When the red clay dust settled after this month’s elections in Oklahoma, nearly seventy five percent of voters had said “yes” to State Question 746, which proposed amendments to the state’s voter identification requirements. As a result, beginning on July 1, 2011, every person appearing to vote in Oklahoma must first present (1) a state, tribal, or federal government-issued photo ID or (2) a voter identification card issued by the County Election Board free of charge. All government-issued photo IDs must have expiration dates, and must not be expired on the date of the election, except for some identity cards issued to people over 65. These requirements apply to all in-person voting, including in-person absentee voting. Any voters who can not present acceptable identification may cast a provisional ballot.
Controversy surrounded the voter ID amendments when they passed the state legislature as a referendum item back in 2009. A year later, before the November 2 referendum could take place, opponents of the measure reanimated the debate by challenging the voter ID requirement in state court. The plaintiffs, represented by Tulsa attorneys Jim Thomas and Marvin Lizama, petitioned a state court for (1) an injunction to keep State Question 746 off the November 2 referendum ballot and (2) declaratory judgment on the constitutionality of the measure. They alleged both procedural and substantive violations of the state constitution, including obstruction of “the free exercise of the right of suffrage” guaranteed by Article 3, Section 5. When the parties discovered that the November 2 ballots had already been printed, effectively mooting the injunction, the plaintiffs agreed to a dismissal without prejudice and stayed the litigation pending the outcome of the November 2 referendum.
Now, having lost the battle at the polls, opponents of the voter ID measure are preparing to wage war in the courts. On November 16, the plaintiffs, represented by Thomas, re-filed their lawsuit in state district court. They are asking the court to (1) declare the voter ID requirement facially unconstitutional under the Oklahoma state constitution and (2) permanently enjoin enforcement of the voter ID requirement (Gentges v. Henry).
In recent years, we have seen a number of legal challenges to voter identification requirements, one of which has traveled all the way to the Supreme Court. Crawford v. Marion County Election Board considered facial Fourteenth Amendment and Voting Rights Act (VRA) challenges to an Indiana voter ID law. The Supremes upheld the Indiana voter ID law in a plurality decision, finding that the state’s interests justified the burden on the right to vote. The plurality declined to apply strict scrutiny because they believed the voter ID law did not amount to a severe burden on the right to vote. Additional cases challenging voter ID laws in other states have been brought since Crawford, but to date none have been successful.
William Groth is one of the attorneys who originally filed the Crawford case, and then followed it to the Supreme Court. After being denied relief in the federal courts, Groth brought suit in Indiana state court, alleging violations of the state constitution. The Indiana Court of Appeals agreed with the plaintiffs and overturned the law. However, in June of this year, the Supreme Court of Indiana reversed them and upheld the Indiana voter ID requirements. Undaunted, Groth says he is now attempting an as applied challenge to the Indiana law.
In an interview for this article, Groth admitted that it has been a “lonely crusade,” and after five years of litigating the Indiana voter ID law, “we’ve become a little discouraged.” Although Crawford and cases like it have garnered some successes, including strong dissenting opinions, most judges are very unreceptive to voter ID challenges. And the Supremes’ decision in Crawford hasn’t helped. Groth believes that Crawford has “cast a long shadow” over subsequent voter ID challenges, even those brought in state courts. He notes that in denying his state constitutional challenges to Indiana’s voter ID law, the Indiana Court of Appeals majority quoted and cited Crawford repeatedly, despite the fact that the basis for that challenge was federal law. The sole dissenter on the court pointed this out, saying “[t]he majority for the most part addresses this case as if [the federal claims in Crawford] were the issue before us today.” None of this bodes well for the future of challenges to voter ID requirements.
After several years in the trenches of voter ID litigation, Groth has accumulated a near encyclopedic knowledge of the relevant precedents, most of which have upheld voter ID requirements. He is well aware that most judges are not convinced voter ID laws have a significant impact on the exercise of the franchise. But he persists in the belief that such laws do adversely affect a small segment of the population, even though the effects probably can not be measured on election day. A number of other practitioners, like Thomas and Lizama, agree with him. When asked what advice he would give to the Oklahoma plaintiffs and others contesting voter ID laws across the country, Groth wished them well and said only: “Good luck.”
Allison Carroll is a third-year student at William & Mary Law School.