Voter ID Laws Are So Last (Election) Season

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Kimberly Strawbridge Robinson

Elections have consequences, and frequently they’re changes in election law.

New state legislatures often “rethink” election laws once in office, Edward B. Foley, director of Election Law at the Ohio State University Moritz College of Law, Columbus, Ohio, told Bloomberg BNA.

There’s no reason to think that won’t happen this time around, as Republicans solidified their hold on a majority of state houses, Foley said.

But with new legislation inevitably comes new litigation. The “voting wars will continue,” he said.

There may, however, be a new front in the war: voter rolls.

Automatic Registration

States considered a variety of measures to both expand and restrict access to the vote in 2016, according to the Brennan Center for Justice, a nonpartisan think tank seeking to improve voting systems.

On the expansion side, automatic voter registration “has taken off across the country,” the Brennan Center said in an April 2016 report.

This year saw “more automatic voter registration bills introduced than any other kind of voting legislation,” it said in the report. Most states had adopted their voting rules by then, to ensure they’d be in place by the 2016 primary and general elections.

“Under automatic registration, the government automatically and securely registers every eligible citizen who interacts with designated government offices unless the person declines to register,” the Brennan Center said.

A few states, like Oregon, California and West Virginia, have already passed automatic registration measures, and more than half of the states considered measures during 2016, it said.

The Brennan Center also pointed to criminal voting right restoration in states like Maryland and Kentucky and online voter registration as other popular measures under consideration to expand access to voting.

Voter ID

At the same time, several states considered and passed restrictive voting measures, the Brennan Center said.

“States are passing fewer voting restrictions,” it said. But restrictions in 14 states were “on the books for the first time in a presidential election in 2016.”

Among those restrictions, voter identification laws were the most common, the Brennan Center said.

Other restrictions included tightening of provisional and absentee voting, Foley said.

Effects Versus Intent

And where there are restrictions, there’s litigation.

The pace of voting litigation accelerates with each election cycle, Foley said.

In the months leading up to the Nov. 8, 2016 election, courts issued a number of last minute decisions on the rules governing the election.

Many of those decisions were seemingly inconsistent, Foley said, upholding restrictions in some states but striking them down in others.

That’s largely a result of the fact-specific nature of voting laws, Foley said.

It’s also due to a lack of clarity from the U.S. Supreme Court, he added, especially since the high court dismantled a large part of the Voting Rights Act in Shelby County v. Holder, 81 U.S.L.W. 4572, 2013 BL 167707 (U.S. June 25, 2013).

There’s a real “hunger for clarity” over whether voting laws should be judged based on the effect they have on access to voting or only based on the reasons they were passed, he said.

Without clarity on the effects versus intent question, it’s difficult for lower courts to sort out the legality of voting restrictions with any consistency, Foley said.

Although the Supreme Court has been in a “holding pattern” with only eight justices, we may soon know whether the court will finally step into the fight.

The justices will consider whether to take up a contentious Texas voter ID law Jan. 6.

New Front

But voter ID laws are really “yesterday’s fight,” J. Christian Adams, creator of the conservative Election Law Center blog, told Bloomberg BNA.

Adams, formerly of the Voting Rights Section at the U.S. Department of Justice under George W. Bush, said the new front is voter rolls.

A federal law requires states to keep their voter rolls clean, Adams said, referring to the Help America Vote Act.

“Over 14.8 million voters were removed from registration rolls in the 2 years leading up to the 2014 midterm election,” according to the U.S. Election Assistance Commission. The EAC is “an independent, bipartisan commission charged with developing guidance to meet HAVA requirements,” according to its website.

But some states have faced pushback from efforts to do so—both in courts and politically—from challengers who say these efforts are only meant to “purge” eligible Democratic and minority voters from the rolls.

For example, Ohio was forced to restore hundreds of thousands of voters to the rolls by a federal court just weeks before the Nov. 8 election.

And Virginia’s governor vetoed a bill to allow voter rolls to be compared to jury service, Foley said.

Despite this pushback, expect to see states moving on this front, Adams said.

Because clean voter rolls help prevent voter fraud, it’s probably the most important issue facing the states in the realm of voting laws, he said.

Whether clean voter rolls actually prevent voter fraud is the subject of much debate.

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 © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law