Lee v. Virginia State Board of Elections (Lawyers Weekly No. 001-179-16, 37 pp.) (Niemeyer, J.) No. 16-1605, Dec. 13, 2016; USDC at Richmond, Va. (Hudson, J.) 4th Cir.
Holding: The 4th Circuit upholds Virginia’s voter-ID law, which requires voters to present photo identification when they vote or shortly thereafter, against plaintiffs’ challenges under the Voting Rights Act and the federal Constitution.
The Virginia law, Va. Code § 24.2-643(B), provides that all voters must present a photo identification to cast a ballot in all elections, but if a voter fails to present a photo ID, she may cast a provisional ballot subject to cure by presenting a photo identification in person, by fax or by email within three days after the election. A broad range of photo identification satisfies the ID requirement, including publicly and privately issued forms of identification, whether current or recently expired; and if a voter does not possess an acceptable form of ID, the state board of elections must provide one to the voter free of charge and without any requirement that the voter present documentation.
Plaintiffs have simply failed to provide evidence that members of the protected class have less of an opportunity than others to participate in the political process. Under the law, as borne out by the record, every registered voter who shows up to a local polling place on the day of the election has the ability to cast a ballot and to have the vote counted, even if the voter has no identification. When a voter shows up without identification, he or she is able to cast a provisional ballot, which can be cured by later presenting a photo ID. If the voter lacks an acceptable form of identification, the voter can obtain a free voter ID with which to cure the provisional ballot. Because, under Virginia’s election laws, every registered voter in Virginia has the full opportunity to vote when election day arrives, SB 1256 does not diminish the right of any member of the protected class to have an equal opportunity to participate in the political process and thus does not violate § 2 of the Voting Rights Act.
We conclude that § 2 does not sweep away all election rules that result in a disparity in the convenience of voting. Where, as here, Virginia allows everyone to vote and provides free photo IDs to persons without them, we conclude that SB 1256 provides every voter an equal opportunity to vote and thus does not violate § 2.
Nor have plaintiffs shown that SB 1256 was enacted with the intent to discriminate on the basis of race, in violation of the 14th and 15th Amendments to the U.S. Constitution. Virginia presented some evidence of voter fraud, as well as conclusions reached by the Carter-Baker Commission (chaired by former President Jimmy Carter and former Secretary of State James Baker), which favored use of photo identification.
SB 1256 was enacted to streamline Virginia’s election laws by imposing on all voters the requirements that the federal Help America Vote Act, 42 U.S.C. § 15483, imposes on some. In enacting a photo identification requirement, the Virginia legislature went out of its way to make its impact as burden-free as possible. It allowed a broad scope of IDs to qualify; it provided free IDs to those who did not have a qualifying ID; it issued free IDs without any requirement of presenting documentation; and it provided numerous locations throughout the state where free IDs could be obtained. We conclude the district court’s factual findings with respect to this issue were not clearly erroneous.
SB 1256 does not place an undue burden on the constitutionally protected right to vote, nor does it violate plaintiffs’ rights under the 26th Amendment.