With GOP gains, Voter ID on the fast track in NC

With GOP gains, Voter ID on the fast track in NC

- in Law and the Courts

The voting booths were barely closed when members of the state’s newly-empowered Republican supermajority announced that they would move quickly to reverse course on bills vetoed by Gov. Beverly Perdue — including a proposed voter ID bill.

But with the next round of elections two years away and a potentially seismic shift in the U.S. Supreme Court’s position on voting rights looming, the incoming legislature might be better served by a more deliberate approach, drawing upon the experiences of other states and the directions coming down from the high court.

Jumping on the bandwagon?

At the end of the last legislative session, Gov. Perdue vetoed a Republican-sponsored voter ID bill that would have required voters to present one of eight types of photo identification – including a proposed free voter card available at county election offices — in order to vote.  Those who showed up to vote without that ID would have been able to vote by provisional ballot, but would have had to appear at the county election office within a certain period of time afterwards and show required photo ID in order for that ballot to count.

Had the General Assembly overridden that veto, the state’s new voter ID law would have been among the strictest in the nation. It would also have been among the least likely to pass judicial scrutiny.

The incoming Republican supermajority could surely pass that bill into law, but is it necessary?  Or is it just a solution in search of a problem?

According to a comprehensive study by the News 21 Who Can Vote project, the rate of voting fraud in the U.S. – based upon an analysis of 2086 reports of alleged voting fraud since 2000 – is infinitesimal.  And in-person voter fraud, the supposed impetus for the rush to enact tough voter ID laws, is virtually non-existent.

“Since 2000, a time when 146 million Americans were registered to vote, News21 found 10 cases of in person voter fraud, which only photo ID laws could prevent.  That would be about one case for every million eligible voters,” the project stated on its website.

In N.C., the project found 22 cases of alleged voter fraud, none of which involved voter impersonation.

Is that a statistic that calls for quick and decisive action by the legislature?

Why the hurry?

Any voter ID law passed by the General Assembly would have to be precleared by the U.S. Department of Justice, pursuant to Section 5 of the Voting Rights Act, before it could be implemented in state. That in and of itself could take time if preclearance is denied or challenged in court.

In the meantime, the need for preclearance may be eliminated, or curtailed, depending upon how the Supreme Court rules in a case challenging the constitutionality of Section 5 brought by officials in Shelby County, Alabama.

The Supreme Court has hinted in recent years – not so subtly — that it is poised to take on the merits of Section 5. In 2009, the Court came close to striking that section in a challenge to the formula underlying the selection of jurisdictions subject to its provisions.

“The historic accomplishments of the Voting Rights Act are undeniable,” Chief Justice John Roberts wrote in Northwest Austin Municipal Utility District Number One v. Holder. But “things have changed in the South. . . . Voter turnout and registration rates now approach parity.

“Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.

“The statute’s coverage formula is based on data that is now more than 35 years old,” he added, “and there is considerable evidence that it fails to account for current political conditions.”

Congress has done nothing since to update the formula, and the Court’s decision to hear the Shelby County case may signal that the justices are now tired of waiting.

The Court will also rule on challenges to other state voter ID laws. In Arizona v. InterTribal Council, the Court will rule on the constitutionality of a state requirement that voters must prove they are U.S. citizens before they register to vote and cast their ballots.

And the Court may also hear an appeal involving a Texas voter ID law that is very similar to the one proposed in N.C.  In August, a three-judge panel of the U.S. District Court in Washington, D.C. refused to preclear that law, finding that its “photo ID only” provisions and its alleged “free” voter ID provision had a disproportionate impact on minorities.  Texas has appealed that decision to the Supreme Court.

No photo required

States with flexible voter ID requirements are more likely to withstand challenges in court.  In those states, voters without photo ID may be able to sign an affidavit before voting, and they are not required to return the local election office and show ID before their vote can be counted.  In at least 16 other states, according to ProPublica.org, voters have a wide variety of IDs to use before voting, some of which do not include a photo.

Those states with strict photo ID only requirements, like Texas, have had more trouble.  In Wisconsin, a strict photo ID law passed by the legislature in 2011 was declared unconstitutional by a state judge in March.

In South Carolina, the voter ID law enacted in 2011 does have a photo ID requirement, but its provisions allowing voters to obtain a free voter photo ID card or to use their prior non-photo voter ID if necessary were enough for a three-judge panel to grant preclearance, though the law won’t be implemented until 2013.

Members of the General Assembly hinted at flexibility late in the last legislative session, with some discussion of expanding types of required ID happening, perhaps in the face of a likely veto and unlikely override. But they never walked the talk, and Perdue’s veto stood.

This time around, they may be all-but-guaranteed passage of a strict photo ID law, but that might be a hollow victory.  In the courts, they’ll likely be sent back to the drawing board.

About the author

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at sharonmccloskey.com or @sharonmccloskey.