This article originally appeared in The Washington Times.
By Alex Swoyer
The 2010 GOP wave swept in a number of new governors and state legislators eager to crack down on voter fraud with stricter voter ID, registration and early-voting laws.
But federal courts have begun to push back, finding in some cases that the laws were too broad and, in at least a few instances, that lawmakers were discriminating against minorities by tamping down their ability to cast ballots.
The latest defeat for the GOP lawmakers came last week when the Supreme Court allowed to stand an appeals court ruling that North Carolina’s law was fatally flawed.
Other casualties are a North Dakota law struck down last year, a 2012 Pennsylvania law struck down in 2014 and laws in Texas and Wisconsin, which drew adverse rulings last year, forcing those state legislatures to rewrite their voting rules after judges said they discriminated against minorities.
“In Texas, North Carolina and North Dakota, in particular, courts have been looking at the records in the case and found that there’s not substantial basis for these laws to be passed in terms of solving actual problems, and they’re blocking a lot of legitimate voters,” said Johnathan Brater, counsel at the Brennan Center’s Democracy Program.
Yet laws have survived in many other states, including Virginia, Georgia, Indiana, South Carolina and Arizona.
“It’s really kind of a mixed bag,” said Rick Hasen, a law professor at the University of California, Irvine, who said every legal challenge is different and it’s difficult to generalize.
For example, the same appeals court that struck down North Carolina’s law upheld Virginia’s law. There were some differences in the statutes, but the panel in the North Carolina case — all Democratic-appointed judges — found discrimination, while the panel in the Virginia case — all GOP-appointed judges — didn’t find discrimination.
Dan Donovan, the lead attorney for North Carolina’s NAACP, which challenged the state’s law, said the Supreme Court’s denial to hear the case last week was a huge victory.
“If you can keep a certain group from not voting, it really matters,” said Mr. Donovan, a partner at Kirkland & Ellis.
Both sides of the debate say their motives are pure and question the other side’s intentions. The fight, however, could end up playing a role in expanding or contracting the pool of voters able to cast ballots in an election.
The issue took on a new edge after last year’s presidential contest, when the Electoral College winner, President Trump, said he would also have won the popular vote save for millions of illegal votes he said were cast.
Voting rights groups say he grossly overestimated the scope of fraud, but the president’s supporters say nobody has ever studied the issue comprehensively enough to say for sure.
Mr. Trump earlier this month announced a voter-integrity commission designed to look at both voter fraud and barriers to voting.
Logan Churchwell, communications director at the Public Interest Legal Foundation, said overall, states’ new anti-fraud laws are holding up.
“A lot is being done to generate the sense that voter ID laws are starting to fail,” said Mr. Churchwell. “Unless you follow closely every legal twist and turn in these cases, you’re not really getting the whole picture.”
He said North Carolina is the only state where a voter ID law has been knocked out because of a lawsuit.
Hans von Spakovsky, a senior fellow at The Heritage Foundation, said Georgia, Indiana, South Carolina, Kansas, Virginia and Arizona have all had their laws upheld in the courts.
He questioned the motives of those suing to block the laws.
“Some of the opponents are, frankly, bad actors who don’t want an ID provision because it’s going to make it harder for them to organize cheating in elections,” he said.
But Jeanette Senecal, senior director of elections at the League of Women Voters, said they’re fighting for voters’ rights.
She cautioned states against trying to revive or rewrite laws that have suffered blows in the courts, saying it costs taxpayers more money to keep fighting.
“They could come back with a new law that then could be challenged through the court system again,” Ms. Senecal said.
