With just about 10 months until Election Day, ongoing courtroom battles over voting restriction have made it so that we still don’t know exactly when, and how, Americans in a number of states will be able to vote.
Many of those battles originated with the Supreme Court gutting Section 5 of the Voting Rights Act in 2013. Section 5 had barred states and jurisdictions with a history of racially motivated voting discrimination from enacting changes to their election laws without approval from the federal government or without going to federal court. In a 5-4 decision, the Supreme Court eliminated the most effective part of the landmark 1965 civil rights act. States rushed to pass onerous measures, including requiring government-issued photo identification to vote, eliminating same-day registration and cutting early voting.
Voting rights advocates have challenged those laws, arguing they disproportionately affect racial minorities, low-income people and other groups. But as the civil rights advocates’ lawsuits inch toward the Supreme Court, they venture into unknown territory.
This will be the first presidential election in decades without the full force of the VRA. The VRA’s remaining strength to block new restrictions on voting -- most commonly through its Section 2, which prohibits voting practices that discriminate on the basis of race, color or membership in language minority groups -- is still relatively untested.
The clock is ticking for judges to hear and decide these cases before the upcoming presidential election. In 2014, the Supreme Court used a concept called “the Purcell principle” -- which dictates that courts should not change voting rules too close to an election -- to allow restrictions in Texas, Ohio and North Carolina to go into effect just before Election Day.
“If we do run up against deadlines, whatever courts decide about the merits of some of these laws might not apply until after the 2016 election,” said Richard Hasen, a professor of law and political science at the University of California, Irvine School of Law.
Here are some of the major court fights that could affect voters' access to the ballot in this year's election.
Cutbacks to early voting and same-day registration
Following the Supreme Court decision in 2013, North Carolina’s Republican-controlled legislature passed a sweeping package of voting restrictions, including reducing the number of early voting days by a week and eliminating same-day registration. Civil rights advocates say racial minorities relied heavily on those means of voting. A federal trial over the registration and early voting provisions was held last summer, but the judge has not yet released his decision, and the case may end up at the Supreme Court.
Veteran Democratic lawyer Marc Elias, who is presidential candidate Hillary Clinton’s general counsel, is behind a lawsuit challenging Ohio’s elimination of same-day registration as well as its cutbacks to early voting. The American Civil Liberties Union negotiated a settlement last year that resulted in Ohio restoring one day of Sunday voting and adding some weekday evening hours, but it did not bring back the state's "Golden Week," which allowed Ohioans to register and vote in the same day. Elias is also challenging restrictions Wisconsin has passed, including cutbacks to early voting days and a new voter ID measure. That case goes to trial May 16.
Voter identification requirements
North Carolina also passed a package of voting restrictions, including a government-issued photo identification requirement that is in effect for the first time this year. In June, Republicans in the state legislature added language to the voter ID law that allowed people to vote if they had signed an affidavit saying they reasonably can't obtain a required form of government-issued photo ID. Because of this, the state has argued that a trial over the provision should be canceled, but one is still set for later this month.
Texas’ Republican-controlled legislature passed a strict voter ID law that the federal government blocked. However, it was able to go into effect after the VRA was de-fanged. Over 600,000 voters in the state are estimated to lack one of the forms of ID eligible under that law. (As in North Carolina, student ID cards do not count, but concealed weapons permits do.) A three-judge panel of a federal appeals court ruled in August that the voter ID law had a discriminatory impact and thus violated the VRA's Section 2. Texas is now asking the full court to hear its appeal, in an attempt to avoid changing how its ID law is implemented. If the full federal appeals court declines to rehear the case, the law could also end up at the Supreme Court.
Hasen called these two states’ voter ID disputes “bellwether cases” for how much sway the VRA still has with judges after the Supreme Court invalidated the act's Section 5.
“Everybody’s waiting to see what happens in Texas and North Carolina, and whether Section 2 is effective, even partially, to deal with the loss of Section 5,” he said.
Virginia’s government-issued photo identification requirement goes on trial in federal court on Feb. 22. Like North Carolina and Texas, the state enacted its law in 2013. (Notice a trend?) Elias and other voting rights advocates brought forth the lawsuit, which argues the law burdens the Virginians who are least likely to have an eligible piece of ID, like low-income voters and racial minorities.
The ACLU is challenging Wisconsin’s photo ID law on behalf of homeless veterans and others who may lack an acceptable form of identification, since the state’s law does not accept U.S. Veterans Administration ID cards. A federal appeals court will hear their case in the spring.
Civil rights groups are challenging Alabama’s shuttering of 31 county Department of Motor Vehicles offices, arguing that the closures would disproportionately impact racial minorities who lack one of the forms of government-issued IDs needed to vote. Every county in the state in which African-Americans comprise at least 75 percent of registered voters lost its DMV office, according to the ACLU.
Two-tier registration
If you live in Kansas and fill out a federal voter registration form rather than a state registration form, you may vote for federal offices on the ballot, but not state or municipal level offices. That’s because the state registration form requires voters to prove their citizenship with a birth certificate, passport or other form of documentation, but the federal form does not. The two-tier voting system is a result of a 2013 Supreme Court decision ruling that Arizona’s similar proof-of-citizenship requirement was unconstitutional. Kansas and Arizona interpreted that decision to mean that they could still enforce their proof-of-citizenship requirements for nonfederal offices. The ACLU sued and is waiting for a decision from a trial court declaring the two-tier voting system unlawful.
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