Today, there are 32 states in the US that require voters to present identification at the polls in order to vote, including 17 states that have passed laws requiring a photo ID.
Voter ID laws have become increasingly controversial as the 2012 presidential election approaches, precipitating legal challenges in several states. In September 2012, the Pennsylvania Supreme Court heard oral arguments to determine the constitutionality of Pennsylvania’s voter ID law. The Pennsylvania law requires all voters to present a state or federal government-issued photo ID when they vote. Those who do not have a valid photo ID can cast a provisional ballot, which will be counted provided that they furnish a valid photo ID within six days.
The American Civil Liberties Union (ACLU) challenged the lower court’s ruling allowing the law to stand. The ACLU, along with 10 citizen plaintiffs, brought the case against Pennsylvania Governor Tom Corbett, who signed the voter ID bill into law in March 2012. On October 2, 2012, the Pennsylvania Commonwealth Court issued a preliminary injunction preventing the law from taking effect for the 2012 presidential election. Although the injunction was to remain in effect only through November 2012, and the Pennsylvania Supreme Court later vacated the decision, thus upholding the voter identification law. In February 2013, lawyers for the ACLU convinced state officials to suspend enforcement of the voter identification law until after the 2013 primary elections.
This controversy has not been isolated to Pennsylvania during the last year.
In August 2012, a three-judge panel in the US District Court for the District of Columbia unanimously rejected a similar Texas law requiring voters to present photo ID to election officials before casting their ballots. In striking down the law as unconstitutional, the judges concluded that the law is “the most stringent [of the photo ID laws] in the country” and would “almost certainly have a retrogressive effect,” namely “strict, unforgiving burdens on the poor.” The Texas judges found that the retrogressive effect within this law necessarily invalidated it under Section 5 of the VRA.
The Center for American Progress (CAP) released a report in April 2012 criticizing the tide of recently-passed state voter ID laws as an attempt by conservatives and lobbyists to “return to past practices of voter suppression to preserve their political power.” The report details new restrictions on registration in six states and laws in nine states that require voters to show a government-issued photo ID, concluding that these measures are motivated by a desire to prevent the more than 21 million voters who do not have these IDs from participating in elections.
Prior to that, in March 2012, a Wisconsin judge ruled the state’s voter ID law requiring a voter to display photo ID when entering a polling place unconstitutional. The court issued a temporary injunction barring the law from taking effect, and the Wisconsin Supreme Court refused to consider appeals, leaving the matter to the Wisconsin Court of Appeal, which found the law unconstitutional in May 2013.
The ACLU, the ACLU of Wisconsin and the National Law Center on Homelessness & Poverty National Law Center on Homelessness & Poverty also filed a federal lawsuit seeking to invalidate the Wisconsin law, as did the Advancement Project in February 2012.
In February 2012, South Carolina Attorney General Alan Wilson filed suit against the DOJ over its ruling that barred South Carolina from enforcing its voter ID law. The South Carolina law, nominally enacted to prevent voter fraud, would have required residents to present a current government-issued ID to cast a ballot. However, Assistant US Attorney General Thomas Perez stated that the voter ID requirement resulted in significant racial disparities and that South Carolina had not met its burden to show that these disparities would not have a discriminatory effect. The US District Court for the District of Columbia allowed the law to take effect starting in 2013.
In August 2011, the South Carolina Senate Minority Caucus filed an objection with the DOJ, asking for rejection of the new voter ID law. They argued that the new law is too restrictive because it requires voters to have both a valid and current identification, which would exclude persons whose licenses are revoked or suspended. This objection followed a previous attempt by several South Carolina civil rights groups, including the ACLU and the League of Women Voters of South Carolina, who argued in their letter to the DOJ that the new voter ID law would have a discriminatory effect. A three-judge panel of the US District Court for the District of Columbia, after finding that the South Carolina voter ID law does not discriminate against racial minorities, ruled [PDF] that the law would be allowed to go into effect in 2013. In November 2011, Mississippi voters approved a ballot measure to implement a voter ID law.
Debate over these laws has sparked controversy leading up to presidential and congressional elections in November 2012 and beyond, with mixed results. The Georgia courts upheld a voter ID law requiring voters to present one of six possible forms of identification in March 2011 and Virginia Governor Bob McDonnell signed a similar bill into law in May 2012. The Virginia General Assembly took further action in February 2013 when it passed two bills, S.B. 719 and H.B. 1337, which further limited acceptable forms of identification at the polls. On March 25, 2013, Virginia’s governor signed the bills into law.
On March 19, 2013, the Arkansas legislature approved a bill that required voters to show identification prior to voting. The new law would allow any registered voters to obtain photo identification at no cost if they did not have alternative identification. Arkansas Governor Mike Beebe vetoed this bill six days later, saying that it would create unnecessary costs and bureaucracy and potentially disenfranchise voters. The contention between the governor and the legislature in Arkansas ended on April 1, 2013, when the Arkansas House of Representatives joined the Arkansas Senate in overriding the governor’s veto and instituting the new law. The law is set to go into effect January 1, 2014.
Similar legislative provisions have either been vetoed by executive authorities, Circuit overturned by federal appellate courts or preemptively challenged by civil rights groups.
In the midst of this legal turmoil, the Brennan Center for Justice released a report in July 2012 detailing the burden on Americans who need to obtain government-issued photo ID in order to comply with restrictive state voter ID laws. This report, “The Challenge of Obtaining Voter Identification,” was the first comprehensive assessment of the difficulties that eligible voters face in obtaining free photo ID in order to vote.
According to the report, the 11 percent of eligible voters who lack the required photo ID must travel to a designated government office to obtain one, and vote restrictive states are legally required to provide a photo ID free of charge. However, in those states, more than 10 million eligible voters live more than 10 miles from their nearest ID-issuing office that is open more than two days a week. Of those 10 million eligible voters, more than one million fall below the federal poverty line and almost 500,000 of those eligible voters do not have access to a vehicle. In addition, the report documented the idiosyncratic hours of certain ID-issuing offices, making it difficult for eligible voters to obtain a state ID. Ten states — Alabama, Georgia, Indiana, Kansas, Mississippi, Pennsylvania, South Carolina, Tennessee, Texas and Wisconsin — now carry the most restrictive “no photo, no vote” type of voter ID law. In order for their laws to take effect, Mississippi, South Carolina and Texas must receive VRA Section 5 preclearance from the DOJ.
Voter ID laws, like the ones discussed above, are not recent phenomena. In May 2005, the National Conference of State Legislatures — a body which tracks state law developments — found that 26 states had considered new proposals for voting laws. The most important issue under review in many states was proof of identity for valid voters. This issue raised two general competing viewpoints: that more restrictions and regulations were needed to counter fraud and another that the voting process should be easier and opened up to more people.
In April 2008, the US Supreme Court upheld an Indiana voter identification statute requiring voters to present photo identification as a prerequisite to voting. The court concluded that, despite arguments that the legislation makes it difficult for minorities, the elderly and the impoverished to participate in elections, the law does not put an undue burden on the right to vote and therefore does not violate the US Constitution.
Prior to that, in August 2007, a federal judge upheld Arizona’s voter ID law — Proposition 200 — requiring voters to provide photo identification before voting. The ruling followed an October 2006 US Supreme Court decision that allowed Arizona to enforce the identification law during the 2006 midterm elections. On March 18, 2013, the US Supreme Court heard oral arguments to consider the legality of Proposition 200’s requirement that voters show “proof of citizenship” in addition to photo ID. In June 2013, the Court struck down the proof of citizenship requirement as preempted [PDF] by federal law.
In July 2006, Georgia’s earlier attempt to implement photo identification cards for voters was challenged by the ACLU and other voting rights advocates, who filed a motion in federal district court seeking a preliminary injunction, arguing that the bill authorizing the cards violates the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of 1964, and that it constituted a poll tax in violation of the Twenty-Fourth Amendment. Unlike the original law, SB 84 would have provided free voter ID cards. However, the statute was challenged for imposing burdens on Georgia citizens without increasing protections against voter fraud. The motion read, in part:
The 2006 Act imposes a severe burden on the poor, the elderly, the infirm, and the less literate who either cannot afford a car, or are no longer able to drive, and who are, therefore, the least mobile of our citizens and least able to make a special trip to the county registrar’s office to obtain a “Georgia identification card” or to navigate the requirements of voting absentee.
In April 2006, the DOJ approved the new Georgia law, as required by the VRA, certifying that the DOJ does not find that the law has a racially discriminatory purpose or that minority voters would be worse off.
Related legal action concerning voter fraud has been taken in Florida, where a judge for the US District Court for the Southern District of Florida ruled [PDF] that the state may continue purging its voter rolls of suspected non-citizens, despite opponents’ outcry and invocation of the VRA.
Voter ID laws have fluctuated over the past decade, with variation among states ranging from no ID requirement to strict standards. In 2014, a study by the US Government Accountability Office showed that more stringent ID laws in certain states resulted in a decline among both younger and black voters. Courts’ responses to Voter ID challenges have been mixed. In 2014, the US Supreme Court permitted enforcement in the upcoming election of a very strict Texas law, which required voters to present one of a limited number of photo-IDs. The same year, the Court blocked enforcement of a Wisconsin ID law pending appeal. Also in 2014, the Arkansas Supreme Court struck down a law that would have added a photo requirement to the state’s ID law.
In May 2016, the US District Court for the Eastern District of Virginia upheld the state’s voter ID law, calling it “inconvenient” but not discriminatory. In August 2016, an Oklahoma judge similarly upheld a law that required voters to present photo-ID.
Also in 2016, Federal Courts rejected voter ID laws in North Carolina, North Dakota and Kansas, where the ACLU challenged a requirement that voters provide proof of citizenship to register to vote. In a 2016 lawsuit brought by the ACLU challenging Wisconsin’s voter law, the US Court of Appeals for the Seventh Circuit denied a petition for rehearing en banc after a lower court held that voters without ID could vote using an affidavit process.