Victories against Voter ID Laws in the Courts Don’t Always Erase Voting Restrictions at the Polls

Thursday, October 27, 2016
(photo: ACLU)

 

By Michael Wines, New York Times

 

MADISON, Wis. — It seemed a clear victory for voting rights advocates in July when a federal court invalidated much of Wisconsin’s restrictive elections law, concluding that it discriminated against minorities by requiring voters to produce photo identification cards that blacks and Latinos too often lack. The remedy was straightforward: Henceforth, the state was to “promptly issue a credential valid as a voting ID to any person” who applied for one.

 

But this month when Treasure Collins visited one of the Wisconsin motor vehicle offices that issue IDs, she found something entirely different.

 

“I brought everything my mom told me I would need: my school ID, a copy of my birth certificate, my Social Security number,” said Collins, 18. “But they told me I needed an original copy of my birth certificate. An original copy, all the way from Illinois.”

 

While Donald Trump repeatedly claims that the election is “rigged” against him, voting rights groups are increasingly battling something more concrete in this year’s ferocious wars over access to the ballot box: Despite a string of court victories against restrictive voting laws passed by Republican legislatures, even when voting rights groups win in court, they are at risk of losing on the ground.

 

In an election year when turnout could be crucial, a host of factors — foot-dragging by states, confusion among voters, the inability of judges to completely roll back bias — are blunting the effect of court rulings against the laws.

 

Last month in Texas, a federal court that invalidated that state’s voter ID law in July ordered recalcitrant state officials to change their public education campaign on new ID rules. The reason: Critics complained that the campaign muddied the central point of the court’s ruling, that voters without a state-approved ID could simply sign an affidavit to cast a ballot. In Kansas, the chief elections official, Secretary of State Kris Kobach, agreed last month to add nearly 20,000 properly registered voters to the state’s rolls only after being threatened with contempt of court.

 

And this month in North Carolina, plaintiffs complained to a judge that early-voting plans in five populous counties, including Charlotte’s Mecklenburg County, embraced some of the same discriminatory practices that federal courts had outlawed this summer. That came after two senior Republican Party officials advised local elections boards in emails to choose polling places and voting hours that inconvenience minorities and other Democratic-leaning constituencies.

 

To Barry Burden, who directs the Elections Research Center at the University of Wisconsin-Madison, such spats mirror a growing and worrisome use of election rules as tools to win elections, not run them fairly.

 

“When competition filters into making the rules themselves, it’s a recipe for disaster,” he said.

 

The courts’ effort to loosen voter ID laws “in practice so far has not fixed problems for voters facing special burdens to produce identification,” Richard L. Hasen, a University of California, Irvine, law professor and elections expert, wrote in The Wisconsin Law Review last month.

 

The Republicans who devised the laws call them both fair and necessary. In federal court, lawyers for Wisconsin have called its election rules “voter friendly” compared with those of many states, and said the court’s voter ID order was so lax that any excuse for lacking proper identification documents, including that “the DMV is haunted,” was sufficient.

 

But the crux of the Republicans’ argument is less whimsical: Tough election laws, they argue, are needed to keep Democrats from stealing elections.

 

“What I find is that leaders of the other party are against efforts to crack down on voter fraud,” Gov. Greg Abbott of Texas, a Republican, said in March. Numerous studies and surveys of voting show the opposite: Election fraud is rare, and the in-person fraud that the laws could prevent is virtually absent.

 

Wisconsin, too, has been hauled into court for failing to obey a judge’s order. On Oct. 7, after Judge James D. Peterson of U.S. District Court read articles in The Nation and The Milwaukee Journal-Sentinel documenting problems with the ID program, he summoned state officials to explain themselves.

 

The officials acknowledged flaws in the ID-issuing process and promised to fix them. But barely two weeks earlier, they had maintained in a report to the court that the ID process was running smoothly and that clerks in motor vehicle offices had been trained to deal with applicants.

 

That claim was belied when Molly McGrath, the national coordinator for the voting rights group VoteRiders, dispatched her mother to request help in getting an ID at 10 motor vehicle offices across the state. Few could navigate the application process. “They’re changing things so quick that it’s hard for us to keep up,” one clerk told her. Another, apparently unaware of the court’s order to issue IDs promptly, told her that “nothing’s guaranteed.”

 

Barbara Koester, 89, found herself unable even to register to vote after being erroneously told she first needed an ID, which required a certified birth certificate (it does not). “She was born in St. Louis, so I guess I could apply for a copy,” her daughter Ann Travers, who escorted her to the office, said in an interview. “But I don’t know how long that would take.”

 

After a hearing this month, a clearly nettled Peterson rewrote the rules for issuing IDs, ordering a broader effort to inform residents of the process and telling officials, among other things, to send voting credentials by overnight mail.

 

At the hearing, he said the state “really did nothing in response to my order.”

 

Collins eventually gained an ID after a second trip to the motor vehicle office. Travers has asked the Missouri authorities to mail her mother’s birth certificate. But election experts call them the exceptions that prove the rule: In many if not most cases, they say, potential voters give up after a single unsuccessful try.

 

Some do not try at all. Daniel Smith, an elections scholar at the University of Florida, compared the turnout of actual Florida voters in the 2008 and 2012 elections. Between those elections, Florida’s Legislature cut six days from the state’s 14-day early-voting period, including the final Sunday.

 

“It was very clear between ’08 and ’12 that people on the rolls who had voted on the final Sunday were disproportionately less likely to vote by any means in 2012,” he said, “but Latinos were especially less likely to vote. One in 4 Latinos who voted on the final Sunday in ’08 didn’t vote at all in ’12.”

 

Even minor adjustments had outsize effects. In a second study of actual voters in Manatee County, Florida, Smith calculated that from the 2012 election to the one in 2014, changes in polling-place locations reduced Latino turnout by 7 percentage points compared with Latinos whose polling places stayed put.

 

In Texas and Wisconsin, courts said laws requiring voter ID cards were biased against minorities, but ordered state officials to modify the laws instead of striking them down.

 

In Texas, the court told the state to let those without an approved ID vote after signing a sworn affidavit stating that they “cannot reasonably obtain” one. But in voter-education material, Texas omitted the word “reasonably,” suggesting that only people unable to get an ID by any means could take the oath.

 

Complicating matters, state legislators, the attorney general and the clerk of Harris County — with more than 4.5 million people, easily the state’s largest — then suggested that voters who misrepresent their ability to get an ID could be prosecuted for perjury.

 

In Wisconsin, judges left an ID requirement intact but ordered officials to allow residents without required documents like birth certificates to obtain an ID for voting. That requires a trip to a motor vehicle office — or two, as Collins and Koester can attest — by voters who often lack transportation and time off from work for the task.

 

Court documents state that 300,000 registered Wisconsin voters lack a photo ID that is required to vote. The state offers an alternative nondriver ID that is valid for voting to anyone with a Social Security number who can prove citizenship, residence and identity. Those without that proof, like Koester, can still get a credential valid only for voting by petitioning the state — the credential that Peterson ordered officials to provide speedily to anyone who asked.

 

But that process is little used. Since the credential was first offered in 2014, fewer than 1,700 voters have asked for such a card, state transportation officials say. In Texas, where an estimated 900,000 adult residents lack a required photo ID to vote, The Texas Observer reported in March that only 653 voters had followed a similar process to get voting credentials.

 

Those numbers may not grow much. Even after being admonished by federal judges, the two states seem hard-pressed to follow court orders.

 

On Monday, Molly E. Neck, a San Antonio lawyer, said she found a sign at her local polling place warning that voting required an ID card — the old requirement that was struck down this summer. When she asked to see the affidavit that allows voters to claim they cannot reasonably get an ID, she said, poll workers warned her three times that a false claim would result in perjury charges.

 

After she complained on Twitter, Texas officials told her they would remove the sign in her polling place. But she said friends told her similar signs were at other polling places.

 

“The wrong signs are everywhere,” Martin Golando, a San Antonio voting-rights lawyer, said in an email Monday night.

 

McGrath said Monday that she had asked about getting a voter ID at two motor-vehicle offices in Wisconsin and got two responses.

 

Only one was correct, she said.

 

To Learn More:

Courts Scramble to Rule on Challenges to Restrictive State Voting Laws before November Election (by Sarah Smith, ProPublica)

Racial Bias Seen in Proliferation of Republican-Led Voting Restrictions across U.S. (by Michael Wines, New York Times)

15 States Wielding New or Stricter Voter ID Laws in Run-Up to Presidential Election (by Michael Wines and Manny Fernandez, New York Times)

Minority Youth More Likely to be Asked for ID When Voting than Whites (by Noel Brinkerhoff, AllGov)

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