This column by ACRU Policy Board member Hans von Spakovsky was published December 13, 2016 by National Review.
In a unanimous decision, a three-judge panel of the Fourth Circuit Court of Appeals on Tuesday upheld Virginia’s voter-ID law. The lawsuit, bankrolled largely by George Soros and filed by the Democratic Party of Virginia, had contended that Virginia’s law violated the Voting Rights Act and the First, 14th, 15th, and 26th Amendments to the Constitution. In the end, all those numbers added up to just one more loss for Marc Elias, Hillary Clinton’s campaign lawyer, who brought the lawsuit.
In Lee v. Virginia State Board of Elections, the court held that not only does the photo-ID law “not impose an undue burden on minority voting, there was no evidence to suggest racially discriminatory intent in the law’s enactment.” Therefore, there was no violation of Section 2 of the Voting Rights Act and no constitutional violation either.
The court’s description of the evidence presented by Elias and the plaintiffs shows just how frivolous this case was. Elias produced 14 “voter-witnesses” to support the Democratic party’s claims, yet as the district court found, “none of the voter witnesses was actually denied his or her right to vote.” In other words, out of the more than 5.6 million registered voters in Virginia, the Democratic party couldn’t find a single one who was unable to vote because of the law. So much for the Left’s constantly repeated theme that voter-ID laws “suppress” votes.
Five of the witnesses “forgot to bring their IDs with them when they went to vote” and were allowed to cast provisional ballots. All of their ballots were counted after they sent copies of their IDs to the registrar. Another witness did not have an ID but subsequently got the free ID issued by Virginia “and then cast his ballot.” So apparently, according to the plaintiffs, having to cast a provisional ballot (that gets counted) instead of a regular ballot because you forgot to bring your ID to a polling place violates the Constitution and the Voting Rights Act!
The remaining witnesses either didn’t vote at all or, after casting provisional ballots, failed to “cure” them by sending in copies of their IDs. One witness chose not to cure his provisional ballot “because his candidate of choice had been declared the winner.”
After one witness told the county registrar that she couldn’t drive herself to the registrar’s office to obtain her free photo ID, “the registrar sent someone to her house, who then photographed her for her new ID, and she received her free photo ID.” Somewhere in there was a constitutional violation, according to Elias.
The evidence that the Virginia legislature passed the ID law with the intent to discriminate was almost equally pathetic. One of the alleged proofs of racial discrimination was that the law had passed almost entirely along party lines (although at least one Democrat and one independent voted for it). Another was that a state senator didn’t want to allow expired IDs to qualify and that several other legislatures controlled by Republicans had enacted voter-ID laws. A third proof was simply the assertion that there was no rational reason to require a voter ID other than to discriminate.
Even discounting the fact that Virginia provides a free ID for anyone who doesn’t have one, the difference in ID possession between blacks and whites in Virginia is only 2.2 percentage points: 94.6 percent of blacks have ID vs. 96.8 percent of whites. But as the court said, minorities in the state have the same opportunity as other Virginians to obtain a free ID, and the plaintiffs failed to prove that minorities “have less of an opportunity than others to participate in the political process.”.
Lawyers in this lawsuit couldn’t produce a single Virginian who didn’t have an ID or who couldn’t easily get the free ID provided by the state.
Moreover, the court observed, the ID-law was passed “through the normal legislative process, and that process was unaccompanied by any facts or circumstances suggesting the presence of racially discriminatory intent.” This made the Virginia legislative process “in no way like” the process in North Carolina over its voter-ID law, which a different panel of the Fourth Circuit held as invalid in July in NAACP v. McCrory. Thus, this panel did not have to follow the other Fourth Circuit panel’s decision over the North Carolina law.
The court also pointed out that the public overwhelmingly supports such legislation and the legislature had a valid basis for implementing an ID requirement: “the prevention of voter fraud and the promotion of public confidence in the voting system.” This was recognized by the U.S. Supreme Court as a valid reason when it upheld Indiana’s voter-ID law in 2008. Virginia’s law “imposes a lighter burden than did the Indiana law.” In fact, Virginia “went out of its way to make its impact as burden-free as possible.”
Probably the silliest argument made by Elias in this lawsuit was that an ID requirement violated the 26th Amendment, which lowered the voting age to 18, because it placed an undue burden on “young people.” The court concluded that the Democratic party failed to show that the Virginia law was intended “either in its enactment or implementation, to discriminate against young voters.” This was a particularly odd claim given that Virginia accepts student photo IDs from both public and private universities in the state.
One final note. Those opposed to voter-ID laws consistently claim that huge numbers of American voters have no ID and no ability to get one. Yet when it comes to actually producing evidence to support that claim, opponents always fall short. In fact, in this lawsuit, they couldn’t produce a single Virginian who didn’t have an ID or who couldn’t easily get the free ID provided by the state.
This lawsuit was an enormous waste of time and resources. Fortunately, Virginia attorney general Mark Herring (D) did the right thing in this case. He recused himself from defending the Virginia law because he had voted against it when he was a state legislator. Instead, he hired a private law firm, Arent Fox, to defend the law.
Two of Arent Fox’s lawyers, Thor Hearne and Stephen Davis, did a terrific job championing what the overwhelming majority of Americans — of all colors and political stripes — think is a common-sense reform that helps ensure election integrity: requiring voters to prove that they are who they say they are when they cast their ballots.