“We have to make sure that this election is not stolen from us,” Republican presidential nominee Donald Trump said during a recent rally in Pennsylvania, “… Everybody knows what I’m talking about.”
As the poll numbers tighten, both nationally and in key battleground states, Donald Trump has ratcheted up his claims that without voter ID laws, Democrats will flood the polls with people ready to “vote 15 times.”
These claims are typical of what many Republicans have been asserting for more than a decade to justify severely restrictive voter ID laws now in effect across the nation.
As first enacted, these laws restricted the number of acceptable photo IDs to a handful – usually no more than seven or eight – and deliberately excluded IDs most readily available to low-income and young people through public assistance agencies, colleges and public or private employees. Texas and Wisconsin even excluded military veteran IDs, but relented after veterans groups protested.
Despite their voter fraud claims, many Republicans are on record saying that these laws were actually intend to suppress the votes of minorities, young people, the poor, people with disabilities and others who tend to vote Democratic. The laws also create confusion among voters and poll workers, and offer local officials numerous opportunities for highly partisan actions. They even allow repetition of abuses the courts have already labeled as “racist.”
These laws serve no useful purpose. The fraud they are supposed to address – impersonating someone else at the polls – is virtually nonexistent. Yet almost all the restrictive laws, though ruled unlawful, will likely remain in effect during the 2016 election.
The courts have begun to recognize the emptiness of the GOP claims and their pernicious impact on Americans’ most fundamental right. Voting-rights advocates have won a surprising string of victories against restrictive photo ID laws in Texas, Wisconsin, North Carolina and North Dakota, on top of earlier victories in Pennsylvania and South Carolina.
Unfortunately, most of the remedies the courts have ordered fall far short of what’s needed. Although all the courts ruled that the restrictions violate the Constitution or the 1965 Voting Rights Act, the judges did not strike down and nullify the laws. Instead, they settled for modest alternatives to the required IDs.
The half-measures have allowed local officials to repeat abuses that the courts condemned as racially oriented, while increasing confusion about what is acceptable. Yet this “softening” of restrictions is the new election model -- whether voluntarily, as in North Carolina in 2015, or by a court order, as in South Carolina, Texas and Wisconsin. But it has failed everywhere.
First, this approach depends on state officials accepting the court decisions. Because many officials are hyper-partisan or otherwise hostile, such acceptance is rare. It also depends on well-trained officials and poll workers, many of whom are only temporary employees.
It is also necessary to notify and educate potential voters who don’t have the required IDs about their rights to use alternative ones. This requires what could be an expensive public education campaign by states that are either hostile to the rulings or are financially unable to fund such an effort.
The difficulties in all four states illustrate the problems. Texas may be the worst offender, though the others are not far behind.
After the Fifth Circuit Court of Appeals, in July, ruled that the Texas law violated the Voting Rights Act and the Constitution by discriminating against minorities, Judge Nelva Gonzales Ramos ordered the state to advise people who declare they “cannot reasonably obtain” a required ID that they could use other forms of identification.
Texas, however, omitted the word “reasonably’’ from its voting materials, which implied that only those completely unable to get a required ID had the option of an affidavit. Ramos, obviously angered by the state’s failure to obey his initial order, required Texas to promptly change all its voting materials to add the “reasonably” language, and then to show the revisions to the plaintiffs’ lawyers for approval. Nonetheless, polling-place signs and workers continued to tell voters that they needed a photo ID card.
In the Fort Worth area, for example, Republicans warned election workers in “Democrat-controlled areas” to ensure that “OUR VOTER ID LAW IS FOLLOWED” – in flagrant violation of the court-ordered agreement. A Bexar County polling station recently posted a flier that said “Photo ID required for Texas voters” until a voter protested.
In addition, Texas officials, including the state’s attorney general and the director of elections, plan to investigate “everyone” who makes a “reasonable impediment” declaration to determine if they lied, and to refer cases to the district attorney for possible perjury prosecution where appropriate. Ramos now plans to look into this possible attempt at intimidation.
Wisconsin provides another example of how state officials have defied court orders. In July, Federal Judge James D. Peterson ruled that Wisconsin’s method of providing vital documents to eligible voters, such as a free birth certificate, was a “disaster” and should be improved. He also ordered the state to provide temporary ID receipts so that those waiting for the documents could vote on November 8.
State officials assured the court it would have the Department of Motor Vehicles take care of it, and they issued a press release that promised “Free Photo ID for Voting Now Available with One Trip to DMV.” Nonetheless, many DMV employees refused to provide the temporary voting receipts or a free photo ID.
During a subsequent court-ordered hearing, the DMV administrator admitted to giving voters incorrect information about the law and about the availability of voting receipts. Peterson immediately ordered the state to provide the voting receipts and correct its information. Yet a few days later, the chairman of the state elections commission responded, “We don’t have money budgeted for this remedy …”
None of this, however, should be a surprise. Other states subject to voting-rights orders have carried out similar evasions.
This was clear in South Carolina, where the reasonable-impediment option originated.
In 2012, the state announced that it would allow only five kinds of photo ID. But at the time, South Carolina was subject to federal oversight under the Voting Rights Act. It thus needed federal approval for any changes in its election laws. When it became clear that there would be no approval forthcoming, South Carolina agreed to allow people to vote if they swore there was a reasonable impediment to their obtaining one of the necessary IDs.
But during the next South Carolina election, in November 2013, large red posters appeared at polling stations that warned, “VOTING IN PERSON NOW REQUIRES PHOTO ID.” The Rockland County Election Commission homepage also instructed voters they “must have photo ID to vote.” The reasonable-impediment option was not mentioned.
During the South Carolina 2016 presidential primary in February, posters again appeared at polling stations. They announced “PHOTO ID REQUIREMENTS NOW IN EFFECT.” The posters featured illustrations of the five required photo IDs. This time the reasonable-impediment alternative was noted – in small print near the bottom.
When the state election commission was asked about this, an official first tweeted, “If you have photo ID, you should bring it to the polls. If you don’t, you’ll have to show it later for your vote to count.” After being informed that this was wrong, the official tweeted back, “No voter in the correct precinct should ever be turned away without being given the opportunity to vote.”
It is unclear how many people actually used the reasonable-impediment exception because South Carolina kept no statistics. Yet the confusion produced by the posters and the election commission’s responses could hardly have been accidental.
In North Carolina in 2013, the day after the U.S. Supreme Court issued Shelby County v Holder, which gutted the Voting Rights Act, the GOP-controlled legislature was ready to act. Republicans introduced a 57-page package of voting restrictions and passed it roughly seven weeks later. The new law had 20 substantive provisions, 19 of which were designed with what the Court of Appeals later called “almost surgical precision” to target African-Americans.
Among the 19 was a photo ID requirement modeled on the Texas statute, then the nation’s most restrictive. Apparently aware of the law’s vulnerability after the Texas decision, North Carolina, in 2015, added a reasonable-impediment exception similar to South Carolina’s. But it had one major difference: South Carolina provided a regular ballot for reasonable-impediment voters, while North Carolina offered only a provisional ballot.
The legislators must have known that provisional ballots create problems whenever they are used. Many are not counted when they should be.
The problems erupted during North Carolina’s 2016 presidential primary. As Democracy North Carolina, a voting rights monitoring group, found, the guidance given to voters and officials about the reasonable-impediment alternative was “grossly inadequate.” Ballots were not offered to many voters entitled to them, and many ballots were improperly rejected. Affidavits with nearly identical impediments were accepted in one county and rejected in another. Even in the same county, acceptance of the ballot often depended on which official reviewed it.
Adding to the confusion, at least four different kinds of affidavit form were used. In some cases, provisional ballots were rejected because the affidavits had no signature, even though the affidavit form did not contain a signature line and no one advised the voter to sign.
All this led the Fourth Circuit Court of Appeals to rule that the reasonable-impediment alternative did not eliminate the voter suppression produced by the photo ID law, and it struck down the entire voter ID law.
As the experiences of these four states show, efforts to deal with voter suppression by half-measures usually serve to create more confusion at the polls. Even voters with acceptable forms of ID can be discouraged to turn out. In one Texas congressional district, researchers from Rice University and the University of Houston found that the majority of surveyed registered voters did not turn out in 2014 because they thought they lacked a proper ID. Yet they actually possessed one.
It will likely take several successive elections to prove just how harmful these laws can be. While that is going on, the results in many close elections could be significantly distorted.
This is what seems to be happening today, as state officials delay or even ignore the court-ordered correctives.
In his ruling, Peterson, the federal judge in Wisconsin, described the state ID law as a “cure worse than the disease,” which “leads to real incidents of disenfranchisement.” That holds true for all these restrictive photo ID laws.
Because there really is no “disease” to begin with, there is no justification for so pernicious a “cure.” Or for the inevitable “disasters” produced by these half-measures.
About the Author
Herman Schwartz is a constitutional law professor at the American University Washington College of Law.
The views expressed in this article are not those of Reuters News.