by Sarah Smith
New law
Law on hold or overturned
New law in place, litigation pending
New law on hold or overturned, litigation pending
Fifteen states will have laws in place this Election Day that have never before been tested in a presidential election. This map shows those states, as well as where litigation over an election law is pending.
Map: Sarah Smith and Al Shaw/ProPublica, Source: Brennan Center
There are 15 states with new voting laws that have never before been used during a presidential election, according to a report by the Brennan Center for Justice. These laws include restrictions like voter ID requirements and limits on early voting. Many are making their way through the courts, which have already called a halt to two laws in the past month — one in North Carolina and one in North Dakota.
“All the sides were pushing for opinions over the summer so that nobody would run into the concern that it was all of a sudden too late to shift what the state had been planning to do,” said Jennifer Clark, counsel for the Brennan Center’s Democracy Program.
We’re tracking the new laws and the suits against them in the run-up to Election Day. We’ll keep this updated as decisions roll in.
Alabama
Status: Litigation Pending. New voting law will be in place on Election Day.
While a federal judge declined to issue a preliminary injunction against Alabama’s photo-ID law in February, a case against the law will go forward, with a trial expected in 2017. Alabama election law also requires proof of citizenship, a statute upheld in late June (the D.C. Circuit court of appeals will hear arguments in September).
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Arizona
Status: Litigation pending.
The Lawyer’s Committee for Civil Rights Under Law filed suit against Maricopa County on June 2, after the county cut down the number of polling places for the presidential primary by 70 percent. The reduction in polling place caused lines so long that some people waited up to five hours, and many people left without voting. The county had only one polling place for every 21,000 voters.
The suit asks for court supervision over all elections through the 2020 presidential primary, limits on waiting time at polls, and court approval over polling place maps.
Less than a week after the election, an Arizona election official apologized. “I apologize profusely — I can’t go back and undo it,” the official said.
The state also made it a felony to collect ballots for others and bring them to the polls, a law which will be in force for the first time for the 2016 election.
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Georgia
Status: A voting law passed in 2009, but only now in force, will be in place on Election Day. Litigation pending.
The GOP-dominated legislature passed a law back in 2009 that required voters to show proof of citizenship when registering. But the state couldn’t implement it until received the go-ahead in January from the U.S. Election Assistance Commission. The EAC is a federal government agency that was created by the Help America Vote Act in the wake of the 2000 Florida election fiasco. It develops election-administration guidelines and serves as the election administration clearinghouse. The League of Women Voters filed suit a month later over Georgia’s proof-of-citizenship requirement, as well as similar ones in Alabama and Kansas, and lost. Another lawsuit is pending alleging that the state illegally purged voters from the rolls.
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Indiana
Status: New voting law will be in place on Election Day.
Indiana has long had a photo-ID law. In fact, the Supreme Court case that ultimately found voter-ID laws to be constitutional, Crawford v. Marion County Election Board, originated from a 2005 Indiana law. A 2013 add-on allows partisan election officers to ask for anyone’s proof of identification.
In 2015, a judge ruled in favor of an ACLU lawsuit challenging a law that made it a felony to take a photo of your own ballot.
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Kansas
Status: Litigation pending.
On the same day as rulings in Wisconsin and North Carolina, a state district judge in Kansas allowed voters to have their primaries ballots counted even without proof of citizenship to have their ballots counted in the state’s primary election. An order not to count the ballots had been issued by Kansas Secretary of State Kris Kobach. It was part of an effort, started in 2013, to set up a two-tiered voting system, which prohibits voters who don’t show proof of citizenship (which is not required by federal voting law) from voting in state-level elections (Another case based on the two-tiered system is winding its way through appeals. The judge intends to rule again in September, before the November election.
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Michigan
Status: Voting law overturned
A federal judge struck down Michigan’s ban on straight-ticket voting in July, ruling that it would unfairly burden black voters. In straight-ticket voting, a voter can select all candidates from the same party with one stroke. African-American voters are more likely to vote Democrat, and lawyers opposing the ban found that 70 percent of ballots in Detroit and Flint - cities with high percentages of African Americans - were cast with straight-ticket voting.
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Mississippi
Status: New voting law will be in place on Election Day.
Mississippi’s photo-ID law was implemented in the 2014 midterm election and will get its first presidential test come November. Unlike most other states, Mississippi managed to avoid a lawsuit over its ID law. But, the Brennan Center’s Jennifer Clark warned, presidential elections are more of a test than even federal midterm elections: “A lot of people only show up to vote for presidential elections, and the electorate for a presidential election is more diverse in almost every way.”
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Nebraska
Status: New voting law will be in place on Election Day.
In 2013, Nebraska shortened early voting from a 35-day minimum to a 30-day maximum. The new system has never been tested during a presidential election.
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New Hampshire
Status: New voting law will be in place on Election Day, with a fail-safe.
New Hampshire’s photo-ID law was first passed in 2012, when a Republican-controlled legislature overrode a veto by a Democratic governor. In September 2015, the state added a safety net for people without ID: They’ll have their picture taken at the polls and get cards sent to their home address to confirm their identities. In July 2015, Gov. Maggie Hassan, a Democrat, vetoed a bill that would have required a 30-day residency to vote.
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North Carolina
Status: Voting law overturned. State intends to appeal.
An appeals court struck down North Carolina’s voting restrictions — which were introduced the day after the Supreme Court decision in 2013 that limited enforcement of federal Voting Rights Act. The North Carolina law added a strict photo-ID requirement, shaved a week off of early voting, and cut same-day registration, preregistration and out-of-precinct voting. The Circuit Court found that the law’s provisions “target African Americans with almost surgical precision.” The state legislature, the ruling said, had specifically requested data on which racial groups benefited from certain voting mechanisms. The legislature then created laws which targeted the tactics most likely to make it easier for African-Americans to vote. In a rare move, the appeals court reversed the fact-finding of the district court, writing that it “fundamentally erred”.
“We can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent,” the circuit court found.
While the state’s attorney general, Democrat Roy Cooper, said his office would not appeal the ruling, North Carolina’s Republican governor, Pat McCrory, says he’ll appeal and suggested that Cooper should stop taking his salary until he does. Cooper and McCrory are running against each other for governor.
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North Dakota
Status: Voting restriction overturned.
A judge ruled in favor of plaintiffs asking for a preliminary injunction blocking North Dakota’s strict ID law on Aug. 1, thanks in large part to evidence that it disproportionately disenfranchised Native-American voters. The law, one of the most restrictive in the country, only allowed a few forms of acceptable ID, such as a North Dakota driver’s license, a tribal identification card, or a state ID, and required the ID to show a current address. Native Americans, the judge found, are significantly less likely to have valid forms of ID. The law also eliminated “fail-safe” measures, like allowing voters without an ID to sign an affidavit and have their vote counted.
“The record is replete with concrete evidence of significant burdens imposed on Native American voters attempting to exercise their right to vote in North Dakota,” wrote District Judge Daniel L. Hovland.
The state likely won’t appeal the injunction before the 2016 election. “We feel we have no choice but to comply with the judge’s ruling, and we’ll make plans accordingly,” North Dakota’s secretary of state told Frontline.
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Ohio
Status: New voting law will be in place on Election Day
On May 24, a federal court threw out measures in this swing state that cut early voting from 35 to 28 days. The measures had also eliminated “Golden Week,” which let residents register and cast absentee ballots simultaneously. On June 7, a federal judge blocked other restrictions on absentee ballots as discriminatory. The law had required that absentee ballots be rejected if a voter made an error such as writing their address incorrectly, and shortened the time a voter had to fix such mistakes.
Ohio had also prohibited poll workers from helping voters fill out the absentee ballot unless voters were disabled or illiterate. A June 7 decision blocked that restriction.
The state is appealing all of the rulings.
A separate lawsuit challenged restrictions on absentee ballots that prohibited unsolicited absentee ballot mailers and prepaid postage on absentee ballots. The plaintiffs lost and the case is being appealed.
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Rhode Island
Status: A voting law passed in 2011 will be in place on Election Day
Rhode Island’s 2011 photo ID law was passed by a Democratic legislature and signed by an independent governor. The law, which was first in effect for the 2014 midterm elections and will be in place in 2016, allows voters without ID to vote by provisional ballot. It’s highly unusual for a Democrat-held legislature to pass a voter-ID law, but, as a New Republic piece details, all politics is local.
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South Carolina
Status: A voting law passed in 2011 will be in place on Election Day
Although South Carolina’s voter ID law was passed first in 2011, it was on hold thanks to a court order for the 2012 presidential election. Its first test at the polls was in the 2014 midterms.
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Tennessee
Status: Newly amended voting law will be in place on Election Day
While Tennessee has had a photo ID law in place since 2011, a 2014 update limited acceptable IDs to federal or Tennessee-issued IDs only. A group of students sued in 2015 because the law didn’t allow for student or out-of-state IDs and lost that case in December.
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Texas
Status: Litigation pending. A new voting law will be in place on Election Day, with a fail-safe required by the courts.
Texas’s most recent bout with the judicial system over election law started on Aug. 4, when the U.S. Department of Justice sued Harris County, alleging that many of its polling places are inaccessible to voters with disabilities. The DOJ wants the county to reevaluate how it picks its polling places and to train poll workers about accessibility.
Ever since Texas enacted a photo-ID law in 2011, it’s been back-and-forth in the courts. A federal appeals court ordered a lower court to fix Texas’s strict photo-ID law, ruling that it violated the Voting Rights Act by disproportionately affecting African American and Hispanic voters. The state came back with a solution, officially providing a safety net: Anyone without an ID will be able to vote providing they sign an affidavit and show a voter registration certificate, a utility bill, bank statement, birth certificate, or other government document with their name and address. A district judge gave her final stamp of approval on the plan on Aug. 10.
However, the case may not be quite over. A spokesman for Texas Attorney General Ken Paxton said his office will “continue evaluating all options moving forward, including an appeal of the Fifth Circuit’s decision to the U.S. Supreme Court.”
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Virginia
Status: Litigation pending.
While a federal judge upheld Virginia’s photo ID law in May, the 4th Circuit Court of Appeals is scheduled to hear oral arguments in an appeal on Sept. 22. This is the same court that overturned North Carolina’s ID law.
In a separate case, the commonwealth’s Supreme Court struck down Democratic Gov. Terry McAuliffe’s blanket executive order, signed in April, which restored voting rights to about 206,000 felons who had completed their sentences. After the ruling, McAuliffe said he will “continue to sign [individual] orders until I have completed restoration for all 200,000 Virginians.”
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Wisconsin
Status: Litigation pending.
On Aug. 10, the Seventh Circuit Court of Appeals blocked an earlier decision by a trial court that let voters without ID sign an affidavit to vote, putting Wisconsin’s strict photo ID law back on the books in its original form. A lawyer with the American Civil Liberties Union, one of the plaintiffs in the case, told The New York Times that there’s still time to overturn the injunction before Election Day.
The situation is even more complicated than it already sounds. This latest ruling doesn’t affect a separate ruling from late July. In that case, U.S. District Judge James Peterson struck down parts of Wisconsin’s photo-ID law, writing that “Wisconsin’s strict version of voter-ID law is a cure worse than the disease.” He required the state to provide some sort of safety net for those without ID and allow students to use expired student IDs.
While Peterson did not find an intentionally racial element to the law, he wrote that the way the legislature enacted limits on in-person absentee voting “was to suppress the reliably Democratic vote of Milwaukee’s African Americans.”
Wisconsin’s attorney general is appealing Peterson’s ruling to the Seventh Circuit - yes, the same court that issued the injunction that restored the photo-ID law.
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