Taking Stock of 2012 and Looking Ahead at 2013

Over the past two years, state legislatures across the country have introduced legislation that would restrict voter’s access to voting by passing restrictive voter ID laws, reducing early voting periods, and making it harder for civic organizations to help people to register to vote. In 2011, eight states passed new voter photo ID laws, six reduced the number of early voting days, three passed proof of citizenship requirements, and two passed laws restricting voter registration drives.

In 2012, many of these laws were blocked or curtailed by the legislature, courts, or – in two states – by voters’ initiatives. Unfortunately, not all of the attempts to suppress the vote were thwarted and many voters faced long lines because the number of early voting days were shortened or faced confusion over the new laws whether in force or temporarily blocked by the courts. Below, we take a look at the good and the bad that happened in 2012 as well as what to look for in 2013.

Looking Back – Good News

Many positive developments happened in 2012. Suppressive laws that were passed in 2011 in Ohio, Wisconsin, and Texas were either repealed or were put on hold for 2012. In Ohio, after voting rights activists gathered enough petition signatures to bring a repeal of a law that reduced the number of days of early voting, the legislature instead passed a repeal of the law but did not restore the early voting period over the last three days before the election. The Obama campaign and the Ohio Democratic Party successfully filed suit to restore early voting over those last three days.

Ohio Secretary of State John Husted also lost his battle to overturn how provisional ballots in Ohio are counted. A judge ruled that provisional ballots cast in the wrong precinct because of a poll worker error were to be counted.

The Michigan legislature passed three bills that would require voters to check a citizenship checkbox in order to vote, place onerous restrictions on groups holding voter restriction drives, and require voters to show a photo ID to vote by absentee ballot. Republican Governor Rick Snyder vetoed all three bills saying that they could cause confusion among voters and limit ongoing voter registration efforts.

The U.S. Department of Justice (DOJ) used its authority under Section 5 of the Voting Rights Act (VRA) to block voter ID laws in South Carolina and Texas as well as the reduction of early voting days in five Florida counties covered by the VRA. South Carolina sued and eventually the voter ID law was upheld but not in time for the 2012 election. Texas also sued and a federal three-judge panel ruled that the law did, in fact, discriminate against minority voters in violation of the VRA. Texas plans to appeal the ruling to the U.S. Supreme Court. In Florida, the DOJ settled with the state to allow the reduction of the number of early voting days only if those five counties under Section 5 jurisdiction kept early voting open for the maximum 96 hours.

Florida also faced a lawsuit over its highly restrictive third party voter registration law that caused the League of Women Voters and Rock the Vote, among others, to suspend voter registration efforts in the state. A judge blocked the most onerous parts of the voter registration law and the League of Women Voters and Rock the Vote resumed registration activities.

In Wisconsin, two separate state courts issued permanent injunctions against the voter ID law passed in 2011, citing the states’ constitutional right to vote and the burden the ID placed on citizens wanting to exercise that right. The law was on hold for the November election. The state plans on appealing the rulings.

Finally, following a failed attempt to pass voter ID in 2011 and a citizen’s referendum overturning a repeal of Election Day registration, Maine legislators once again introduced voter ID legislation in 2012, but legislators abandoned the effort. Instead, the legislature called for a study conducted by the secretary of state’s office on possible changes to Maine’s election laws that is due February 2013.

Looking Back – Bad News

While, in the end, many voter suppression efforts were blocked or overturned in 2012, there were a number of laws that passed and administrative actions that threatened to suppress the votes of millions of voters. Not only were voter ID laws passed in New Hampshire, Pennsylvania, and Virginia, but states like Florida, Iowa, and Texas attempted a purge of their voter rolls that would have resulted in thousands of voters losing their right to vote in November.

The Pennsylvania legislature passed one of the strictest voter photo ID laws in the country this year. A study found that over 1 million registered voters did not have an acceptable ID to vote under the law. A Pennsylvania court issued a temporary injunction suspending the law for the November election, but hearings will resume in 2013 to determine whether the court will issue a permanent injunction.

New Hampshire and Virginia also passed voter ID laws. Virginia’s law allows the use of non-photo IDs as well as photo IDs. Before the change a Virginia voter lacking ID could simply sign an affidavit under penalty of law to affirm their identity. Under the new law the affidavit “fail-safe” was repealed, requiring voters without ID to vote by provisional ballot and send to the county election board by noon on the Friday following Election Day a copy of their ID. New Hampshire’s law required a photo ID but a voter could sign an affidavit and still vote. Next year, voters will have their photo taken at the polling site if they do not have an accepted ID. However, town clerks have raised concerns and the legislature may consider revising the law. New Hampshire also passed a law tying a person’s voting domicile with residency in an attempt to prevent out-of-state college students from voting in New Hampshire. The portion of the law that added intimidating language to the voter registration application was struck down in court.

In Florida, the number of early voting days was reduced from 14 to 8, a change that many believe helped cause very long lines at early voting sites, some as long as 6 or 7 hours – including a man in Miami-Dade County waiting until 1am to finally cast his ballot. These early voting restrictions also lead to the long lines seen on Election Day.

What’s Next?

What’s next for 2013? Only time will tell but there are a few developments – both positive reforms and restrictive legislation – that FELN will keep an eye on in 2013.

There are at least three states that may look at passing legislation to allow Election Day registration – Colorado, Maryland, and Massachusetts. The political climate looks promising in all three states to pass same day registration, which would substantially increase voter turnout and decrease the use of provisional ballots.

Some states may look at allowing or expanding early voting. In Maryland, legislators are looking at ways to resolve the long lines in 2012 and may consider expanding the number of early voting days. Now that control of the legislature has changed, Minnesota may consider discussions to improve upon its voter-friendly election laws by implementing early voting. In Florida, lawmakers have introduced legislation to restore early voting but, given the make-up of the legislature, it is unlikely to pass. However, there still is a lawsuit brought by the League of Women Voters and the ACLU of Florida to restore the number of early voting days to 14. In Virginia, a bill to allow early voting has been introduced and Governor Bob McDonnell said he is willing to consider it.

More states are likely to consider laws to make voter registration easier. California last year began allowing voters to register and re-register to vote online. Over 800,000 used the online registration system and a state senator is proposing to expand it to put a link to the online registration system on all state government websites. Reformers in New Mexico are planning on pushing online voter registration and there are expectations that New York will broaden its online DMV voter registration or at least allow statewide voter registration portability.

In Nevada, Democratic Secretary of State Ross Miller has proposed a photo identification system that would use the DMV photo database to populate electronic poll books to identify voters. Those that did not have an ID would still be able to vote and would have their picture taken at the polling site to be added to the poll books for future elections. This may be a non-starter for the Democratic-controlled legislature unless it’s coupled with reforms like Election Day registration.

Despite controversy over long lines and a long wait for results last month in Florida, there is likely little positive legislation that will make it through the legislature. There are still legal battles that are waging over election laws passed in 2011 that will likely be decided in 2013. The lawsuit over Pennsylvania and Texas’s strict voter ID laws continue as well into 2013. However, Texas could look to add additional barriers, such as requiring proof of citizenship to register to vote. How Texas will proceed is likely to depend on the outcome of Arizona v. Inter Tribal Council, a case the U.S. Supreme Court will hear next year to determine whether a state may require individuals registering to vote using a federal form to prove their citizenship.

The Missouri legislature could once again place a constitutional amendment on the ballot. Wisconsin Governor Scott Walker indicated soon after the election in November that he was willing to consider ending Election Day registration but has backed off of that threat after a report was released that stated it would cost the state over $5 million to implement a repeal of what is a very popular voting provision. The legislature may consider making the Government Accountability Board that oversees elections more partisan by having the governor and legislative leaders appoint members. Currently the board is comprised of former state judges.

Finally, in Alaska, Arkansas, North Carolina, and Virginia, there is a possibility that a strict voter photo ID law will be introduced and passed into law. The incoming governor in North Carolina has indicated he would sign a voter ID law that was vetoed by outgoing Governor Bev Perdue. Virginia Governor Bob McDonnell softened a voter ID law passed this year to gain pre-clearance by the Justice Department. Now that the election is over and the legality of pre-clearance is under review by the Supreme Court, some believe he would sign a strict voter photo ID law.