By: Deborah Goldman

“Who votes?” It’s a popular question asked by political scientists across the country. This election cycle, however, the focus has shifted, making the proper question “who can vote?” — a result of the passage of “voter ID” laws in many states. [2].

Since the beginning of 2011, there have been 25 bills and 2 executive orders signed into law in 19 states. [4]. These voter ID laws each take a different form, but all effectively come down to one thing: in order to be eligible to vote, you must produce acceptable, government-issued identification (often photo identification) at your polling place on election day. [4, 6].

These laws, passed by predominately Republican state legislatures, are being broadly challenged, especially in battleground states like Pennsylvania. [1, 2]. Opponents, largely democrats, argue that these laws place a heavy burden on the poor, the elderly, and minority groups, and suggest that it is no coincidence that these targeted groups tend to vote democratic at an exceptionally high rate. [1, 3]. Supporters, however, claim that their only goal is to prevent voter fraud which diminishes the integrity of our electoral process. [1, 2].

The pushback against these laws has come from a number of sources. The Department of Justice has challenged the laws in Florida, Texas and South Carolina. [4]. In Maine and Ohio, voters took action to combat these laws. [4]. Additionally, cases have been brought in both state and federal courts by a number of parties in Wisconsin, Missouri, Arizona, Texas, Florida, Pennsylvania and Ohio. [4]. As of October 3, 10 courts have either blocked or limited these voting laws, while the Department of Justice has blocked another. [4].

The most recent action blunting the effects of these laws was handed down on October 2 by the Commonwealth Court of Pennsylvania. In Applewhite v. Commonwealth, the court, on remand from the state’s Supreme Court, issued a preliminary injunction against enforcement of the photo identification requirement of the state’s law upon finding that there had not been sufficient efforts put forth to ensure “liberal access” to such identifying documentation. [1, 7]. However, voters may still be asked to present photo identification. [1, 7]. This has led to concerns of confusing voters, as well as uncertainty about the future of voting rights in the state. [1]. Because the ruling only granted a preliminary injunction, the law has not been invalidated, and interested parties may find themselves in court yet again litigating this same issue. [1].

Similarly, the voter identification law passed in Texas, which had been challenged by the Department of Justice, made its way to the United States District Court for the District of Columbia. [3, 4, 8]. On August 30, the court ruled in Texas v. Holder, sustaining the Attorney General and Department of Justice’s denial of preclearance under Section 5 of the Voting Rights Act of 1965. [3, 8]. In doing so, the Court found that the state of Texas had not demonstrated that the law would not in effect “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise,” the legal standard for approval of voting-procedure changes declared by the United States Supreme Court in Beer v. United States, 425 U.S. 130, 141 (1976). [3, 8]. In fact, they found instead that it may do just that. [8]. In the unanimous opinion, Judge Tatel noted that this law placed an undue burden on a number of the state’s poor. [3]. He cited particularly the fact that approximately one third of counties did not have an office for documents to be procured, their cost, and that acquiring documentation could require a 200 mile round trip for people without drivers licenses. [3, 8]. Speaking to the greater Constitutional question, he said “[a] law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote.” [9].

Despite these and other legal successes, a number of laws are still on the books for this upcoming election. [4, 10]. Though the most restrictive ones in effect for this year are in states that generally vote Republican (Georgia, Indiana, Kansas, and Tennessee), it is possible that the impact of voter ID laws will be felt throughout the country. [6]. The greater national debate about who actually has access to the polls has been brought to the forefront this election cycle, and it is uncertain what the future holds in terms of accessibility.

One possibility involves an appeal to the United States Supreme Court of a lower-court holding regarding the Constitutionality of these voter ID laws. The Court would be faced with a number of options, including denying certiorari on the grounds that this is a political question. However, this appears unlikely because of the allegations of discrimination found throughout this discussion, especially in cases like Texas v. Holder. [1, 2, 3, 8, 9]. Claims of discrimination may be supported through closer analysis of the reasoning given by supporters of this legislation. For example, the Republican Pennsylvania House Majority Leader Mike Turazi was quoted saying that their voter ID law will “allow” Romney to win Pennsylvania, a swing state with 20 electoral votes. [1, 5, 11]. Additionally, lawyers on both sides of the issue have admitted that there are no known cases of in-person voter fraud. [11]. Whether or not the Supreme Court decides to grant certiorari, it appears unimaginable they will hear or rule on the issue before next month’s elections. Until a case is brought before the Court, the most we can do is speculate.








[7] Applewhite v. Commonwealth, No. 330 M.D.2012, 2012 WL 4497211 (Pa. Commw. Ct. Oct. 2, 2012).

[8] Texas v. Holder, No. 12-cv-128, 2012 WL 3743676 (D.D.C. Aug 30, 2012).

[9] Id. at 28.