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Whose votes count, whose don't? The legal landscape before Election Day

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Key legal battles emerged in Pennsylvania, Wisconsin, Texas, and South Carolina.

In Pennsylvania, a Republican judge determined that the commonwealth’s new ID law did not violate the Pennsylvania constitution, but he also ruled that there was not enough time left before the election for the state to issue identification cards to those residents lacking them. The judge ruled that election officials could ask for photo ID at the polls, but that any voter failing to provide it must be given a chance to cast a regular ballot anyway.

In Wisconsin, two Democratic judges ruled that the voter ID law in that state violated the Wisconsin constitution. Both issued injunctions permanently blocking enforcement of the law. State officials sought an expedited appeal to the state Supreme Court, but the request was denied. Appeals are pending.

Officials in Texas and South Carolina defended their ID laws by arguing that they were patterned on the Indiana statute upheld by the US Supreme Court.

But because both of those states are listed as covered jurisdictions under Section 5 of the Voting Rights Act (VRA) – because of a past history of racial discrimination in voting – they were required to submit their voter ID laws to Washington for preapproval.

The Obama Justice Department objected to the ID laws in both states. The issue went to a special three-judge court in Washington.

Under Section 5 of the VRA, a covered jurisdiction must prove that its proposed new election law will not have a discriminatory retrogressive impact on minority voting. 

That is a substantially more difficult standard to meet than the broader constitutional test established by the US Supreme Court in the Indiana voter ID case.

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