New Voter ID Rules, Other Election Changes May Flummox Voters

This article was originally published at Stateline, an initiative of The Pew Charitable Trusts, and was written by Rebecca Beitsch.

Less than three weeks before Election Day, new voter ID requirements, early voting schedules and voter registration rules in more than a dozen states are creating uncertainty that could dampen turnout.

In some states, courts are still hashing out new rules.

Fourteen states have election laws that are more restrictive than they were during the last presidential election in 2012. Most of them require voters to show a photo ID before casting their ballots.

Some of those ID laws have been scaled back or overturned by judges citing racial discrimination, but legal battles have continued in several states because voting rights advocates say state officials haven’t fully complied with court orders.

There is confusion stemming from other court cases as well. Kansas’ attempt to require proof of citizenship from voters is still tied up in court. In Ohio, the battle is over people the state purged from the voter rolls because they hadn’t voted in six years.

“One of the greatest impediments to voting is confusion,” said Lloyd Leonard with the League of Women Voters. “In some pretty important states the rules are still changing.”

Decided, Not Settled

Courts struck down strict voter ID laws in North Carolina and North Dakota and scaled back laws in Texas and Wisconsin. But even though the cases have been decided, they aren’t quite settled.

In Texas, North Carolina and Wisconsin, plaintiffs have returned to court to try to force state officials to follow through on court orders.

Under the voter ID law Texas approved in 2011, for example, driver’s licenses, passports, military IDs and concealed carry permits are accepted, but student IDs and tribal IDs are not.

The 5th Circuit Court of Appeals in July said the law violated the Voting Rights Act and asked a lower court to come up with a remedy. The lower court required the state to let the estimated 600,000 Texans without qualifying IDs vote so long as they sign an affidavit and present proof of identity like a utility bill or voter registration card.

But voting rights advocates and the Department of Justice accused the state in September of failing to make a good faith effort to educate voters about how the law had changed. A judge said the state’s education materials made it seem as if the affidavit would be available only to people who could not get an ID, as opposed to people who faced a reasonable impediment to getting one.

Jennifer Clark of the Brennan Center for Justice at New York University School of Law, a think tank that advocates for voting rights and represented some of the Texas plaintiffs, said that distinction is important to people for whom retrieving a birth certificate from another state might mean missing work or having to find a babysitter.

The U.S. Supreme Court blocked North Carolina’s voter ID law from being used in the November election, though it was in place during the primary. An earlier opinion from the 4th Circuit Court of Appeals said the ID requirements, which were drawn up by legislators who requested data on the use of different types of IDs and voting methods by race, targeted African-Americans “with almost surgical precision.”

Following the 4th Circuit decision, which also restored the longer period for early voting in place before the ID law, Republican county election board officials received emails from party leaders urging them to limit early voting hours and locations to the bare minimum required under law.

An email obtained by North Carolina news organizations shows election officials were told by state Republican Party director Dallas Woodhouse that “as partisan appointees they have [a] duty to consider Republican points of view.”

The state elections board ultimately took control of several county plans and expanded access to early voting, but some of the original plaintiffs in the ID case are now suing over early voting plans in five counties.

Wisconsin’s law was upheld by a U.S. district judge who said the state could enforce the ID provision so long as the Division of Motor Vehicles gave visitors a piece of paper that certifies they are allowed to vote in the election, even if they lacked all the documents necessary to secure an ID. But that same judge later criticized the DMV after video surfaced showing employees weren’t providing the papers.

“Part of it could be deliberate recalcitrance, and part of it could be bureaucratic incompetence,” said Rick Hasen, a professor at the University of California-Irvine School of Law who watches election law litigation. “Whatever the intention of Wisconsin election officials, the DMV is not committed to helping get IDs in the hands of those who need them.”

In a recent court filing, the DMV said that although the problem was not widespread, it would do more training if directed by the court.

Cases and Confusion

Georgia and Alabama abandoned their efforts to require proof of citizenship from voters, at least for this election, but the battle continues in Kansas, where Republican Secretary of State Kris Kobach wanted the ballots of those who did not provide citizenship documents when they registered to be set aside until they could do so.

That action has spurred several lawsuits. In one, a county district court ruled Kansas could not keep separate voter registration lists for federal and state elections based on whether people had provided proof of citizenship. In another, Kobach agreed to allow those who had not provided proof of citizenship when visiting a DMV to vote in the election.

In a separate case filed by the League of Women Voters, a federal judge issued an injunction that allows Kansans to register using the federal form without having to provide citizenship documents. But that injunction is only in place until the U.S. District Court in Kansas rules on the case, which was argued Oct. 13. 

Following a practice in place since the 1990s, Ohio purged thousands of voters from the rolls because they failed to vote in a six-year period. The 6th Circuit Court of Appeals in September ruled that Ohio officials violated the National Voter Registration Act by removing the names, but it did not order the state to restore them. That issue is still being hashed out in a U.S. District Court, even though the state’s voter registration deadline was Oct. 11.

To help voters know where they stand, the League of Women Voters of Ohio has tried to get a list of those who were purged, but was able to get information from only some counties.

“Our big concern is, what do we tell these voters?” said Carrie Davis, the group’s executive director. “We’re worried there could be potentially a significant number of voters who show up to polls who think they’re registered to vote when they’re not.”

Ohio’s Republican Secretary of State John Husted proposed in court last week that those purged from the list be able to cast a provisional ballot on Election Day that would be counted as long as the voter’s address hasn’t changed and the elections board has no information that a person with that name is deceased. The litigants in the case, including the American Civil Liberties Union of Ohio, have not yet responded in court.

And in Virginia, the state Supreme Court in July blocked Democratic Gov. Terry McAuliffe’s effort to restore the voting rights of more than 200,000 people with a felony record all at once, forcing him to restore each person’s individually. So far McAuliffe’s office said he had restored the rights of 85,176 people. The state’s voter registration deadline was Oct. 17. Across the U.S., an estimated 6.1 million people with a felony record will not be able to vote in this year’s general election.

Tougher to Vote?

Voting rights groups say voter ID laws, the purging of voter rolls, fewer early voting locations in some cities, proof of citizenship requirements, felon voting laws, and confusion from litigation all contribute to it being tougher to vote than it was four years ago in many states.

“You don’t have to expressly prohibit people from voting to make it elusive to them,” said Denise Lieberman of the Advancement Project, a civil rights advocacy group. “By putting up hurdles and making it confusing, when it’s unclear if people got on rolls or not, by making people jump through extra hoops — it’s enough to keep voters from the polls.”

But some academics, including Hasen, say without registration numbers and turnout totals, it’s too early to tell what impact the new laws might have on the election.

And while voting rights issues have been heavily litigated this year, a number of laws passed over the past couple of years make it easier to vote.

A few states have enacted automatic voter registration. The number of states with online voter registration and same day voter registration has increased. And Maryland and California voted to expand the voting rights of felons.

“Voters have more options than ever before,” said Doug Chapin, an elections expert at the University of Minnesota who is also a consultant at The Pew Charitable Trusts (Pew also funds Stateline). “It’s easier to register to vote online. There are more options to vote other than an Election Day polling place, and it’s easier to get more information about what’s on the ballot and where to vote than ever before.”