By: Kelsey Dolin

On September 22nd, the 4th Circuit Court of Appeals heard oral arguments in the second round of Virginia Democrats’ challenge of the State’s voter ID law. The appellants contend that the law unfairly burdens minorities and young people’s ability to vote because these groups are less likely to possess the requisite photo ID. The District Court previously upheld the law.

Voter ID laws have become increasingly more common since the United States Supreme Court decided Shelby County v. Holder, which invalidated the Voting Rights Act § 4 preclearance formula. States that previously had to submit substantial changes in their election laws to the federal government for approval are now only restricted by § 2, which requires a plaintiff to bring suit after the law is implemented. Thus far, out of the sixteen states that have implemented voter ID laws, only North Carolina’s has been overturned and will not affect the upcoming election, although challenges to other states’ laws are currently making their way through the courts.

Virginia’s voter ID law is generally considered to be less stringent than many other states’ laws that are currently being challenged. Virginia Code § 24.2-643 requires citizens present a photo ID before they are permitted to vote. Acceptable forms of ID include any ID issued by the state of Virginia or the United States, a student ID from a Virginia college or university, or an employee ID. Any ID presented must contain a photograph of the voter. If a voter does not have a photo ID, a provisional ballot must be cast, and the voter then has until noon on the Friday after the election to present a photo ID to the local general registrar’s office.

The District Court heard the Virginia voter ID case in February of 2016. After examining the circumstances surrounding the passage of the law, the effects of the law, and the reasoning behind it, the court determined that the law did not violate the 14th Amendment or § 2 of the Voting Rights Act. In determining that the law did not violate the Voting Rights Act, the court found that it was equally burdensome on all voters, and the public support for the law was evidence of its necessity. It also found that the law was not “invidiously discriminatory,” and that the government’s interest outweighed the burdens imposed to pass a rational basis level of scrutiny, and thus did not violate the 14th Amendment.

The 4th Circuit Court of Appeals then agreed to weigh in on the case. Certiorari was granted before the North Carolina voter ID case was decided, but much of the oral arguments focused on whether the Virginia law can be sufficiently distinguished from the North Carolina law that the same court overturned just two months earlier. In the North Carolina case, the legislature decided the day after the Shelby County decision was issued to move forward with a bill that incorporated voting impediments that were previously cut because they were likely too restrictive to pass preclearance; it also requested data on how the measures would affect minority voters and then targeted the law to implement the measures that most affected minorities. These facts led the court to its ultimate decision to overturn the District Court’s ruling and hold the law unconstitutional.

The appellants in the Virginia case argued that the facts should be reexamined in light of the North Carolina decision. The appellees countered that the District Court judge in the Virginia case reviewed the salient facts in a more direct way than the North Carolina District Court did when it upheld the law, giving the court enough information to make a determination that the Virginia law should stand. Another review of the facts may lead to a more in depth analysis of the intent, however, the circumstances surrounding the passage of the Virginia law are not as blatantly discriminatory as in the North Carolina case. Another key problem for the appellants is Virginia’s legislative privilege that, in practice, exempts the General Assembly from having to provide certain records to the court, making it more difficult to prove any discriminatory intent.

Although the court will likely decide this case quickly, it will probably not have an effect on the upcoming election. A late change in the law would be difficult to implement in both training election officials and in producing materials reflecting a potential change in law. While this case may not be successful in overturning Virginia’s voter ID law, or at least not in keeping it from being in effect for this election, it will likely be just one in a string of voter ID decisions by Courts of Appeals that may force the Supreme Court to examine the constitutionality of voter ID laws once again.

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