In recent years, the Supreme Court has had its version of an “election rule.” The essence of this rule is that the Supreme Court does not like last second changes to the election process. Regardless of whether the change comes from state election authorities changing the state’s procedure or a court decision resolving a challenge to those procedures, the Supreme Court prefers to “freeze” the status quo far enough in advance of the election so that voters know the rules and can take steps to comply with those rules. Perhaps in response to this implied vague deadline (a little less implied in the case of Texas where the Supreme Court indicated that they would consider intervening in there was not a court decision by the end of July), the last several weeks of have seen court decisions in multiple cases involving multiple states seeking to impose a requirement that voters present photographic ID to vote in-person.
Since mid-July, there have been five decision involving four separate states — two from Wisconsin (Frank and One Wisconsin) and one each from North Carolina, North Dakota, and Texas. The reasoning in each of these cases turns on the unique features of each state’s laws and its provisions for making it “easy” for voters to get photographic IDs, but there are some things that flow through all of these decisions.
First, in-person voter fraud (i.e. person voting multiple times with false identities) is practically non-existent. Most of these states, even before passing these bills, had several protections against such fraud. (To even register, a person needs to give a usable address. If a person gives a non-existent address, the false address will not show up on the local map making it impossible to assign the voter to a precinct. Most states then mail a registration card to that address; so, if the voter does not really live at that address, it will likely get returned causing the election authority to investigate further. If the voter uses the same address for multiple registrations (with different names), that voter will have to go to the same place to vote — increasing likelihood that somebody will see the same person coming into the precinct multiple times over the course of the day. As a result, it is most likely that somebody intentionally registering multiple times would vote absentee, and a photo ID requirement does not solve that problem.)
Second, in most of these states, opponents of the new requirements proposed changes to make it easier for voters to get IDs and to vote or the legislature deleted provisions found in the Indiana law that the Supreme Court approved in 2008.
Third, the provisions in these laws that supposedly make it easy to get a non-driver’s photo ID do not work and leaves large segments of the population — disproportionately members of minority communities — without the documents required to vote even though they are legally eligible to vote.
Fourth, these cases involve both Equal Protection challenges and challenges under Section 2 of the Voting Rights Act. While only two of these cases come from states that used to be subject to pre-clearance under Section 5 of the Voting Rights Act, all of them demonstrate a key problem caused by the loss of pre-clearance — the time that it takes to successfully challenge a law after it takes effect. These cases involve statutes that were enacted in 2011 and 2013. Showing that the “safety-valve” provisions of these acts are inadequate requires seeing what happens once the law is in effect and showing the problems that individual voters have in complying with these provisions. Significant for the prospects of re-imposing pre-clearance (under the still valid opt-in provision of the Voting Rights Act), the decision on the Texas law left open the possibility that it was enacted with discriminatory intent and the decision on the North Carolina law found that it was enacted with discriminatory intent. In North Carolina, the true intent of the legislature was revealed by the legislature specifically seeking race-based data on the use of various forms of alternative ID and only barring those used mainly by African-American voters (along with banning other voting practices that were mostly used by minority voters).
For now, the efforts of Republicans over the past four years to enact even more restrictive voting laws appears to have temporarily failed. However, this election is key. There are two very bad voting rights decisions from the Roberts Court — the first (as noted above) allowing photo ID laws in the first place and the second eliminating the pre-clearance requirement of Section 5 of the Voting Rights Act. Both decisions along with cases like Citizen United would result in a 4-4 split if heard by the Supreme Court today. If Donald Trump wins in November and can replace Justice Scalia and Justice Kennedy with two new justices who make Justice Thomas look moderate, these new laws will probably go into effect. If Hillary Clinton wins in November and can replace Justice Scalia, Justice Breyer, and Justice Ginsburg with justices who understand the law and the problems of voter suppression and money in politics, then not only will these current laws not go into effect, but the Supreme Court could potentially overturn a decade’s worth of conservative judicial activism designed to protect those who think the problem with democracy is that too many people vote and it is too difficult to buy elections.