., said corruption has been the result of the Board of Elections decision to treat LLCs as natural persons not covered by the legislature’s restrictions on corporations and other artificial entities. Said Lawrence Norden, deputy director of the Brennan Center’s Democracy Program:
“There’s no question we are disappointed. We believe this ruling was wrong,” “The state legislature never intended to create this loophole, and it has had a detrimental effect on New York’s elections and governing. We intend to pursue all of our options for correcting the Board of Elections error, including an appeal of this ruling.”
• Oregon’s “motor voter” law causing problems for political parties: The number of unaffiliated voters in Oregon has grown from 417,000 in 15 years ago to 540,000 now, 24 percent of the total registered. That growth could accelerate under the state’s new automatic voter registration law. In the two months the Democrat-championed law has been in effect, 13,500 of the 15,502 voters registered automatically when they get a driver’s license or renew an old one have opted for unaffiliated status. That’s 86 percent. All told, the new system is expected to add 400,000 new voters to the state’s rolls, an increase of 18 percent.
Secretary of State Jeanne Atkins announced Wednesday, March 16, that Oregon would be mailing reminders to all unaffiliated voters statewide that they can vote in the closed Republican or Democratic primaries in May only if they switch to a party affiliation by requesting the appropriate ballot no later then April 26. The Independent Party, which will be participating in its first major election this year, is allowing unaffiliated voters to cast ballots in its primary.
• Long lines and “electoral chaos” sparks lawsuit in North Carolina: Hours after the polls closed in Durham, North Carolina, for the March 15 primary, voters were still in line at a number of the state’s 2,700 precincts. At the Pullen Community Center, for instance, the precinct where most NC State University students are registered to vote, the last ballot was not cast until around 11 PM, three-and-half hours at the polls were supposed to close. There were similar complaints elsewhere.
Confusion about the state’s new voter-ID law, about where to vote, which party ballot to use and other issues forced many people to cast provisional ballots, according to complaints. Consequently, on Wednesday, March 16, the Rev. William Barber, president of the NC NAACP, blamed the new photo ID requirement for what he labeled “electoral chaos.” Barber said leaders "should be in the business of making it easier to vote, not harder. The right to vote should be constitutional, not confusing." But several county officials told reporters that most of the hang-ups at the polls were unrelated to voter-ID.
Jackie Hyland, State Board of Elections spokesperson, issued the following statement to ABC11 in response to Barber:
"More voters participated in yesterday's election than in any prior primary. Early voting was also a huge success. While we are carefully reviewing ways to shorten wait-times, we are proud of the work counties did to ensure voters' voices were heard at the polls.