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Analysis: How opponents held back the voter ID tide

People fill the waiting area of a Pennsylvania Department of Transportation office in Philadelphia as they wait to get a voter ID card, Sept
People fill the waiting area of a Pennsylvania Department of Transportation office in Philadelphia as they wait to get a voter ID card, Sept

By Andrew Longstreth

NEW YORK (Reuters) - A Pennsylvania judge's decision to block a voter ID law on Tuesday is only the latest in a series of setbacks for new state laws that require voters to show identification before voting.

Voter ID laws have also been turned back in Wisconsin and Texas this year and some others may also not go into effect before the U.S. presidential election just five weeks away.

The fact that tighter voting laws are faring poorly in court was not expected by some legal experts. That's because in 2008, the U.S. Supreme Court upheld a voter identification law passed by Indiana, leading many experts to conclude that it would be hard to challenge such laws in court.

Since the last presidential election, some 15 states have passed or tightened legislation requiring people to identify themselves before voting.

Defenders of the laws, mostly Republicans, say the laws are needed to prevent people from fraudulently impersonating registered voters at the election booth. Opponents, mostly Democrats, complain that obtaining identification documents is an undue burden that could disenfranchise the poor, minorities and the elderly.

In its 2008 decision, the Supreme Court found that a 2005 Indiana law requiring voters to identify themselves was not an undue burden.

But in the recent wave of voter ID laws, opponents have successfully marshaled a series of arguments, including showing why the situation in individual states is different from the one in Indiana.

ORDERED TO RECONSIDER

In his ruling on Tuesday, state Judge Robert Simpson put a temporary block on Pennsylvania's law until after the November 6 election.

Simpson had previously upheld the law, citing the 2008 Supreme Court decision in Indiana. Challengers then filed papers with the Pennsylvania Supreme Court noting that, unlike in Pennsylvania, the Indiana law was passed about three years before the next presidential election, giving citizens plenty of time to acquire IDs. Last month, the Pennsylvania Supreme Court ordered Simpson to reconsider.

In Tuesday's ruling, Simpson said he accepted that not enough identification cards - either a state driver's license or non-driver ID card or a government employee ID - would be issued in time for the ballot.

Voting rights advocates in Wisconsin also argued that the situation there was different from Indiana's. Wisconsin's law, which specifies eight forms of acceptable identification, is more restrictive than Indiana's law, they said, and the Supreme Court decision in Indiana did not apply to Wisconsin.

In July, state Judge David Flanagan blocked the law. He found that the Indiana case, which relied on the U.S. Constitution, was not relevant to the Wisconsin challenge, which involved claims made under Wisconsin's constitution.

The Wisconsin judge also contrasted the lack of evidence offered by the plaintiffs in the Indiana case to the detailed record presented before him. "Here, the showing by the plaintiffs has been substantial and entirely credible," Flanagan wrote.

During the Wisconsin trial, a political scientist had testified that more than 330,000 eligible Wisconsin voters do not have forms of identification required by the law.

Ruthelle Frank, of Brokaw, Wisconsin, and a voter since 1948, testified in a deposition that she was refused a photo ID at the Bureau of Motor Vehicles for lack a proper birth certificate.

Last week the Wisconsin Supreme Court denied a request by Wisconsin Attorney General J.B. Van Hollen to hear an appeal of Flanagan's and another judge's decisions halting the law. In a statement, Van Hollen conceded that it was likely the law would not go into effect before the election.

VOTING RIGHTS ACT

Texas has also tried to use the Indiana case in defending its voter ID law. But Texas faced a steeper legal challenge than Indiana from the outset. Unlike Indiana, Texas is covered by the Voting Rights Act of 1965 and must seek permission from the federal government before making changes to its voting laws.

The Justice Department opposed the Texas law and, last month, a three-judge panel of the U.S. District Court in Washington blocked it. The opinion, written by Judge David Tatel, concluded that the record introduced by the Justice Department showed that the law would discriminate against minorities.

Texas State Senator Carlos Uresti testified that many people in his district, which he said is about 70 percent Hispanic and 5 percent African American, lived 100 to 125 miles away from the closest state office offering IDs. The court concluded it was too much to ask.

"Even the most committed citizen, we think, would agree that a 200 to 250 mile round trip - especially for would-be voters having no driver's license - constitutes a ‘substantial burden' on the right to vote," Tatel wrote.

Texas Attorney General Greg Abbott has said that he plans to appeal the ruling to the U.S. Supreme Court, but that case is not expected to be resolved before the November 6 election.

Alabama and Mississippi, two other states covered by the Voting Rights Act, also will not see their laws go into effect before the election. Alabama's law does not take effect until 2014 and both states' laws are still awaiting approval from the Justice Department.

In South Carolina, another Voting Rights Act state, a voter ID may also not be cleared in time for November 6. The Obama administration blocked the law in December, arguing that it would make voting more difficult for blacks.

Last week, Christopher Bartolomucci, a lawyer for South Carolina, argued the law would not have a discriminatory effect and urged a panel of judges in Washington to let the law go into effect. But he did not insist that a ruling come in time for the election.

"We believe the court should neither delay its decision nor rush a decision," he said.

Two other battleground states, Virginia and New Hampshire, have also passed voter ID laws, but those laws have not been contested in court, in part because they were less restrictive than those passed in other states, voting rights activists said.

While new voter ID laws have faced a tough time in the courts this election year, supporters say they are pushing to get the laws implemented in time for midterm elections in 2014 and the next presidential election, in 2016.

For example, Wisconsin Attorney General Van Hollen said he still believed his state's voter ID law is legal. "I will continue the battle to have the law upheld," Van Hollen said.

And in Pennsylvania, State Attorney General Tom Corbett said on Tuesday that while he would not appeal Simpson's temporary block, he still supports the voter ID law.

Meanwhile, the Voting Rights Act, which affects voter ID laws in Alabama, Mississippi, South Carolina and Texas, may also come under scrutiny. The U.S. Supreme Court will decide soon whether to hear challenges to that law.

(Editing by Eddie Evans and Sandra Maler)

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