09.13.12

Backlash Swells Against Voter Laws

The left has attacked voter ID laws and other restrictive legislation as a tool to suppress the votes of minorities and poor people. Suddenly, it seems they’re winning.

Another symbol of just how quickly the political calculus can change ahead of Election Day: crucial swing states Ohio and Florida, along with Texas, South Carolina, and Wisconsin, have won significant—albeit possibly temporary—victories against restrictive voting laws over a span of mere weeks. Voting laws, including the requirement that people carry photo IDs to the ballot box, have became a major source of controversy as the presidential race remains close less than two months ahead of the election. 

“The tide has clearly turned,” says Diana Kasdan, counsel for the Democracy Program of Brennan Center, a public policy institute affiliated with New York University. “The results are coming in, court after court is rejecting these restrictive laws.”

The next crucial decision will come out of Pennsylvania. The state’s law requiring all voters to show identification is currently being debated by the Pennsylvania Supreme Court; a decision is forthcoming. 

Since the Republican takeover of the House in 2010, voting laws restricting access to the ballot began passing in states across the country. But until two months ago, they had received little national attention. Now, a federal judge has blocked Ohio’s “right church, wrong poll” law that discounts provisional votes cast in the wrong precinct. In Florida, residents incorrectly removed from voter polls for being noncitizens have had their voting rights restored. And a federal court rejected Texas’s voter ID law on Aug. 30. Series about voting rights, such as MSNBC’s “Block the Vote” continuing segment, are now being aired during primetime TV news.

Behind the turnaround is a network of civil rights and advocacy groups, along with branches of the federal government, that have been battling these laws as they crop up. In Ohio, the Obama campaign, the Democratic National Committee, and the Ohio Democratic Party sued Republican Ohio Secretary of State John Husted alleging that the restriction on early voting violated the Equal Protection Clause of the 14th Amendment

Litigation by the Advancement Project, a national civil rights organization, spearheaded another Ohio suit that challenged the state law that provisional votes mistakenly cast in the wrong precinct could be discounted. The American Civil Liberties Union of Pennsylvania has led the charge against that state’s voter ID law.  
 
The Brennan Center has advocated for voting rights from Wisconsin to South Carolina. 

The Department of Justice itself, along with other advocacy and civil rights groups, challenged Florida’s so-called “voter purge,” which removed thousands of eligible voters from the rolls in an attempt to crack down on noncitizens voting. The program was reversed on Wednesday. 

Voting experts say that beyond the legal attacks from outside groups, the biggest enemy of struck-down voter laws may be the laws themselves. 

“These courts smelled a rat,” says Dan Tokaji, a professor of election law at Ohio State University’s Moritz School of Law. “State legislatures overplayed their hand and got greedy. It was transparent that the real reason for these changes was to make it difficult for some people to vote.” 

Civil-rights groups like the Advancement Project have claimed that restrictive laws on voting disproportionately affect minority and low-income voters who don’t have access to photo IDs or typically vote via church drives that take place during early voting periods.

Rick Hasen, a professor of law and political science at UC Irvine and the author of The Voting Wars says “some of these laws are an overreach without good reasons for their enactment—and sometimes run afoul of federal, constitutional or statutory law.”

“These courts smelled a rat.”

“The public got fed up with these laws,” says Kasdan of the Brennan Center.

Voting-rights experts are quick to point out that these victories, while important, are tenuous. 

Hasen says some of the rulings may be “ephemeral,” adding that he expects Texas’s voter ID ruling and Ohio’s early voting decision to be overturned, possibly disenfranchising thousands of Americans, before election day.

Kasdan says the Brennan Center will ensure there are plenty of people “on the ground to make sure people know what the law is in their state due to the patchwork of laws across the country. Still, she says, “the game’s not over.”