Under the U.S. Supreme Court: Will voter ID fight determine the election?

MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent
Texas Gov. Rick Perry participates in the Republican Presidential Debate on the campus of Saint Anselm College in Manchester, N.H., on Jan. 7, 2011. Perry later called a ruling against Texas's voter ID law a victory for fraud. -- UPI/Kevin Dietsch
Texas Gov. Rick Perry participates in the Republican Presidential Debate on the campus of Saint Anselm College in Manchester, N.H., on Jan. 7, 2011. Perry later called a ruling against Texas's voter ID law "a victory for fraud." -- UPI/Kevin Dietsch | License Photo

WASHINGTON, Oct. 14 (UPI) -- With President Obama and Republican nominee Mitt Romney fighting for every vote as the bitter U.S. presidential election campaign races through its final weeks, Democrats appear to be winning in at least one vital arena: Republican sponsored voter ID laws are falling like flies in the courts.

At least 34 states have enacted more restrictive voting laws; of those, 17 have enacted laws requiring the presentation of a government-issued photo identification, such as a driver's license. The Brennan Center for Justice said those 17 states account for 218 of the 270 electoral votes needed to win the presidency.


If the laws are implemented, the center said, millions of voters would be affected.

Republican sponsors of voter ID laws say they are necessary to prevent widespread voter fraud. Democrats contend proponents have produced almost no evidence of voter fraud, and the laws are thinly disguised attempts to suppress the votes of those least likely to have driver's licenses -- the elderly, inner city blacks and Hispanics -- but most likely to vote Democratic.

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"Every voter restriction that has been challenged this year has been either enjoined, blocked or weakened," Lawrence Norden of the Brennan Center told The New York Times in a story published Oct. 2. "It has been an extraordinary string of victories for those opposing these laws."


The center is part of the New York University School of Law and is an opponent of voter ID.

The Times said New Hampshire is implementing its voter ID law, but voters who do not have a photo ID will be allowed to vote, then have a month to prove their identity.

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Even when strict voter ID laws survive -- in Kansas, Indiana, Georgia and Tennessee -- they affect states that are seen as solidly Republican.

However, if Democrats are winning in court, they appear to be losing in the court of public opinion.

A Rasmussen Reports poll released in June indicated three out of four likely U.S. voters support the requirement of a photo ID while less than one in five opposed the laws

RELATED Pa. Court: No photo ID needed to vote

Support for voter ID cuts across party lines -- 85 percent of Republicans supported it, as did 77 percent of independents and 63 percent of Democrats.

The poll showed likely voters, by a 48 percent-to-29 percent margin, believed letting ineligible people vote was a bigger problem than keeping legitimate voters from casting a ballot.

The poll was based on a nationwide telephone survey of 1,000 likely voters in early June. The margin of error was 3 percentage points.

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Still, voter ID laws have been taking a beating in state and federal courts.

On Oct. 2, for example, a state judge in Pennsylvania blocked implementation of that state's Republican-sponsored voter ID law, though he left the law mostly intact. As a result, Pennsylvania voters can vote in the Nov. 6 election without presenting a photo ID.

Commonwealth Judge Robert Simpson questioned whether the state could set up "liberal access" to photo IDs before the election.

On Sept. 27, the Wisconsin Supreme Court refused to review two lower court rulings that said the state's voter ID laws violate the Constitution. Though the state high court said it might eventually hear the appeals, the Milwaukee Journal-Sentinel reported the law will not be in effect for the November presidential election.

The Wisconsin cases where brought by the NAACP and an immigrants' rights group.

Last Wednesday, a three-judge federal panel in Washington upheld South Carolina's voter ID law but said it could not be implemented until next year. The panel said there was not enough time before the November election to put the law in place. The U.S. Justice Department had blocked the implementation of the law, using the Voting Rights Act.

The South Carolina law requires a voter to show one of five forms of photo ID -- a driver's license, a photo ID from the state Department of Motor Vehicles, a passport, military ID or a voter registration card with a photo issued by the local elections office.


Opponents say the law will affect black South Carolinians disproportionately: 71,000 registered African-American voters don't have any of the five IDs.

But the authors of South Carolina's law dispute accusations the statute is intended to suppress black voter turnout. Republican lawmakers Alan Clemmons and Chip Campsen said their law would only fight election fraud and is not racially motivated, McClatchy Newspapers reported.

On Aug. 30, a different three-judge panel in Washington rejected a request from Texas to approve its voter photo-identification law.

Under Section 5 of the Civil Rights Act, certain sections of the country with a history of discrimination, including Texas, must receive permission from the U.S. attorney general or a three-judge panel in Washington before implementing voter changes.

Blocked by U.S. Attorney General Eric Holder, Texas officials asked the three-judge federal panel for a "declaratory judgment" that the state voter ID law "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race, color" or membership in "a language minority group," as required by Section 5.

U.S. Circuit Judge David Tatel said in his opinion the three-judge panel finds Texas "has failed to make this showing -- in fact, record evidence demonstrates that, if implemented, [the voter ID law] will likely have a retrogressive effect. Given this, we have no need to consider whether Texas has satisfied Section 5's purpose element. Accordingly, we deny the state's request for a declaratory judgment."


Texas Attorney General Greg Abbott said the state will appeal the ruling to the U.S. Supreme Court. Texas Gov. Rick Perry called the ruling a "victory for fraud."

The Texas case caused Holder throw down the gauntlet in his speech to the NAACP annual convention in Houston July 10.

"As many of you know, yesterday was the first day of trial in a case that the state of Texas filed against the Justice Department, under Section 5 of the Voting Rights Act, seeking approval of its proposed voter ID law," he told the convention. "After close review, the department found that this law would be harmful to minority voters -- and we rejected its implementation.

"Under the proposed law, concealed handgun licenses would be acceptable forms of photo ID -- but student IDs would not," Holder said. "Many of those without IDs would have to travel great distances to get them -- and some would struggle to pay for the documents they might need to obtain them."

Holder said some recent studies show only 8 percent of white voting age citizens nationally lack a government-issued ID, while 25 percent of voting age African-American citizens lack one.


"But let me be clear: We will not allow political pretexts to disenfranchise American citizens of their most precious right," Holder said.

And on July 3, Michigan Gov. Rick Snyder, a Republican, vetoed GOP-backed voter ID legislation. In a statement, he said the requirement "could create voter confusion among absentee voters."

So assuming, as most do, that the voter ID issue will reach the U.S. Supreme Court at some point, how will the justices jump?

In the only modern precedent, 2008's Crawford vs. Marion County, the justices ruled 6-3 to approve Indiana's voter ID law, brushing aside Democratic objections.

The prevailing opinion was written by liberal Justice John Paul Stevens; only two other members of the court, conservatives Chief Justice John Roberts and Justice Anthony Kennedy, joined it.

Stevens said Indiana has a legitimate interest in protecting the integrity of its elections, and protecting the public's confidence in elections. Stevens dismissed concerns that majority Republicans in the Legislature were trying to suppress the Democratic vote -- their motive didn't matter, he said.

"While the record contains no evidence that the fraud [the voter ID law] addresses -- in-person voter impersonation at polling places -- has actually occurred in Indiana," Stevens conceded, "such fraud has occurred in other parts of the country, and Indiana's own experience with voter fraud in a 2003 mayoral primary demonstrates a real risk that voter fraud could affect a close election's outcome."


Stevens said: "Because Indiana's [photo ID] cards are free, the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents and posing for a photograph does not qualify as a substantial burden on most voters' right to vote, or represent a significant increase over the usual burdens of voting."

Three conservative court members, Justices Antonin Scalia, Clarence Thomas and Samuel Alito, joined in the judgment but not in Stevens' opinion. In a separate opinion, they said Indiana's voter ID law should be upheld because its overall burden is minimal and justified.

Three liberal justices dissented. Justice David Souter, joined by Justice Ruth Bader Ginsburg, said the Indiana voter ID law "threatens to impose non-trivial burdens on the voting right of tens of thousands of the state's citizens ... and a significant percentage of those individuals are likely to be deterred from voting."

He said Indiana officials "fail to justify the practical limitations placed on the right to vote, and the law imposes an unreasonable and irrelevant burden on voters who are poor and old."

Dissenting separately, Justice Stephen Breyer said, "I believe the statute is unconstitutional because it imposes a disproportionate burden upon those eligible voters who lack a driver's license or other statutorily valid form of photo ID."


Stevens and Souter have retired -- replaced by fellow liberals, Justices Sonia Sotomayor, a Hispanic, and Elena Kagan.

Roberts, Kennedy, Scalia, Thomas and Alito remain on the modern court, and constitute a working five-justice majority. Unless they've changed their minds in four years, they still support voter ID laws.

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