Reasonable Restrictions on the Franchise: Georgia's Voter Id Act of 2006 - Joseph M. Colwell

• Jurisdiction: Georgia,United States,Federal
• Publication year: 2012
• Citation: Vol. 63 No. 3

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Reasonable Restrictions on the Franchise: Georgia's Voter Identification Act of 2006

I. Introduction

In Democratic Party of Georgia, Inc. v. Perdue,¹ the Georgia Supreme Court declared constitutional the Voter Identification Act of 2006 (2006 Act),² insofar as it required registered Georgia voters to present valid photo identification at the polls when voting in person in any Georgia election.³ The 2006 Act was the most recent amendment in a series of iterations of section 21-2-417 of the Official Code of Georgia Annotated (O.C.G.A.)⁴-the provision of the Georgia code imposing certain polling requirements for in-person voting.⁵ Each version of the law has generated much controversy as to polling and voting requirements in Georgia, and the law has been challenged in both federal and state court for perceived violations of both the United States and Georgia constitu-

1. 288 Ga. 720, 707 S.E.2d 67 (2011).

2. Ga. H.R. Bill 432, Reg. Sess., 2006 Ga. Laws 3 (codified as amended in scattered sections of O.C.G.A. tits. 21 & 40).

3. Perdue, 288 Ga. at 729, 707 S.E.2d at 75.

4. O.C.G.A. § 21-2-417 (2008).

5. Id.

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tions.⁶ In Perdue, however, the Georgia Supreme Court, in a 6-1 opinion, declared the law constitutional under the Georgia Constitution, holding that the state had an important regulatory interest in preventing fraud at the polls, and the reasonable, non-discriminatory regulations passed constitutional muster.⁷ Interestingly, the court ruled in favor of the state despite a lack of an actual showing of fraud in support of the photo ID law.⁸

II. Factual Background

This lawsuit represented the second state court constitutional challenge to the 2006 Act,⁹ following a complex string of federal and state court challenges to the photo ID law.¹⁰ In Democratic Party of Georgia, Inc. v. Perdue,¹¹ the Democratic Party of Georgia filed a declaratory action against Georgia election officials, challenging the constitutionality of the 2006 Act and seeking permanent injunctive relief against enforcement of the law.¹² Following the trial court's grant of summary judgment in favor of the election officials, the Democratic Party appealed the ruling to the Georgia Supreme Court, alleging a violation of the Georgia Constitution in the form of an undue burden on Georgia voters' fundamental right to vote.¹³

In a 6-1 opinion, the Georgia Supreme Court affirmed the ruling ofthe trial court and found in favor of the Georgia election officials charged with administering the 2006 Act.¹⁴ Writing for the majority, Justice Thompson held that prevention of fraud by impersonation was a legitimate state interest justifying a reasonable restriction on the franchise, finding in favor of the Georgia election officials.¹⁵

6. Perdue, 288 Ga. at 720-22, 707 S.E.2d at 69-70.

7. Id. at 728-30, 707 S.E.2d at 74-75.

8. See id. at 729-30, 707 S.E.2d at 75.

9. Ga. H.R. Bill 432, Reg. Sess., 2006 Ga. Laws 3 (codified as amended in scattered sections of O.C.G.A. tits. 21 & 40).

10. See generally Common Cause/Ga. v. Billups (Common Cause/Ga. III), 504 F. Supp. 2d 1333, 1337-42 (N.D. Ga. 2007).

11. 288 Ga. 720, 707 S.E.2d 67 (2011).

12. Id. at 720, 707 S.E.2d at 69.

13. Id. The Supreme Court of Georgia may exercise direct appellate review over equity cases such as those seeking injunctive relief against the state. GA. CONST. art. VI, § 6, para. 3.

14. Perdue, 288 Ga. at 730, 707 S.E.2d at 75.

15. Id.

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III. Legal Background

At the turn of the twenty-first century, a troubling tone was set for the conduct of elections in the united States with the now infamous 2000 presidential election between then Texas Governor George W. Bush and Vice President Al Gore. Controversies surrounding that election -especially the conduct of Florida election officials with respect to "butterfly" ballots and inaccuracies in vote-counting-gave rise to harsh criticism for both the legal treatment ofthe outcome ofthat election and the way in which the voting process itself had been conducted.¹⁶

It is likely that episodes similar to the 2000 presidential election precipitated the recent phenomena in stringent state regulation of elections, such as required presentation of valid photo identification at polling precincts.¹⁷ Georgia is not unique in its passage of the Voter ID Act of 2006;¹⁸ this state joins a host of others that have enacted similar photo ID laws with varying degrees of stringency.¹⁹ The following analysis provides a general overview of the federal courts' treatment of state voting regulations and the scrutiny applied to such laws, providing the background to the state constitutional challenge in Democratic Party ofGeorgia v. Perdue.²⁰

A. Federal Court Treatment of State Voting Regulations

Article I of the united States Constitution allocates the power to facilitate the time, manner, and place of both federal and state elections to state legislatures.²¹ The united States Supreme Court has recognized that the Elections Clause provides broad power for the state facilitation of elections so long as that power does not infringe upon other constitutional provisions, particularly those pertaining to individual voting rights.²² That broad power under the Elections Clause includes state laws controlling the "registration, supervision of

16. See generally Jonathan K. Van Patten, Making Sense of Bush v. Gore, 47 S.D. L. Rev. 32 (2002) (discussing the Florida recount controversy, the Supreme Court's intervention, and its aftermath and implications).

17. See Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L. Rev. 689, 689-90 (2006) (discussing the social response to the election and the legal reaction in the form of voting regulation).

18. Ga. H.R. Bill 432, Reg. Sess., 2006 Ga. Laws 3 (codified as amended in scattered

sections of O.C.G.A. tits. 21 & 40).

19. See Wendy R. Weiser & Lawrence Norden, Brennan Ctr. for Justice, Voting Law Changes in 2012 4-5 (2012).

20. 288 Ga. 720, 707 S.E.2d 67 (2011).

21. U.S. Const. art. I, § 4.

22. See Cook v. Gralike, 531 U.S. 510, 523-24 (2001).

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voting, protection of voters, [and] prevention of fraud and corrupt practices."²³ The genesis of state photo ID laws-requiring a showing of one or more forms of government-issued photo ID-is found in this broad interpretation of the Elections Clause.

Two cases from the united States Court of Appeals for the Seventh Circuit, articulated by Judge Posner, help to provide an overview of the federal courts' treatment of such state voting regulations, in particular the recent trend in state photo ID laws. In Griffin v. Roupas,²⁴ Judge Posner wrote that the Elections Clause, without infringing upon other constitutional provisions, permits states to draft "extensive restrictions on voting," which, by necessity, will affect the ability of some minority groups to cast a ballot.²⁵ The crucial issue in cases challenging state voting restrictions, though, is not the extent to which such groups are disenfranchised but, rather, whether the "resulting exclusion[s] are reasonable given the interest the restriction serves."²⁶ In Griffin, a group representing working mothers challenged an Illinois law providing narrow qualifications for absentee voting because the law did not include a qualification for general hardship, which, they argued, should be guaranteed to them under the United States Constitution.²⁷ Recognizing that striking the balance between preventing voter fraud and enabling voters to cast their ballots is a state legislative function, Judge Posner wrote that the Illinois absentee provisions were not so facially egregious and inimical to due process or equal protection as to warrant judicial interference.²⁸

Another Seventh Circuit case, Crawford v. Marion County Election Board,²⁹ dealt with a constitutional challenge to Indiana's photo ID law requiring presentation of valid government photo ID when voting in person in any Indiana election.³⁰ Affirming the Seventh Circuit, the

23. See id. (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)).

24. 385 F.3d 1128 (7th Cir. 2004), cert. denied, 544 U.S. 923 (2005).

25. Id. at 1130.

26. Id. (citing Burdick v. Takushi, 504 U.S. 428, 438-42 (1992)).

27. Id. at 1129.

28. See id. at 1132 (noting that "unavoidable inequalities in treatment, even if intended in the sense of being known to follow ineluctably from a deliberate policy, do not violate equal protection").

29. 472 F.3d 949 (7th Cir. 2007).

30. Id. at 950; IND. CODE § 3-10-1-7.2 (Supp. 2008). In Crawford, the Seventh Circuit refused to apply strict scrutiny-requiring a narrowly tailored law advancing a compelling state interest-to Indiana's law, noting that the Supreme Court rejected that level of scrutiny in an earlier case because it would impermissibly bind the states' broad Elections Clause authority. 472 F.3d at 952 (citing Burdick v. Takushi, 504 U.S. 428, 433-34 (1992)). The court upheld Indiana's law on the grounds that the state advanced a reasonable interest in preventing voter fraud against the slight burden on Indiana voters. Id. at 952-

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United States Supreme Court held that preventing voter fraud is a "valid neutral justification[]" sufficiently supporting the Indiana voting law.³¹ Interestingly, the Supreme Court acknowledged in Crawford that there was no evidence or any cases ofactual fraud by impersonation ever occurring in the state of Indiana.³² Nonetheless, the Supreme Court rejected the appellant's argument that criminal laws against voter fraud provided adequate protection, making Indiana's law unneces-sary.³³ The Court held further that even though no actual examples of fraud by impersonation could be shown in Indiana, the fact that such fraud occurs more generally in other American elections gave that justification legitimacy.³⁴ Avoiding the political question of whether the Indiana law was good policy, the Court...