Courts Still Sorting Out Voting Rules as Election Looms

By Kimberly Strawbridge Robinson

Aug. 17 — North Carolina asked the U.S. Supreme Court Aug. 15 to reinstate its voter identification law, which was struck down by the U.S. Court of Appeals for the Fourth Circuit last month ( North Carolina v. N.C. State Conf. of the NAACP, U.S., No. 16A168, stay requested 8/15/16 ).

“Mere months before a general presidential election, the Fourth Circuit has invalidated several provisions of North Carolina election law,” creating the potential for voter confusion, North Carolina said in its Supreme Court petition.

But the Tar Heel State is just one of a handful of states embroiled in litigation over the rules that will govern the rapidly approaching November election.

And while the “conventional wisdom” is that these decisions striking down voting restrictions are a win for Democrats, they may end up helping Republican nominee Donald Trump, Ohio State University Moritz College of Law election law professor Daniel P. Tokaji, Columbus, Ohio, told Bloomberg BNA Aug. 16.

“This is a weird election,” he said.

High Stakes

At stake in these cases is who gets to vote in the upcoming election, Tokaji said.

While it's “hard to pin down” precisely, he said that as many as 10 percent of eligible voters might not possess the identification required in some states.

Moreover, changing the rules late in the game may confuse voters, Pepperdine University School of Law election law professor Derek Muller, Malibu, Calif., told Bloomberg BNA.

That alone could adversely affect voter turnout, Tokaji said.

Lessons Learned

Tokaji said that even though there is only a few months before the general election, these cases are actually being litigated relatively early in the process.

In October 2014, there was a confusing string of orders from the Supreme Court that allowed restrictive voting laws to go into effect, despite some lower court rulings that they were invalid.

For example, Justice Ruth Bader Ginsburg suggested that the court was determined to maintain the status quo given the proximity of the 2014 election, in her dissent in Veasey v. Perry, 83 U.S.L.W. 3235, 2014 BL 293560 (U.S. 10/18/2014) (request to vacate stay denied).

These cases were seen as a warning to challengers of these laws that they shouldn't wait too long to bring their cases to federal courts, Tokaji said.

The challengers seemed to have gotten the message, so that these decisions are now coming down in the summer, rather than the fall, he said.

Impermissible Burdens

And these decisions have been coming down in favor of those challenging the voting laws, Muller said.

“Recently, states like Texas, North Carolina, and Wisconsin have seen courts conclude that their voter identification laws impermissibly burden voters,” he said.

“Courts seem particularly troubled when the forms of acceptable voter identification are limited to just a few types, when the record reflects that ethnic minority voters may disproportionately lack the permissible forms of identification, and when there are no exceptions for eligible voters who lack the proper form of identification to cast a ballot,” Muller said.

Federal courts have also invalidated voting restrictions in North Dakota and Ohio, Tokaji noted.

Always More Litigation

But while courts are “trying to expedite these cases as quickly as they can,” some disputes are still ongoing, Muller said.

There are several cases pending in the Sixth Circuit. Wisconsin is requesting that the full Seventh Circuit take a look at its law, and North Carolina has asked the Supreme Court to intervene, Tokaji said.

“There's always going to be more litigation,” Muller said.

“These cases will be appealed, or new arguments will be made when the cases are sent back to the trial court after an appeal,” he said. “We should expect many of these cases to be with us in some form for years to come.”

Moreover, Muller added that “we should expect legislatures to amend their laws after facing judicial scrutiny of their existing laws.”

Unconventional Effect?

That's partly because this is largely a partisan issue, Tokaji said.

The conventional wisdom is that restrictive voting requirements hurt Democratic voters, namely less affluent and black voters, Tokaji said.

While he said that's mostly true, these restrictive voting requirements could have an effect on Trump supporters too.

In particular, he noted that Trump's success in the upcoming election might well depend on how well he can turn out less affluent, Caucasian voters.

If courts strike down these restrictions, it could provide a boon to these voters, Tokaji said.

But he said the effect likely wouldn't be overwhelming, affecting only those voters on the margins.

And, he noted, if the polls stay the way they have been—putting Democratic hopeful Hillary Clinton ahead by as much as double-digit margins—such a small effect won't mean very much for the presidential election.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.