Voter ID

  • August 1, 2014
    Guest Post

    by Joshua A. DouglasRobert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    *This post was originally published in the Milwaukee Journal Sentinel

    The Wisconsin Supreme Court on Thursday issued two decisions that had the effect of upholding the state's strict voter ID requirement. Crucial to the court's decisions was its finding that, once it modified a different rule, the voter ID law did not impose too substantial of a burden on qualified voters who do not otherwise have the necessary identification.

    The split decisions entail both breathtaking judicial activism and ignorance regarding the difference between the federal and state constitutions.

    First, the conservative-leaning majority found that the voter ID law imposed a severe burden on voters because it would cost money for voters to gather the underlying documentation they might need — such as a birth certificate — to obtain the "free" voter ID. But the majority then forges ahead to adopt a "saving construction" of a state administrative rule to conclude that the law does not, really, require voters to pay money to obtain the documentation. It rewrites the administrative rule so that the voter ID law does not become an unconstitutional poll tax.

    To justify this maneuver, the court cites a U.S. Supreme Court decision that states "where a saving construction is 'fairly possible,' the court will adopt it." But that U.S. Supreme Court case said no such thing; it instead noted that if a saving construction of the very statute at issue is possible, then the court should avoid the constitutional question and decide the case under that statutory ground.

    Here, by contrast, there was no "fairly possible" construction of the voter ID law. Instead, the court requires state administrators to invoke their "discretion" under a separate administrative regulation — one that was not at issue in the case — to give voter IDs to voters who must pay money to obtain the underlying documentation.

    Second, the court conflated the U.S. and Wisconsin constitutions to uphold the law. The plaintiffs challenged the law under the Wisconsin constitution provision that provides, "Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district." The plaintiff's argument, in essence, was that the burdens associated with obtaining the required voter ID took away the constitutionally granted right to vote for some citizens.

  • December 12, 2012

    by Jeremy Leaming

    In a robust defense of the Voting Rights Act of 1965, U.S. Attorney General Eric Holder blasted the claim that the law’s integral enforcement provision is outdated and said it was time the nation updated the way voters are registered.

    Speaking at the John F. Kennedy Presidential Library, Holder said, “President Kennedy recognized that no force in our history has been more powerful than the continued expansion of what’s been called the lifeblood of our representative democracy, the cornerstone of our system of government, and the ‘most basic’ right of American citizenship: the right to vote.”

    That basic right has been under attack on several fronts. First Sec. 5 of the Voting Rights Act continues to be challenged as unconstitutional by some lawmakers in the South who argue that discrimination against minorities is a thing of the past and therefore they should not be required to get federal preclearance for changes to their voting procedures. The Supreme Court will review a challenge to Sec. 5 brought by Shelby County, Ala. officials who are seeking the demise of Sec. 5.

    Sec. 5 of the Voting Rights Act, has, Holder noted, enjoyed “broad, bipartisan support – including, most recently, in 2006, when an overwhelming congressional majority joined with President Bush to reauthorize its protections. It’s also been upheld as constitution in each of the eight court challenges that the law’s opponents filed between 1965 and 2010 – during the first 45 years after it took effect. Over the last two years alone, however, we’ve seen at least 10 lawsuits – more than in the first four decades of the statute’s existence – arguing that Section 5 is no longer constitutional, and that our nation has moved far beyond the challenges that prompted both its passage and its recent renewal.”

  • August 6, 2012

    by Nicole Flatow

    On the 47th anniversary of the Voting Rights Act of 1965, the law that ushered in a period of dramatic expansion in our democracy is facing both direct and symbolic threats.

    With five challenges to the law’s central provision filed just this year, the U.S. Supreme Court is expected to take up the constitutionality of Section 5, which requires jurisdictions with a discriminatory history to obtain federal approval of any election law changes. Chief Justice John Roberts punted on the question in a 2009 case.

    Ironically, this Section has become more crucial than ever as the U.S. Department of Justice relies upon the law to challenge some of the harsh new voting restrictions in states subject to preclearance like Texas, South Carolina and Florida.

    But even in states that are not subject to the Voting Rights Act and have imposed laws to limit voter registration, to require photo IDs, and to limit early voting, this year marks a step backwards from the VRA’s historic expansion of the right to vote.

    During a panel at the American Constitution Society 2012 National Convention, the Brennan Center for Justice’s Nicole Austin-Hillery remarked that this “this is really the first time” since the passage of that 1965 law that the “we have been in a country that is actually going backwards,” in which states are introducing laws “that have the effect of making it harder for people to register to vote, of making it harder for people to actually go and cast a vote.”

    “This is a key shift in terms of our country and how we are dealing with our citizenry,” said Austin-Hillery.

  • June 22, 2012
    Guest Post

    By Dara Lindenbaum, Associate Counsel for the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law


    The recent gubernatorial recall election in Wisconsin provides a disturbing example of what too many voters in an array of states are likely to face at the polls in November. At the polls, voters were confused about whether they could vote under the new laws, faced under-resourced polling locations, and received deceptive information about whether they could vote.

    As always, the Election Protection Coalition was available to assist voters. The coalition, led by the Lawyers’ Committee for Civil Rights Under Law, is the nation’s largest non-partisan voter protection coalition. Throughout the day, trained volunteers answered the 1-866-OUR-VOTE hotline and monitored polling locations across Wisconsin. The hotline received 1,526 calls on Election Day in addition to the 524 received in the preceding, resulting in over 2,000 calls into the Hotline. 

    We thought that most of the calls into the Hotline would be surrounding the law requiring voters to present government-issued photo ID, which was passed in 2011. The law was not in effect on Election Day due to two separate court injunctions, and although there were instances of poll workers improperly asking voters to present photo ID before voting, the majority of the calls were due to recent changes to the law surrounding the requirements to establish residency in the state of Wisconsin. The new law expanded the amount of time to establish residency from 10 to 28 days and repealed a safeguard that allowed a voter who lacked proof of residency to vote if another voter affirmed their residency. Most disturbing was the fact that these new laws were implemented without an effective voter education campaign to alert voters to the changes to their longstanding and long relied-upon Election Day Registration (EDR) procedures.