Above Photo: Sarah Smith and Al Shaw/ProPublica, Source: Brennan Center
Courts are scrambling to rule on state election laws in time for the elections being held later this year. We’re keeping track of their decisions.
We’re keeping this post up to date. It was originally published Aug. 12, 2016.
“All the sides were pushing for opinions over the summer so that nobody would run into the concern that it was all of a sudden too late to shift what the state had been planning to do,” said Jennifer Clark, counsel for the Brennan Center’s Democracy Program.
We’re tracking the new laws and the suits against them in the run-up to Election Day. We’ll keep this updated as decisions roll in.
Alabama
Updated Sept. 12.
Status: Litigation pending. Preliminary injunction issued. New voting law will be in place on Election Day.
While a federal judge declined to issue a preliminary injunction against Alabama’s photo-ID law in February, a case against the law will go forward, with a trial expected in 2017. Alabama election law also requires proof of citizenship, a statute upheld in late June (the D.C. Circuit court of appeals will hear arguments in September).
A three-judge appeals court panel blocked Alabama’s proof-of-citizenship requirement on Sept. 9, along with proof-of-citizenship requirements in Georgia and Kansas.
Arizona
Updated Sept. 12.
Status: Litigation pending.
The Lawyer’s Committee for Civil Rights Under Law filed suit against Maricopa County on June 2, after the county cut down the number of polling places for the presidential primary by 70 percent. The reduction in polling place caused lines so long that some people waited up to five hours, and many people left without voting. The county had only one polling place for every 21,000 voters.
The suit asks for court supervision over all elections through the 2020 presidential primary, limits on waiting time at polls, and court approval over polling place maps.
Less than a week after the election, an Arizona election official apologized. “I apologize profusely — I can’t go back and undo it,” the official said.
On Sept. 9, the Democratic National Committee settled part of the suit they brought in April over the Maricopa lines, with county officials saying they’d implement some of the DNC’s suggestions on polling place organization and consider other suggestions. Left unsettled, though, is part of the DNC’s suit against an Arizona balloting statute, which automatically rejects provisional ballots not cast at the correct polling place.
The state also made it a felony to collect ballots for others and bring them to the polls, a law which will be in force for the first time for the 2016 election.
Georgia
Updated Sept. 14.
Status: A voting law passed in 2009, but only now in force, will be in place on Election Day. Preliminary injunction issued. Litigation pending.
The GOP-dominated Legislature passed a law back in 2009 that required voters to show proof of citizenship when registering. But the state couldn’t implement it until received the go-ahead in January from the U.S. Election Assistance Commission. The EAC is a federal government agency that was created by the Help America Vote Act in the wake of the 2000 Florida election fiasco. It develops election-administration guidelines and serves as the election administration clearinghouse. The League of Women Voters filed suit a month later over Georgia’s proof-of-citizenship requirement, as well as similar ones in Alabama and Kansas, and lost. Another lawsuit is pending alleging that the state illegally purged voters from the rolls.
A three-judge appeals court panel blocked Georgia’s proof-of-citizenship requirement on Sept. 9, along with proof-of-citizenship requirements in Alabama and Kansas.
The Lawyers’ Committee for Civil Rights Under Law, along with other civil rights groups, sued Georgia on Sept. 14, alleging that its voter registration system violates the Voting Rights Act and the First and Fourteenth Amendments by disproportionately disenfranchising minority voters. A 2010 policy requires voters’ information to exactly match what’s in Social Security or Georgia Department of Driver Services databases. Stephanie Cho of Asian Americans Advancing Justice, a plaintiff in the case, explained in a press release that Asian Americans often have names that are unfamiliar to clerks and therefore they won’t fit the exact match requirement. Similar issues impact Hispanic Americans and African Americans, one of the lawyers in the case told the Associated Press.
Indiana
Status: New voting law will be in place on Election Day.
Indiana has long had a photo-ID law. In fact, the Supreme Court case that ultimately found voter-ID laws to be constitutional, Crawford v. Marion County Election Board, originated from a 2005 Indiana law. A 2013 add-on allows partisan election officers to ask for anyone’s proof of identification.
In 2015, a judge ruled in favor of an ACLU lawsuit challenging a law that made it a felony to take a photo of your own ballot.
Kansas
Updated Sept. 12.
Status: Preliminary injunction issued.
On the same day as rulings in Wisconsin and North Carolina, a state district judge in Kansas allowed voters to have their primaries ballots counted even without proof of citizenship to have their ballots counted in the state’s primary election. An order not to count the ballots had been issued by Kansas Secretary of State Kris Kobach. It was part of an effort, started in 2013, to set up a two-tiered voting system, which prohibits voters who don’t show proof of citizenship (which is not required by federal voting law) from voting in state-level elections (Another case based on the two-tiered system is winding its way through appeals. The judge intends to rule again in September, before the November election.
A three-judge appeals court panel blocked Kansas’s proof-of-citizenship requirement on Sept. 9, along with proof-of-citizenship requirements in Alabama and Georgia.
Michigan
Status: Voting law overturned
A federal judge struck down Michigan’s ban on straight-ticket voting in July, ruling that it would unfairly burden black voters. In straight-ticket voting, a voter can select all candidates from the same party with one stroke. African-American voters are more likely to vote Democrat, and lawyers opposing the ban found that 70 percent of ballots in Detroit and Flint – cities with high percentages of African Americans – were cast with straight-ticket voting.
Mississippi
Status: New voting law will be in place on Election Day.
Mississippi’s photo-ID law was implemented in the 2014 midterm election and will get its first presidential test come November. Unlike most other states, Mississippi managed to avoid a lawsuit over its ID law. But, the Brennan Center’s Jennifer Clark warned, presidential elections are more of a test than even federal midterm elections: “A lot of people only show up to vote for presidential elections, and the electorate for a presidential election is more diverse in almost every way.”
Missouri
Updated Sept. 15.
Status: New voting law pending for 2017.
Missouri’s Legislature overrode Democratic Gov. Jay Nixon’s veto of a voter-ID bill on Sept. 14. The law, which would require voters to show a driver’s’ license or government ID to vote (voters without an ID can sign an affidavit and get their photo taken by an election worker), would not take effect till 2017. However, the measure still has to go through one more hurdle: Voters have to pass a constitutional amendment this November to support it, as the state’s Supreme Court ruled against voter-ID laws 10 years ago.
Nebraska
Status: New voting law will be in place on Election Day.
In 2013, Nebraska shortened early voting from a 35-day minimum to a 30-day maximum. The new system has never been tested during a presidential election.
New Hampshire
Status: New voting law will be in place on Election Day, with a fail-safe.
New Hampshire’s photo-ID law was first passed in 2012, when a Republican-controlled Legislature overrode a veto by a Democratic governor. In September 2015, the state added a safety net for people without ID: They’ll have their picture taken at the polls and get cards sent to their home address to confirm their identities. In July 2015, Gov. Maggie Hassan, a Democrat, vetoed a bill that would have required a 30-day residency to vote.
North Carolina
Updated Aug. 31.
Status: Voting law overturned.
An appeals court struck down North Carolina’s voting restrictions — which were introduced the day after the Supreme Court decision in 2013 that limited enforcement of federal Voting Rights Act. The North Carolina law added a strict photo-ID requirement, shaved a week off of early voting, and cut same-day registration, preregistration and out-of-precinct voting. The Circuit Court found that the law’s provisions “target African Americans with almost surgical precision.” The state Legislature, the ruling said, had specifically requested data on which racial groups benefited from certain voting mechanisms. The Legislature then created laws which targeted the tactics most likely to make it easier for African-Americans to vote. In a rare move, the appeals court reversed the fact-finding of the district court, writing that it “fundamentally erred.”
“We can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent,” the circuit court found.
While the state’s attorney general, Democrat Roy Cooper, said his office would not appeal the ruling, North Carolina’s Republican governor, Pat McCrory, filed an emergency stay request with the Supreme Court on Aug. 15. The state let the plaintiffs have same-day voting registration and out-of-precinct voting, but asked that the Court put back the voter ID law and the reduction on early voting and the ban on preregistration.
The U.S. Supreme Court denied McCrory’s stay request in an equally divided vote.
North Dakota
Status: Voting restriction overturned.
A judge ruled in favor of plaintiffs asking for a preliminary injunction blocking North Dakota’s strict ID law on Aug. 1, thanks in large part to evidence that it disproportionately disenfranchised Native-American voters. The law, one of the most restrictive in the country, only allowed a few forms of acceptable ID, such as a North Dakota driver’s license, a tribal identification card, or a state ID, and required the ID to show a current address. Native Americans, the judge found, are significantly less likely to have valid forms of ID. The law also eliminated “fail-safe” measures, like allowing voters without an ID to sign an affidavit and have their vote counted.
“The record is replete with concrete evidence of significant burdens imposed on Native American voters attempting to exercise their right to vote in North Dakota,” wrote District Judge Daniel L. Hovland.
The state likely won’t appeal the injunction before the 2016 election. “We feel we have no choice but to comply with the judge’s ruling, and we’ll make plans accordingly,” North Dakota’s secretary of state told Frontline.
Ohio
Updated Sept. 23.
Status: New voting law will be in place on Election Day
Opponents of Ohio’s voting restrictions scored some early victories. On May 24, a federal court threw out measures that cut early voting from 35 to 28 days, and eliminated “Golden Week,” which let residents register and cast absentee ballots simultaneously. On June 7, a federal judge blocked restrictions on absentee ballots as discriminatory. That law had required that absentee ballots be rejected if a voter made an error such as writing their address incorrectly, shortened the time a voter had to fix such mistakes, and prohibited poll workers from helping voters fill out the absentee ballot unless voters were disabled or illiterate.
On Aug. 23, the 6th Circuit Court of Appeals reversed the earlier trial court ruling onGolden Week. “Proper deference to state legislative authority requires that Ohio’s election process be allowed to proceed unhindered by the federal courts,” the court wrote in its ruling.
The Supreme Court declined to review the 6th Circuit ruling on Sept. 14, allowing the law cutting Golden Week to stand.
A separate lawsuit challenged restrictions on absentee ballots that prohibited unsolicited absentee ballot mailers and prepaid postage on absentee ballots. The plaintiffs lost and the case is being appealed. On Sept. 13, a 6th Circuit Appeals Court panel ruled 2–1against the plaintiffs. The lone dissenter, Judge Damon Keith, wrote: “By denying the most vulnerable the right to vote, the Majority shuts minorities out of our political process.”
In Ohio’s so-called “Supplemental Process,” county boards of elections identify voters who haven’t voted in two years and send them a notice to confirm they still live at the address on the rolls. If a voter doesn’t respond to the notice and doesn’t engage in voting activity (such as voting or filing a change of address with the local board of elections) for the next four years, they’re scrubbed from the rolls.
The court found fault with that process because it relies on people’s failure to vote as the primary “trigger” for purging them. The justices also found the confirmation forms sent to voters inadequate, writing, “Ohio has, for years, been removing voters from the rolls because they failed to respond to forms that are blatantly non-compliant with the NVRA.”
Rhode Island
Status: A voting law passed in 2011 will be in place on Election Day
Rhode Island’s 2011 photo ID law was passed by a Democratic Legislature and signed by an independent governor. The law, which was first in effect for the 2014 midterm elections and will be in place in 2016, allows voters without ID to vote by provisional ballot. It’s highly unusual for a Democrat-held Legislature to pass a voter-ID law, but, as a New Republic piece details, all politics is local.
South Carolina
Status: A voting law passed in 2011 will be in place on Election Day
Although South Carolina’s voter ID law was passed first in 2011, it was on hold thanks to a court order for the 2012 presidential election. Its first test at the polls was in the 2014 midterms.
Tennessee
Status: Newly amended voting law will be in place on Election Day
While Tennessee has had a photo ID law in place since 2011, a 2014 update limited acceptable IDs to federal or Tennessee-issued IDs only. A group of students sued in 2015 because the law didn’t allow for student or out-of-state IDs and lost that case in December.
Texas
Updated Sept. 23.
Status: Litigation pending. A new voting law will be in place on Election Day, with a fail-safe required by the courts.
Texas’s most recent bout with the judicial system over election law started on Aug. 4, when the U.S. Department of Justice sued Harris County, alleging that many of its polling places are inaccessible to voters with disabilities. The DOJ wants the county to reevaluate how it picks its polling places and to train poll workers about accessibility.
Ever since Texas enacted a photo-ID law in 2011, it’s been back-and-forth in the courts. A federal appeals court ordered a lower court to fix Texas’s strict photo-ID law, ruling that it violated the Voting Rights Act by disproportionately affecting African American and Hispanic voters. The state came back with a solution, officially providing a safety net: Anyone without an ID will be able to vote providing they sign an affidavit and show a voter registration certificate, a utility bill, bank statement, birth certificate, or other government document with their name and address. A district judge gave her final stamp of approval on the plan on Aug. 10.
However, the case may not be quite over. A spokesman for Texas Attorney General Ken Paxton said after the district court ruling that his office will “continue evaluating all options moving forward, including an appeal of the Fifth Circuit’s decision to the U.S. Supreme Court.” Paxton made good on his promise, petitioning the Supreme Court on Sept. 23 to hear Texas’ voter ID case. If the court takes the case, the decision wouldn’t come in time to have an impact on this November’s elections.
In the meantime, Texas election officials were found still to be sending out mailers telling voters that ID was required (it isn’t – voters can sign an affidavit). A federal judge issued an order on Sept. 20 that the state fix its ads and run any new ones by the plaintiffs to give them the opportunity to object.
Virginia
Status: Litigation pending.
While a federal judge upheld Virginia’s photo ID law in May, the 4th Circuit Court of Appeals is scheduled to hear oral arguments in an appeal on Sept. 22. This is the same court that overturned North Carolina’s ID law.
In a separate case, the commonwealth’s Supreme Court struck down Democratic Gov. Terry McAuliffe’s blanket executive order, signed in April, which restored voting rights to about 206,000 felons who had completed their sentences. After the ruling, McAuliffe said he will “continue to sign [individual] orders until I have completed restoration for all 200,000 Virginians.”
Wisconsin
Updated Aug. 26.
Status: Litigation pending.
In May 2011, Wisconsin passed a strict photo-ID law. In late July, federal District Court Judge James Peterson struck down parts of that law, writing in his decision that “Wisconsin’s strict version of voter ID is a cure worse than the disease.” The decision would loosen some the law’s restrictions, including allowing students to use expired student IDs at the polls and reducing barriers to in-person absentee voting. He also ordered that the state find a better safety net for people have trouble getting IDs.
While Peterson did not find an intentionally racial element to the 2011 law, he wrote that the way the Legislature enacted limits on in-person absentee voting “was to suppress the reliably Democratic vote of Milwaukee’s African Americans.”
Wisconsin’s attorney general is appealing Peterson’s ruling to the Seventh Circuit Court of Appeals. On Aug. 11, Judge Peterson issued a stay on part of his own ruling, halting the requirement for the state to fix how it handles voters who struggle to get IDs.
On Aug. 10, in a different case, the Seventh Circuit blocked an earlier decision by a different trial court that instructed election officials to allow voters without ID sign an affidavit to vote. A lawyer with the American Civil Liberties Union, one of the plaintiffs in that case, told The New York Times that there’s still time to overturn that injunction before Election Day.
On Aug. 26, the full Seventh Circuit declined to restore the affidavit voting option. Dale Ho, an ACLU lawyer, tweeted that the ACLU would appeal to the U.S. Supreme Court.