RICHMOND — Virginia’s strict voter-identification law will go on trial in a federal court in Richmond in February, part of a national strategy by Democrats to remove what they say are barriers to voting by African American, Latino and poor voters.
Although Virginia’s Democratic governor, Terry McAuliffe, is sympathetic to the core issue in the lawsuit brought by two activists and the state Democratic Party, the state must defend its voter-ID law. A statute requiring photo ID was passed in 2013 and signed into law by McAuliffe’s Republican predecessor, Gov. Robert F. McDonnell.
To defend against the lawsuit, Attorney General Mark Herring (D) appointed an independent counsel, Mark F. “Thor” Hearne II, who represented the 2004 reelection campaign of then-
President George W. Bush.
Hearne will face off at the trial against Democratic lawyer Marc E. Elias, who is general counsel to Democratic front-runner Hillary Clinton’s presidential campaign and has also worked for McAuliffe and Herring in the past.
Elias will argue that Virginia’s photo-ID requirement, which he called “arbitrary and unfair,” severely burdens poor and minority voters who are most likely not to have valid ID — and, the lawsuit alleges, to favor Democratic candidates. If the lawsuit succeeds, it could give Democrats an edge in November’s general election in a swing state that both parties have called crucial to winning the White House.
“This lawsuit in Virginia is one of several that we have brought, including in Wisconsin, Ohio and North Carolina, to ensure that every eligible voter has an opportunity to vote and have their vote counted without unreasonable hurdles being put in their way,” Elias said.
The Republican National Committee has defended efforts by state lawmakers to strengthen voting rules in an effort to prevent mistakes, fraud and confusion.
“Voter ID laws protect and ensure the sanctity of the ballot box and the principle that every vote should count. Most people would say that’s common sense,” RNC Chairman Reince Priebus said in an op-ed on CNN.com.
When it was filed in June, the Virginia lawsuit alleged that the state unfairly burdens voters in three ways: by requiring them to show an approved photo ID, asking them to wait in long lines at certain polling stations, and blocking citizens who have been convicted of a felony from voting.
In November, U.S. District Judge Henry E. Hudson agreed to dismiss the part of the lawsuit dealing with felons. Then on Dec. 18, he dismissed the part of the lawsuit that involved long lines at polling places.
“There is no plausible contention” that those who waited in the lines “were denied the opportunity to vote,” Hudson said in his ruling. “Inconvenience alone does not qualify as a substantial burden on the right to vote.”
The challenge to Virginia’s voter-ID law was allowed to go forward, the judge said, because Democrats “demonstrated sufficient harm, albeit minimal” on that front.
Although the long-lines claim was dismissed, the state Department of Elections still agreed to continue its work to reduce the lines as much as possible.
In a nine-page consent decree announced Dec. 23, officials said they would make sure that the paper ballots issued when a machine malfunctions are counted the same way. They also promised to give uniform guidance to counties and cities for handling broken machines and long lines and to hire an expert to reduce wait times.
The deal was brokered by Elias on behalf of the Democratic plaintiffs in the case, and by Hearne on behalf of state election officials. But the two lawyers disagree about its significance.
Elias called the agreement “a huge first step in guaranteeing that minority voters and all voters will no longer wait hours and hours in line to exercise their right to vote.”
Hearne said the agreement isn’t a win or loss for either side, but rather binds election officials to continue work they had started to reduce lines at the polls.
Two state Republican lawmakers are criticizing the agreement, saying that Herring’s office should have included Republicans in the talks that resulted in the deal.
Sen. Mark D. Obenshain (R-Harrisonburg), who ran for attorney general in 2013 but lost narrowly to Herring, called the negotiations “backroom dealmaking.”
“It undermines confidence in the notion of free, open and fair elections when changes in the rules are being negotiated without having both political parties at the table,” he said. “I’m not reassured by Democrats saying, ‘Trust me.’ Or by the attorney general saying, ‘But we hired a Republican lawyer.’ ”
Sen. Jill Holtzman Vogel (R-Fauquier) said she agreed that the settlement was not transparent and urged McAuliffe’s secretary of administration, Nancy Rodrigues, and Elections Commissioner Edgardo Cortés to explain the agreement during a meeting of the Senate Privileges and Elections Committee in the upcoming legislative session.
Cortés said he would appear before lawmakers and noted that the Board of Elections, which includes a Republican member, recently approved the deal unanimously.
“We generally don’t involve lawmakers in the litigation process,” Cortés said.
Obenshain was instrumental in enacting Virginia’s voter-identification laws, which he said are a safeguard against fraud. The National Conference of State Legislators puts Virginia’s laws in the category of the nation’s strictest: Voters must present a valid photo ID to cast a ballot at the polls.