Election law

by Jeremy Leaming

North Carolina, which last year voted to amend its constitution to ban same-sex marriages even though it already had a law doing that, is now on the verge on enacting one of the nation’s more onerous voter ID laws. 

Late last week the N.C. House easily approved the so-called Voter Information Verification Act that would require people to present government-issued voter photo IDs before casting ballots. It is expected to pass the Senate and the State’s Republican Governor Pat McCrory has signaled he’ll sign it into law. Brentin Mock reporting for ColorLines noted that last week’s vote in the lower chamber drew throngs of N.C. university students to protest the new law.  The measure would make it arduous for the state’s colleges and university students to engage in democracy. And other measures being considered, as Mock reports, are also aimed at making voting burdensome, such as limiting early voting and prohibiting all early voting on Sundays.

The Brennan Center’s Lucy Zhou in an April 25 post about the ongoing state efforts to place more burdens on voting described N.C. as a “hotbed of restrictive voting bills” and listed the array of measures the state is moving to implement. Zhou notes that North Carolina lawmakers are striving to undercut the state constitutional rights of students to vote at their college addresses, by penalizing parents. If students register to vote under a different address, like their university address, parents will be barred from “listing their children as dependents on state tax forms ….”

State Rep. Thom Tillis (R-Mecklenburg) in a column for The Charlotte Observer called the photo ID bill “common-sense” and likened it to showing a photo ID to board an airplane. The problem with this type of argument is that it misses a fairly significant point. Voting is integral to democracy and indeed is protected in numerous places in the U.S. Constitution. But what about air travel and purchasing cocktails or even certain kinds of decongestants, which also require identification. Those actions may be vital to the pursuit of happiness, but not all are constitutionally protected rights, and certainly not as integral to democracy as voting.

Tillis claims “fringe elements have relied on heated rhetoric to frame this issue ….”

There is, however, nothing radical, over-the-top, or wild-eyed about noting the fact that North Carolina lawmakers are not able to point to any in-person voter fraud that has occurred in their state. Instead it is Tillis and his cohorts who are misinforming the public by claiming the integrity of the vote needs to be protected, while offering not a shred of evidence as to when that integrity was compromised.

by Spencer Overton, a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos.This piece is crossposted at The Huffington Post.

I attended yesterday’s U.S. Supreme Court oral argument in the Arizona voter registration case.  The argument went well generally, but Justice Alito suggested the Justices would create a “crazy” double standard by requiring that Arizona election officials accept the federal registration form. 

Alito’s concerns are unwarranted.  Arizona chose to create two standards when it chose to add special “proof of citizenship” to register. 

The National Voter Registration Act requires that all states “accept and use” a single, uniform voter registration form for federal elections (states can also still use their own registration forms). 

The Federal Form requires that prospective voters check a box and sign an affirmation that they are U.S. citizens under penalty of perjury. 

Arizona, however, adopted a state law requiring “satisfactory proof” of U.S. citizenship to register, such as a birth certificate, U.S. passport, or state driver’s license that shows citizenship. As a result, Arizona rejected over 31,000 registrations that lacked its “proof of citizenship” -- including Federal Forms -- even though Arizona concedes it has no evidence that any of these individuals were non-citizens.

My take is that Arizona must accept all Federal Forms that comply with the citizenship affirmation rules set by Congress. The federal Act was designed to expand participation in federal elections by streamlining the registration process with a simple, uniform Federal Form that prevents states from piling on additional hurdles to register.  Indeed, as Justice Sotomayor mentioned, Congress explicitly rejected an amendment that would have allowed states to require “documentary evidence” of U.S. citizenship.