Whose votes count, whose don't? The legal landscape before Election Day

Supporters of ID laws disputed estimates that hundreds of thousands of prospective voters were without photo identification and played down the burden of obtaining acceptable identification. They argued that the US Supreme Court upheld a voter ID law in Indiana in 2008, establishing that such measures do not violate US constitutional protections.

Key legal battles emerged in Pennsylvania, Wisconsin, Texas, and South Carolina.

In Pennsylvania, a Republican judge determined that the commonwealth’s new ID law did not violate the Pennsylvania constitution, but he also ruled that there was not enough time left before the election for the state to issue identification cards to those residents lacking them. The judge ruled that election officials could ask for photo ID at the polls, but that any voter failing to provide it must be given a chance to cast a regular ballot anyway.

In Wisconsin, two Democratic judges ruled that the voter ID law in that state violated the Wisconsin constitution. Both issued injunctions permanently blocking enforcement of the law. State officials sought an expedited appeal to the state Supreme Court, but the request was denied. Appeals are pending.

Officials in Texas and South Carolina defended their ID laws by arguing that they were patterned on the Indiana statute upheld by the US Supreme Court.

But because both of those states are listed as covered jurisdictions under Section 5 of the Voting Rights Act (VRA) – because of a past history of racial discrimination in voting – they were required to submit their voter ID laws to Washington for preapproval.

The Obama Justice Department objected to the ID laws in both states. The issue went to a special three-judge court in Washington.

Under Section 5 of the VRA, a covered jurisdiction must prove that its proposed new election law will not have a discriminatory retrogressive impact on minority voting. 

That is a substantially more difficult standard to meet than the broader constitutional test established by the US Supreme Court in the Indiana voter ID case.

In Wisconsin and Pennsylvania, challenges to the ID laws in those states were litigated by civil rights groups on behalf of minority voters. In contrast, the Texas and South Carolina laws were challenged by the Justice Department under its authority via the VRA.

In the Texas case, a three-judge panel invalidated the law on the grounds that the photo ID requirement would create burdens that fall disproportionately on the poor, including a large number of African-Americans and Hispanics. The panel was made up of judges appointed by Presidents Obama, Bush II, and Clinton.

In the South Carolina case, a different three-judge panel (made up of two judges appointed by Mr. Bush and one by Mr. Clinton) found that the ID law did not have a discriminatory regressive effect on minority voters.

The court granted preclearance for the law to be enforced in elections beginning in 2013 – but not the current election. The judges said more time was necessary for South Carolina to fully implement the new ID law in a way that would avoid any discriminatory retrogressive effect on African-American voters in South Carolina.

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