By Scott Lauck
Missouri is not the first state in the nation to pass a law requiring voters to show a photo ID at the polls, nor is it the first to be sued for doing so. When Democrats in Missouri filed suit earlier this month claiming the Missouri's Voter Protection Act severely burdens the right to vote, they joined their brethren in Georgia and Indiana, who have already fought similar court battles.
Those two prior court opinions would seem to give opponents of the Missouri law mixed chances. The Georgia law was struck down — twice — while the Indiana law was upheld. The essential difference between them boils down to the scrutiny the two courts applied to each states' voter ID law — in other words, how much benefit of the doubt the courts were willing to give the state in crafting such regulations. In the end, Indiana's court found its state's professed need to tackle voter fraud to be reasonable, while the Georgia court did not.
Plaintiffs lawyers in the Missouri case don't agree with the reasoning in Indiana and clearly favor the Georgia outcome, citing it six times in their supporting memorandum.
But Missouri's plaintiffs aren't precisely modeling their proposal on either case. The Missouri battle is being fought in state court on state constitutional grounds, instead of in federal court over the U.S. Constitution. While those two documents are similar, Missouri's constitution does something the federal one does not: it offers, in Article VIII, Section 2 and elsewhere, explicit protection of the right to vote.
That fact, plaintiffs' lawyer Don Downing said, could make Missouri's case stronger than either Indiana's or Georgia's.
"We believe that under Missouri's Constitution, there's no question that strict scrutiny is required here," said Downing, an attorney with Gray, Ritter & Graham, PC, in St. Louis.
Not surprisingly, Republican supporters of the law disagree vehemently with such an interpretation.
Thor Hearne, an attorney with Lathrop & Gage, LC, in St. Louis, is an expert in election law who has close ties to the Republican Party. He said all election regulations, from making voters register to requiring them to leave their homes to go to a precinct, are "burdens" that the courts have upheld.
"This argument that this is somehow an impermissible burden to identify yourself in a reliable way with government issued ID, I think, is both factually specious and legally specious," he said, adding: "If you have election system that, quote, 'eliminates every burden on the right to vote,' you might as well put the ballot box out on the street corner and let people just put their votes in."
As of last week, attorneys for the Secretary of State's and Attorney General's offices had filed appearances to defend the Voter ID law. Plaintiffs hope to get a hearing in Cole County Circuit Court sometime later this month, before the law's Aug. 28 effective date.
'Not narrowly tailored'
"Strict scrutiny" simply means that the state has to show that the law is necessary to bring about some compelling state interest - a standard that often brings about the law's demise. Most laws challenged in court don't fall into that category; the court simply determines if it was a reasonable area for the legislature to assert itself.
The federal judges in the Georgia and Indiana cases did not apply the same strict scrutiny that Downing is seeking in Missouri. Instead, both relied on a standard of review set forth in a 1992 U.S. Supreme Court decision, Burdick v. Takushi. Under that case, judges apply a more "flexible" standard toward voting laws, deciding whether the "character and magnitude of the asserted injury to the right to vote is significant," compared to the state's compelling interest.
In the Georgia case, Judge Harold Murphy of the U.S. District Court of Northern Georgia used that standard to issue a preliminary injunction last month preventing the law's being enforced for the state's July 18 primary elections. Murphy was the same judge who last year enjoined an earlier version of the law.
Even supporters of voter ID now agree that the 2005 Georgia law had problems. It required voters to pay for their IDs and was struck down as a "poll tax." But this year the Georgia General Assembly fixed those problems, agreeing to issue the cards for free and expand their availability.
Despite those changes, the judge issued a 195-page injunction, saying the case still failed the constitutional test and was "not narrowly tailored to the State's proffered interest of preventing voting fraud."
Downing sees a lot of hope in that outcome, arguing that it should be the precedent if Missouri's courts don't apply the strict scrutiny standard.
"Other than the fact that the Georgia case was based on the U.S. Constitution and ours is based on the Missouri Constitution, there's not much else that's different," he said.
However, Hearne said Georgia's case is not quite resolved, since it is merely an injunction, not a judgment. Hearne also said that, in his opinion, the Georgia case had become "politically stigmatized" and that the plaintiffs had shopped around for a judge "known as a liberal activist."
At any rate, Murphy's injunction applied only to the state's July 18 primary and subsequent run-off election, held last Tuesday. In his order, Murphy said that should the state adequately educate its citizens about the voter ID law's requirements, "the statute might well survive a challenge..."
A new education campaign is just what Georgia officials intend to do, according to Claud L. "Tex" McIver III, an Atlanta attorney and vice-chairman of Georgia's State Election Board. McIver, an ardent supporter of voter ID provisions, said he felt "aghast" and "deceived" when Murphy approved a second injunction against the law.
"The '06 law literally was written to comply with the judge's order - to kiss him on the bottom, top to bottom," he said. Although he's confident the law is OK under both the U.S. and Georgia constitutions, he worries about the next legal go-around.
"If he stands his ground on this, there is not a legislative fix to this, and it's going to require a state constitutional amendment," McIver said.
For their part, the plaintiffs are confident that the law's flaws are too deep.
"Educating voters on a statute that is otherwise unconstitutional isn't going to change the constitutional issue one iota," plaintiffs' attorney Emmet Bondurant of Atlanta said.
A 'wet Kleenex prank'
Indiana's case began under circumstances very similar to the Georgia case (or Missouri's, for that matter). Republicans passed the measure largely on party lines as an anti-fraud measure, while Democrats bitterly opposed what they said would disenfranchise voters - many of whom might be expected to vote for Democrats.
As in the other states, a Democrat-backed lawsuit was filed in federal court against the 2005 law, claiming a variety of constitutional violations. But the outcome in Indiana couldn't have been more different from that in Georgia.
In April, Judge Sarah Evans Barker of Indiana's Southern District granted a summary judgment in favor of the state, upholding the voter ID law as valid and allowing its enforcement in that state's May primaries.
In a scathing 115-page opinion, Barker said that "Despite apocalyptic assertions of wholesale voter disenfranchisement, Plaintiffs have produced not a single piece of evidence of any identifiable registered voter who would be prevented from voting..." Although Barker conceded that "such individuals exist somewhere," their rarity was a "testament to the law's minimal burden and narrow crafting." At one point, she characterized the lawsuit as a "'wet Kleenex' prank" in which the plaintiffs were "throwing facts against the courthouse wall simply to see what sticks."
Under Barker analysis, Indiana's legislature had a right to address voter fraud as it saw fit and noted that fraud had been detailed throughout the United States - citing, ironically enough, instances of voter fraud in St. Louis in the 2000 presidential election and press reports of problems in Georgia.
"We have no basis to conclude that the General Assembly's legislative judgment in enacting (the voter ID bill) was grossly awry," she wrote.
The case has since been appealed to the 7th Circuit Court of Appeals. Calls for comment to the Indiana plaintiffs' attorney, Kenneth Falk of the American Civil Liberties Union, were not returned.
Plaintiffs in both Missouri and Georgia disagreed with the outcome of the case, which was not favorable to their position and which was not cited in Missouri's brief.
"What the Indiana court determined primarily was simply that the plaintiffs hadn't met their burden to establish that anybody would have been harmed there," Downing said.
Bondurant, in Georgia, said he expects "the other side will be citing (the Indiana case) up and down the wazoo" when his suit moves forward. He, too, said he disagreed with the decision.
"Frankly, I think the application of the law is incorrect in that case, even on the poor record they made," adding that the judge "was far more willing to give deference to legislative judgment than I think the law permits in this area."
But Hearne, who wrote an amicus brief defending the law in the 7th Circuit, said there's a reason why the Indiana lawsuit failed, and why that law should ultimately be upheld.
"The problem wasn't that they didn't do a good job," he said. "The problem was they did a very good job, but they don't have the law or the facts to support their position."
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August 14, 2006
