Different States, Different fates for Voter I.D. laws.

August 30, 2012

As my colleague pointed out two weeks ago, a Pennsylvania State Court Judge rejected a preliminary challenge the State’s new Voter I.D. law.  The decision is being appealed, but the prospects are unknown.

Texas is currently embroiled in similar litigation.  However, instead of defending a case by a challenger, Texas had to proactively sue the federal government in order to defend its law.  And the case will not be heard by a Texas State judge; instead, it’s pending before three federal judges in the Federal District court for the District of Columbia (docket number: 1:12-cv-00128).  South Carolina has a similar case pending in D.C., DN: 1:12-cv-00203 (South Carolina’s 2012 voting issues deserve a post of their own, which I hope to write eventually).

Why is the challenge in Pennsylvania proceeding so different from those in its sister states?  The underlying laws are not particularly different; compare TX LEGIS 123 (2011) with 2012 Pa. Legis. Serv. Act 2012-18.

The difference, of course, comes from the Voting Rights act, which celebrated its 47th anniversary earlier this month.  Section 5 of the act, codified at 42 USCA 1973c, requires certain jurisdictions to obtain approval from either the Attorney General or a Federal Court before changing their election procedures.  Texas and South Carolina are included on the list that must pre-clear changes, while Pennsylvania is not.  Court cases seeking pre-clearance cannot be brought in the affected state; instead, they must be brought in the District of Columbia.

To see some other places where the Voting Rights Act has popped up recently, I ran the following search in All Federal Trial Court Documents on WestlawNext:

advanced: TE(voting /3 rights /3 act) & DA(aft 01-01-2012)

I saw 99 results.  A quick look at some of the district courts in which they were filed shows the national scope of the VRA, though a large plurality were filed in the District of Columbia, demonstrating that court’s central role in pre-clearance suits.

I was curious to see if 99 was a result of an election year bump in litigation, so I tried the following two ‘control’ searches:

advanced: TE(voting /3 rights /3 act) & DA(aft 12-31-2010 & bef 08-27-2011)

Result: 33 Documents

advanced: TE(voting /3 rights /3 act) & DA(aft 12-30-2007 & bef 08-27-2008)

Result: 69 Documents

These searches show a significant increase from last year over this year.  They also show a smaller, but still significant increase over the most recent presidential election year.  The ebbs and flows of VRA litigation would be a fascinating subject for further study.