Weeks Before Election Day, Voter ID Trials Enter Uncharted Legal Territory


Major court hearings this week in Texas and Wisconsin took on the thorny issue of voter ID laws, with civil rights groups arguing the laws could disenfranchise hundreds of thousands of eligible voters this November. These controversial laws are just two of many still being litigated in court with the election just weeks away. Voter ID laws in North Carolina and Arkansas are also set go to trial before the end of September.

Civil rights and civil liberties groups this week presented a number of examples of citizens who would be unable vote if the laws are allowed to go forward.

Among the Texas plaintiffs is Imani Clark, a 22-year-old student at the historically black university Prairie View A&M. The state’s voter ID law does not accept student IDs as valid proof of identity at the polls, and as a student without a car in rural Texas, Clark has not been able to make the multiple trips necessary to obtain another form of ID. Just seven types of ID are accepted under the law, including concealed handgun licenses and military IDs. Social Security cards are also excluded.

Another Texas plaintiff is 76-year-old Elizabeth Gholar. Born at home in Louisiana in 1930s, she was issued a birth certificate with inaccurate and missing information. “She has voted for decades, and now for the first time in her life will not be able to,” said attorney Natasha Korgaonkar of the NAACP Legal Defense Fund. “At that time, many African American mothers didn’t have access to a hospital and could not get proper birth certificates. So Gholar’s voting situation now is deeply linked to a history of structural racism.”

Over the two week-long hearing in Corpus Christi, the organizations also brought in experts to counter claims made by the state that any Texan could obtain a free Election Identification Certificate. Texas lawyer Kevin Jewell told the court this week that in order to get such an ID, the plaintiffs would need to present several “underlying documents” they currently lack, including a birth certificate, which can cost up to $47 dollars. He said the plaintiffs would have to pay even more to make multiple trips to government offices to get the necessary papers.

“These costs are out-of-pocket and real,” he told the court. “The budgets these individuals have are constrained. That means they have to make a choice that many Texans don’t have to. They have to choose between using their money to buy an ID or something else that may be important to them.”

Because of these costs, Attorney General Eric Holder and others have compared voter ID laws to the poll taxes common under Jim Crow.

Officials in Texas argued before the court this week that the law was necessary to prevent voter fraud. But the expert they called in, Professor M.V. Hood III, admitted under cross-examination that he was not aware of a single case of in-person voter impersonation voter fraud.

A witness for the groups challenging the law, Dr. Lorraine Minnite from Rutgers University, testified that her research found just four credible claims of voter fraud in Texas between 2000 and 2014, out of millions of ballots cast during that time.

Like their Texas counterparts, the administration of Wisconsin’s Republican governor, Scott Walker, is defending the law as a deterrent to voter fraud. But many experts, including Loyola Law Professor Justin Levitt, say not only is voter fraud extremely rare, voter ID laws can’t even prevent the most common kinds of fraud.

“Most elections are run cleanly and that’s worth remembering,” he told ThinkProgress. “But in-person voter impersonation is vanishingly rare, because it’s a really stupid way to steal elections. Plenty more prevalent are more efficient ways to steal an election like absentee fraud, because you can get a bunch of ballots together and cast them all at once. There are occasionally problems with plain old fashioned ballot box stuffing by an insider or election official and vote buying, which mainly happens in local elections.”

Levitt recently released a study finding only 31 credible examples of voter impersonation out of more than a billion votes cast over the past 14 years. Because voter ID laws don’t tackle the most common forms of fraud, Levitt called the laws “security theater,” noting, “Every single state already requires voters to prove they are who they say they are. The fight is really about whether you can block someone who doesn’t have a specific government issued card.”

Closing arguments in the Texas case are scheduled for September 22, and a ruling on Wisconsin’s law could come as soon as next week. With courts across the country divided on these cases, many speculate that the issue will soon reach the Supreme Court.

Korgaonkar with the NAACP Legal Defense Fund said the cases are a clear demonstration of the harm done by last year’s Supreme Court ruling striking down a key section of the Voting Rights Act.

Without the protections in Section 5 of the Act, advocates in Texas and other states have had to rely on Section 2, which puts the burden on the voters themselves to prove they are harmed by a particular law.

“Section 2 litigations are long, complicated and expensive,” Korgaonkar said. “They allow bad laws to go into effect before they can be blocked. But we are prepared to meet those challenges. In this case, there was a Section 2 [Voting Rights Act] violation and a constitutional violation.”

Myrna Perez at the Brennan Center for Justice, one of the lawyers challenging voter ID in Texas, said because Congress has stalled on passing a new version of the Voting Rights Act, the nation is currently in uncharted legal territory.

“There isn’t developed law on how Section 2 and the Constitution function in a world without Section 5,” Perez told ThinkProgress. “It’s a lawmaking moment that raises questions about how state legislatures are allowed to put up barriers to the ballot box. These laws are going to make it much harder for eligible people to vote, and outright deny the franchise to some, but I believe that our fundamental right to vote is sacred and ultimately will be upheld.”