The Washington PostDemocracy Dies in Darkness

As voter rights cases churn through courts, rights are uncertain. But confusion is guaranteed.

Indiana voters cast their vote at a polling site in the 2016 US presidential primary election in Indianapolis, Indiana, May 3, 2016. (EPA/STEVE C. MITCHELL)
Placeholder while article actions load

After a notable string of voting rights decisions in the past few weeks — throwing out or weakening voter identification and other restrictive voting laws in Texas, North Carolina, Wisconsin, and elsewhere — you might think that the rules are settled for November.

But the rules are far from settled. Things are very much in flux, and the possibility of disenfranchisement through confusion or reversals of recent gains remains. Indeed, just Wednesday an appeals court put on hold a softening of Wisconsin’s voter ID law imposed a few weeks ago by a trial court.

To recap, since the disputed 2000 presidential election, which convinced the Democratic and Republican parties that the rules of the game really matter, there’s been an uptick in the amount of legislation governing voting rules, such as the length of the early voting period, and the amount of litigation around those rules. Litigation rates have more than doubled in the post-2000 period.

Mostly Republican legislatures passed laws making it harder to register and vote, citing the need to prevent voter fraud and instill voter confidence, even though there is little evidence of fraud or that the laws help instill voter confidence in the fairness of elections.

In three states, however, those laws were struck down or weakened:

  • In North Carolina, the U.S. Court of Appeals for the 4th Circuit held that North Carolina passed its law with a racially discriminatory purpose. It was discriminating against African-Americans, and knowingly did so by collecting data by race on questions such as which types of voter identification cards people of each race possess. Even if North Carolina had a partisan, not racial, motive, the court held, its law could be considered passed with racially discriminatory intent because it acted knowing the law would have a negative effect on African-American voters, who tend to vote for Democrats.
  • In Texas, the U.S. Court of Appeals for the 5th Circuit held on a 9-6 vote that Texas’s voter id law had a racially discriminatory effect on African-American and Latino voters, and it sent the cases back to the trial court to reconsider the intent question.
  • In Wisconsin, one federal judge held that Wisconsin’s voter id law had to be softened to allow those voters who are having extra trouble getting the IDs be able to vote. He ordered those voters to be allowed to vote by signing an affidavit under penalty of perjury swearing to the voter’s identity and to the inability to get the right kind of ID. A second federal judge ordered additional changes to Wisconsin’s laws so that it would not burden minority and poor voters.

But these rulings are not the end of the story.

Texas gave up fighting and agreed to a set of rules for voters who lack one of the forms of identification required by the law. These voters can vote using an affidavit and other proof of identity, such as a utility bill. But the question in Texas is that voters who lack the ID but want to vote won’t get the message about how they can vote. The agreement requires Texas to spend at least $2.5 million educating voters about the requirement, which may or may not be enough. The track record on softening harsh voter ID rules shows this may work better in theory than practice.

In North Carolina, the state has resisted the Fourth Circuit’s order and is planning on filing an emergency motion in the Supreme Court so that it can put its voting restrictions back in place for November. This creates uncertainty for election officials planning for the upcoming election. Meantime, the 4th Circuit’s ruling restored earlier voting rules, which gave discretion to local partisan election boards to set the rules for early voting.

Already some Republican commissioners in North Carolina want to roll back early voting. One newly-appointed Republican Commissioner in Wake County wants to stop Sunday voting (used by African-American voters in “souls to the polls” operations to take people to vote after church) and shut down a polling place at North Carolina State University. As Professor Michael McDonald argues, this is the very conduct that the 4th Circuit pointed to as discriminatory, and early voting cutbacks could serve as the basis for putting North Carolina back under federal supervision.

Things are also in flux in Wisconsin, where the state has appealed both of the district court rulings to the 7th Circuit. In one of the cases, the Seventh Circuit panel just put the affidavit option on hold for the 2016 elections, ruling it was too broad a remedy to deal with the special burdens some voters face in getting ID. The case will now go to the full 7th Circuit, where the results could be better for voting rights advocates. Crucially, in the first round of litigation which upheld the law, the entire 7th Circuit divided 5-5 on whether to take up the case again. Now, one of the judges against review has retired, leaving a 5-4 majority skeptical of Wisconsin’s voting rules, and a chance the affidavit requirement will soon be restored for the 2016 elections.

Wisconsin, like North Carolina, could end up taking its case to the Supreme Court on an emergency basis. With the death of Justice Antonin Scalia, the court is divided 4-4 on ideological grounds, and that could mean a split over how to deal with these voting cases. A tie leaves the lower court ruling standing.

The bottom line is that there’s still great uncertainty about the rules for voting in these key states. The longer this goes on, the harder it will be not just for those who run the election but for voters looking forward to participating in November’s key election.

Richard L. Hasen is Chancellor’s Professor of Law and Political Science at UC Irvine School of Law and author of  “Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections.”