Federal Courts Strike Down Voter ID Laws In Wisconsin, North Carolina
Big losses for proponents of Voter ID laws in two swing states.
Federal Judges in two separate cases have struck down Voter ID laws in North Carolina and Wisconsin on the ground that the law impermissibly discriminates against African-American voters:
A federal appeals court decisively struck down North Carolina’s voter identification law on Friday, saying its provisions deliberately “target African-Americans with almost surgical precision” in an effort to depress black turnout at the polls
The sweeping 83-page decision by a panel of the United States Court of Appeals for the Fourth Circuit upended voting procedures in a battleground state about three months before Election Day. That ruling and a second wide-ranging decision on Friday, in Wisconsin, continued a string of recent court opinions against restrictive voting laws that critics say were created solely to keep minority and other traditionally Democratic voters away from the polls.
The North Carolina ruling tossed out the state’s requirement that voters present photo identification at the polls and restored voters’ ability to register on Election Day, to register before reaching the 18-year-old voting age, and to cast early ballots, provisions the law had fully or partly eliminated.
The court also held that the ballots of people who had mistakenly voted at the wrong polling stations should be deemed valid.
In the Wisconsin decision, Judge James D. Peterson of Federal District Court ruled that parts of Wisconsin’s 2011 voter ID law are unconstitutional. He ordered the state to make photo IDs more easily available to voters and to broaden the range of student IDs that are accepted at the ballot box.
The decision also threw out other rules that lengthened the residency requirement for newly registered voters, banned distributing absentee ballots by fax or email and sharply restricted the locations and times at which municipal voters, many of them Milwaukee blacks, could cast absentee ballots in person.
Judge Peterson’s sharply worded 119-page ruling suggested that Wisconsin’s voter restrictions, as well as voter ID restrictions in Indiana that have been upheld in the Supreme Court, exist only to suppress votes.
“The evidence in this case casts doubt on the notion that voter ID laws foster integrity and confidence,” he wrote. “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement which undermine rather than enhance confidence in elections.”
The court decisions — the third and fourth federal rulings in recent weeks against Republican-enacted voting restrictions — were made as the two political parties raced from their summer conventions into the critical final months of the campaign, with Wisconsin, like North Carolina, considered a contested state.
North Carolina’s Republican-controlled legislature rewrote the state’s voting rules in 2013 shortly after the Supreme Court struck down a section of the Voting Rights Act of 1965 that had given the Justice Department the power to oversee changes in election procedures in areas with a history of racial discrimination. Forty of the state’s 100 counties had been subject to oversight.
Civil rights advocates and the Justice Department had sued to block the law, but a Federal District Court judge upheld it in April, writing that the state’s “significant, shameful past discrimination” had largely abated in the last 25 years.
On Friday, the three-judge panel emphatically disagreed, saying the lower court’s amply documented ruling had failed to consider “the inextricable link between race and politics in North Carolina.”
The judges noted that Republican leaders had drafted their restrictions on voting only after receiving data indicating that African-Americans would be the voters most significantly affected by them.
“We cannot ignore the record evidence that, because of race, the legislature enacted one of the largest restrictions of the franchise in modern North Carolina history,” they wrote. “The court seems to have missed the forest in carefully surveying the many trees,” they stated. The panel stopped short of reimposing federal oversight on the state’s elections, saying that striking down the law was enough.
Voting rights advocates called the ruling, which Republicans say they will appeal, a resounding victory. Fresh from speaking Thursday night at the Democratic National Convention, the Rev. William J. Barber II, the president of the North Carolina branch of the N.A.A.C.P., which is a plaintiff in the lawsuit, called the decision “a moral and constitutional vindication of our constitutional critique of this extremist legislature and our extremist governor.
“A political majority doesn’t give you the power to run roughshod over the Constitution,” he said.
Attorney General Loretta E. Lynch, who was in Baton Rouge, La., on Friday, also welcomed the decision, saying the law “sent a message that contradicted some of the most basic principles of our democracy.
“The ability of Americans to have a voice in the direction of their country — to have a fair and free opportunity to help write the story of this nation — is fundamental to who we are,” she said.
More from The Washington Post:
Voting rights activists scored legal victories in key presidential election states Friday, the most important being a federal appeals court ruling that North Carolina’s Republican-led legislature enacted new voting restrictions in 2013 to intentionally blunt the growing clout of African American voters.
The unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit was an overwhelming victory for the Justice Department and civil rights groups. Election law experts consider North Carolina’s voter law one of the nation’s most far-reaching.
In Wisconsin, where one federal judge already had eased restrictions on voter-ID requirements, a second judge found that additional elements of the law passed by the legislature and signed by Gov. Scott Walker (R-Wis.) were unconstitutional.
U.S. District Judge James D. Peterson suggested he would strike the entire law if he were not bound by the Supreme Court’s decision that states may use properly written voter-ID laws to guard against voter fraud.
“The evidence in this case casts doubt on the notion that voter ID laws foster integrity and confidence,” Peterson wrote. “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities. To put it bluntly, Wisconsin’s strict version of voter ID law is a cure worse than the disease.” The state will appeal both rulings.
In the North Carolina case, the 4th Circuit panel agreed with allegations that North Carolina’s omnibus bill selectively chose voter-ID requirements, reduced the number of early-voting days and changed registration procedures in ways meant to harm blacks, who overwhelmingly vote for the Democratic Party.
“The new provisions target African Americans with almost surgical precision” and “impose cures for problems that did not exist,” Judge Diana Gribbon Motz wrote for the panel. “Thus the asserted justifications cannot and do not conceal the State’s true motivation.”
The rulings — along with that of a state court that halted an attempt in Kansas to require proof of citizenship to register — marked important wins for opponents of restrictive voting laws that are being challenged throughout the country ahead of November’s presidential election. Put together, the decisions suggest a growing judicial suspicion of the wave of voting-restriction legislation passed in recent years by Republican-led legislatures that said it was necessary to combat voter fraud.
The decisions are likely to prompt the states to ask the Supreme Court for emergency action. But it is far from clear whether the eight justices, evenly divided between conservative and liberal, would get involved. The proximity of an election is often reason for justices to let an appeals court ruling stand.
Federal courts have been examining what are popular and, to some, seemingly common-sense laws — requiring photo ID, for instance — to see whether they favor one group over another.
In North Carolina, for instance, the judges at oral arguments noted that government-issued driver’s licenses are an acceptable form of identification but that government-issued public assistance cards — used disproportionately by minorities in the state — are not.
Republican leaders in North Carolina vowed an appeal to the high court. They issued a fiery statement denouncing the ruling “by three partisan Democrats” and suggested it was intended to help the Democratic candidates for president and governor.
North Carolina is considered a key swing state, and African American voters have played an increasing role in making it competitive.
“We can only wonder if the intent is to reopen the door for voter fraud, potentially allowing fellow Democrat politicians like Hillary Clinton and Roy Cooper to steal the election,” said Senate Leader Phil Berger and House Speaker Tim Moore.
Election law expert and law professor Rick Hasen has posted detailed analysis of both the Wisconsin and North Carolina decisions which I recommend to the attention of anyone interested in the details of what the Courts decided in those case, but both analyses are far too detailed to fairly summarize here. In essence, though, the decisions share a similarity in that they find that the discriminatory impact of the laws in question makes them unacceptable under the law, although the Wisconsin decision differs in that it picks apart various provisions of the Voter ID Law in particular that he deems to have a discriminatory impact on minorities. In the North Carolina case, though, the Court essentially found a racially discriminatory intent behind the entire law as passed, a ruling which has the impact of voiding the entire law going forward and placing voting procedures in the upcoming General Election into doubt since it will not be long before the states much begin mailing out absentee ballots, including military ballots, which are a huge issue in North Carolina due to the significant number of military basis in the state.
Given the fact that there is little evidence of the kind of in-person voter fraud that Voter ID laws are supposedly intended to combat, it’s not hard to see why the adoption of a strong Voter ID Law would raise concerns among Federal Judges. Notwithstanding that fact, though, it’s always somewhat problematic when Judges infer intent based on impact, because there is always the possibility that the law in question was motivated by other concerns not banned by Federal Law or the Constitution. Advocates for Voter ID Laws, for example, will claim that the laws are necessary to protect the integrity of the ballot, and this is assuredly a proper function of state authorities. In fact, in the abstract, there really isn’t any legitimate argument against the idea that people should be required to prove who they are before they are permitted to vote. The problem comes when you start talking about how that idea is implemented, and when it does in fact have a disproportionate impact on minorities. In those cases, the proper response of the state ought to be to reform the law to make it easier for these groups to get the paperwork necessary to participate in the electoral system, but that seldom comes to pass. The reality, though, is that the real motivation for the passage of these laws in the modern era has little to do with discriminating based on race or ethnicity and everything to do with changing the laws in ways that benefit one political party or the other in future elections, and the reason it has a disproportionate impact on minorities is because these laws are being proposed by Republicans and those groups are more likely to vote Democratic. Racial and ethnic discrimination, arguably, isn’t a primary motivation for these laws, then, but a secondary impact. Since there are no laws forbidding reforms of voting laws that benefit one party or the other, legislatures arguably ought to have more leeway than the Courts are currently giving them.
These decisions out of Wisconsin and North Carolina come on the heels of a ruling from the Fifth Circuit Court of Appeals striking down Texas’ Voter ID Law because it violated the Voting Rights Act in that it unduly discriminated against minority groups. As I noted at the time, this ruling was somewhat of a surprise largely due to the fact that the Fifth Circuit is still dominated by Republican appointed Judges and has been relatively accepting of Voter ID Laws in the past. The decisions in Wisconsin and North Carolina are somewhat less surprising in that the Fourth Circuit, which covers North Carolina, and the Judges in the U.S. District Courts in Wisconsin have been significantly more skeptical of these laws and the rationales provided by legislatures in the past in response to accusations that the laws disproportionately impact poor and minority voters due either to the forms of identification that are considered acceptable to satisfy the requirements of the law or the extent to which it makes it more difficult for such people to obtain such identification in the first place. The Federal District Court Judges in Wisconsin in particular have been particularly critical of Wisconsin’s voter reforms to the point where many of their decisions have been overturned by the Seventh Circuit Court of Appeals.
Both of these cases appear headed for appeal. In the case of the Wisconsin law, that means heading to a panel of the Seventh Circuit Court of Appeals, which has been skeptical of the rulings coming from their fellow Federal Judges in Wisconsin on this issue in the past and has reversed those decisions on several occasions. In the Fourth Circuit case, North Carolina appears to be headed toward appealing the ruling, but it’s unclear if that will mean an appeal for an en banc appeal to the full Fourth Circuit or an petition for review to the Supreme Court, which wouldn’t rule on whether or not to accept the case for appeal until some time in October at the earliest. At the same time, in both cases, a decision will also have to be made about whether or not to seek a stay of the respective rulings until after the election. In the past, decisions such as this so close to Election Day have been stayed based largely on the argument that the election apparatus of the state has already been set up to operate under the new law and requiring it to change practices on short notice would be disruptive to the election process. Given that both states could be swing states in the fall, rulings on stay requests could have a real impact on the election going forward..
Here’s the opinion in the North Carolina case:
And here’s the opinion in the Wisconsin case: