The state-by-state battle over voter eligibility is not only being fought in the court of public opinion, but in actual courtrooms as well.
Since state rules help determine who ends up getting to vote, it’s possible that new voter identification requirements enacted since the 2008 election could make a difference on Nov. 6 in a few states where there are close presidential, House, and Senate contests.
Even as his department’s lawyers are fighting against Texas and other states in court, Attorney General Eric Holder joined the rhetorical melee last week in a speech to the NAACP by comparing voter ID laws to states’ poll taxes which were banned nearly 50 years ago. Holder said some people "would have to travel great distances” to get state-issued ID cards “and some would struggle to pay for those documents necessary to get them." He said, “We call those poll taxes.”
Poll taxes, which had often been used to deter blacks from voting in Southern states, were outlawed in federal elections by the 24th Amendment to the Constitution in 1964 and in state elections by a Supreme Court decision in 1966.
Holder’s analogy drew a sharp retort from Sen. John Cornyn, R-Texas, who said Holder “once again defamed my state, and our state legislature, by equating our common sense voter I.D. law with a poll tax. By invoking the specter of Jim Crow racism, the attorney general is playing the lowest form of identity politics.”
Here’s the state of play on the litigation over who gets to vote in some key states:
New Hampshire (4 electoral votes; 2008 winner: Obama with 54 percent)
Last month the Republican-controlled state legislature overrode Democratic Gov. John Lynch’s veto of a voter ID bill. The state is covered by Section 5 of the federal Voting Rights Act which requires it to get pre-approval -- called “preclearance” -- from the Justice Department or from the federal court in Washington before implementing any changes in voting procedures. A Justice Department official said DOJ’s determination will be issued on Sept. 5.
Republican presidential contender Mitt Romney will be campaigning in the state, which the NBC News Political Unit rates as a toss-up, on Friday.
Wisconsin (10 electoral votes; 2008 winner: Obama with 56 percent)
In two different challenges, two county court judges in Wisconsin have issued injunctions barring enforcement of the voter ID law which Republican Gov. Scott Walker signed last year.
One of those injunctions was issued Tuesday by Dane County Judge David Flanagan, who last year signed the petition to get Walker recalled from office. The recall effort failed on June 5 when Walker won with 53 percent of the vote.
Wisconsin Attorney General J.B. Van Hollen, a Republican, announced Wednesday that the state is appealing Flanagan’s decision. The NBC News Political Unit rates the state a toss-up.
Pennsylvania (20 electoral votes; 2008 winner: Obama with 54 percent)
The American Civil Liberties Union of Pennsylvania and other groups have sued to block enforcement of the voter ID law signed by Republican Gov. Tom Corbett in March.
A trial will begin in state court next Wednesday in Harrisburg, Pa., -before Judge Robert Simpson.
An assessment by Pennsylvania Secretary of State Carol Aichele’s office found that 91 percent of the state’s 8.2 million registered voters have Pennsylvania Department of Transportation issued licenses which are acceptable ID for voting.
Democrats are worried that Pennsylvania's new voter ID law could skew enough of the vote in the key state that it could possibly affect the presidential race.
It also reported that names of nearly 760,000 voters couldn’t be matched between the state’s voter list and the driver’s license database. Aichele spokesman Nick Winkler said this number included some simple name mismatches between one database and another – “Dave Smith” versus “David B. Smith” for example – and that some of the 760,000 do in fact possess valid IDs for voting.
The law also says other forms of ID are acceptable, such as military ID cards, U.S. passports, identification cards from accredited Pennsylvania colleges or universities, Pennsylvania senior care facility IDs, or other photo identification cards issued by the federal, Pennsylvania, county or municipal governments.
Someone without any of those forms of ID can go to one of the more than 70 state Department of Transportation offices and get a state-issued ID.
But David Gersch, an attorney with Arnold & Porter in Washington who is one of the lawyers seeking to have the law blocked, said the state “just doesn’t have the wherewithal to issue that many IDs. It’s just not going to get done” before Election Day.
Gersch said Judge Simpson’s ruling will probably be issued within ten days of the trial’s ending.
The NBC News Political Unit rates Pennsylvania “lean Democratic.”
Florida (29 electoral votes, 2008 winner: Obama with 51 percent)
In the toss-up state of Florida -- where President Barack Obama is campaigning Thursday -- the controversy isn't over voter identification, but over an effort by Republican Gov. Rick Scott and Secretary of State Ken Detzner to have people ineligible to vote removed from the voter rolls.
The Justice Department sued Detzner over this effort, contending that the 1993 National Voter Registration Act doesn't allow states, within 90 days of an election, to conduct a systematic program to remove ineligible people from its voter lists. (Florida’s primary is on August 14.)
Last month, federal district court Judge Robert Hinkle ruled that the way the state first went about its eligibility checking was flawed and “was likely to have a discriminatory impact” on newly naturalized citizens. (About 87,000 Florida residents became naturalized citizens in 2011.)
But Hinkle also said the initial state effort did find a small number of non-citizens who were registered to vote and the evidence “suggests that some actually voted in the past.”
He ruled that a state “can remove an improperly registered noncitizen” from the list of eligible voters, even during the 90-day window prior to an election.
The Department of Homeland Security had refused Florida’s request to cross-check names of people suspected of being ineligible to vote with a federal databases of non-citizens. After Hinkle’s ruling, DHS reversed itself and allowed Florida to use the database.
Five counties in Florida are covered by Section 5 of the Voting Rights Act. The American Civil Liberties Union and a Latino voter mobilization group called the Mi Familia Vota Education Fund filed suit last month to try to stop the Florida voter eligibility effort, contending that the state had failed to get section 5 permission from the Justice Department or from a federal court.
Virginia (13 electoral votes; 2008 winner: Obama with 53 percent)
In Virginia -- yet another state rated a toss-up by NBC News -- Republican Gov. Bob McDonnell signed a law allowing voters who show up at the polling place on Election Day without an acceptable form of ID to cast a provisional ballot and then present an approved ID up until the Friday after the election in order to have their vote counted.
He also directed the State Board of Elections to send every voter in the state a voter card before Election Day so that every registered voter has a valid ID to present at the polls.
Virginia law doesn’t require photo identification to vote. In the state, acceptable forms of voter ID include a Virginia driver’s license, a valid student identification card issued by a Virginia college or university, a copy of a current utility bill, or a paycheck that shows the name and address of the voter.
The Justice Department will issue its determination of whether the new Virginia law complies with section 5 of the Voting Rights Act on Aug. 20.
Texas (38 electoral votes; 2008 winner: McCain with 55 percent)
Like Virginia and Florida, Texas is one of the states covered by section 5 of the Voting Rights Act.
Last week testimony ended in federal district court in Washington in Texas’s suit against Holder, as the state tries to get the court to approve the voter identification law which was enacted last year.
Texas Attorney General Greg Abbott’s office said the Justice Department had “relied on flawed data, inaccurate information and unreliable expert conclusions” to support Holder's decision to block the Texas law.
According to one of the attorneys representing clients who seek to overturn the law, J. Gerald Hebert of the Campaign Legal Center, the three-judge panel indicated it will issue a ruling next month.
Hebert contends that the Texas law is “a solution in search of a problem” and that the state legislature’s motivation in passing it was to suppress voting by Latinos and African-Americans.
Lauren Bean, a spokeswoman for Abbott, said if the federal court denies preclearance, the state will appeal. The NBC News Political Unit rates Texas as “likely Republican.”