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As Election Nears, Voting Laws Still Unclear In Some States

Voters walk to an early voting site to cast their ballots on Aug. 11 in Miami. On Wednesday, a federal appeals court in Ohio upheld a decision extending early voting in that state. Meanwhile, as Election Day nears, courts are still considering cases about early voting in North Carolina, and voter ID requirements in Texas and Wisconsin. (Getty Images)

Midterm elections are less than six weeks away, but the rules for voting in some states are still unclear. This week alone, courts have been considering challenges to voter ID requirements in Texas and Wisconsin, and whether limits on early voting in North Carolina should stay in place. On Wednesday, a federal appeals court panel in Ohio upheld a decision extending early voting in that state, although state officials say they'll appeal.

"Voters and elections officials need to know what the rules of the game are going to be several weeks before the election," says Daniel Tokaji, an election law expert with the Moritz College of Law at Ohio State University.

But right now in several places, they don't, he says.

For example, arguments in a lawsuit challenging the Texas ID requirement wrapped up on Monday. But it's not clear when U.S. District Judge Nelva Gonzales Ramos will make her decision. And no matter what she decides, it will almost certainly be appealed, although as of now, the ID requirement remains in effect.

Tokaji says the case could end up before the Supreme Court.

"I think in Texas it's really difficult to say exactly what's going on," he says.

But Myrna Perez, with the Brennan Center for Justice at New York University and one of the attorneys challenging the law, says she's confident her side will prevail.

She thinks the plaintiffs presented compelling evidence that the law discriminates against minority voters, who are less likely to have the required government-issued photo ID. She also says many voters face a burden getting an ID because of the cost of related documents.

"For example, Miss Sammie Bates testified that she would have had to make a choice between feeding her family and presenting the money that she needed to get a birth certificate in order to get the identification that she wanted," says Perez.

Bates, who is African-American, told the court that the $42 birth certificate fee was an obstacle.

But attorneys for the state say that most voters have the right ID. And for those who don't, there are alternatives, such as casting an absentee ballot.

The dispute over voting rules is stark and emotional, so while the lawyers are debating, political campaigns are using the issue to fire up their bases.

A campaign ad for North Carolina's Republican Senate leader, Phil Berger, touts his role in passing that state's new voting law, which requires a photo ID by 2016.

"Voter ID prevents fraud and protects the integrity of our elections. It's common sense," Berger says in the ad.

Although there's little evidence of such voter fraud at the polls, public opinion surveys show that these new laws are popular. Republicans have been the main proponents.

On the other side, Democrats and voting rights groups say the laws hurt minorities and others who tend to vote Democratic. They've been using the issue to get those voters to the polls.

"During this 2014 election season, voters must be vigilant about their voting rights, particularly as states continue their voter suppression efforts, " says Barbara Arnwine of the Lawyers' Committee for Civil Rights Under Law, one of the groups opposing the state laws.

The groups are also trying to make sure that confusion over the rules this fall doesn't prevent legitimate voters from casting ballots. Already, in Wisconsin, a last-minute decision requiring photo ID has thrown the election there into turmoil.

Daniel Tokaji says that turmoil could lead to even more litigation.

"In the event of a close election, this could be a real mess," he says.

Updated on Sept. 25 to include the Ohio federal appeals court decision.

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

RACHEL MARTIN, HOST:

Midterm elections are less than six weeks away, but the rules for voting in some states are still unclear. This week alone, courts are considering challenges to voter ID requirements in Texas and Wisconsin. In North Carolina the question is whether voting changes should stay in place. NPR's Pam Fessler reports that any decisions in these cases will hardly be the first.

PAM FESSLER, BYLINE: Will Texas voters have to show a photo ID at the polls in November? Maybe yes, maybe no. How about in Wisconsin? Probably, but it's not clear. And tomorrow in North Carolina, a federal appeals court considers what to do about new limits on early voting.

DANIEL TOKAJI: And here's the thing. Voters and election officials need to know what the rules of the game are going to be several weeks before the election.

FESSLER: But right now in some cases they don't says Daniel Tokaji, of Ohio State University's Moritz College of Law. For example, arguments in a lawsuit challenging a new voter ID requirement in Texas wrapped up on Monday. And it's not clear when U.S. District Judge Nelva Gonzalez Ramos will make her decision. And no matter what she decides, it will almost certainly be appealed. Tokaji says the case could end up before the Supreme Court.

TOKAJI: I think in Texas it's really difficult to say exactly what's going on.

FESSLER: Although Myrna Perez with the Brennan Center for Justice at New York University thinks differently.

MYRNA PEREZ: I feel very confident that we'll prevail.

FESSLER: Perez is among a slew of attorneys representing Texas voters in a case challenging the law. She argues that it discriminates against minority voters who are less likely to have the required ID and that many of them face a burden getting an ID because of the cost.

PEREZ: For example, Miss Sammie Bates testified that she would've had to make a choice between feeding her family and presenting the money that she needed to get a birth certificate in order to get the identification that she wanted.

FESSLER: Bates, who's African American, told the court that the $42 birth certificate fee was an obstacle. But attorneys for the state say that most voters have the right ID, and for those who don't, there are alternatives such as casting an absentee ballot. The dispute is stark and emotional. So while the lawyers debate, political campaigns are using the issue to fire up their base.

(SOUNDBITE OF POLITICAL ADVERTISEMENT)

UNIDENTIFIED WOMAN: You need a photo ID to drive, cash a check, even to buy medicine. So shouldn't you show a photo ID to vote? Barack Obama said no.

FESSLER: This is a campaign ad for North Carolina's Republican Senate leader, Phil Berger, endorsing a new state law that will require photo ID by 2016.

(SOUNDBITE OF POLITICAL ADVERTISEMENT)

PHIL BERGER: Voter ID prevents fraud and protects the integrity of our elections. It's common sense.

FESSLER: Although there's little evidence of such voter fraud, polls show that these new laws are popular. Republicans have been the main proponents. On the other side, Democrats and voting rights groups say the laws hurt minorities and others who tend to vote Democratic. They've been using the issue to get those voters to the polls.

BARBARA ARNWINE: During this 2014 election season, voters must be vigilant about their voting rights, particularly as states continue their voter suppression efforts.

FESSLER: That's Barbara Arnwine of the Lawyers Committee for Civil Rights Under Law, one of the groups opposing the state laws. They're also trying to make sure that confusion over the rules doesn't prevent legitimate voters from casting ballots. Already in Wisconsin, a last-minute decision requiring photo ID has spun the election into turmoil. Legal expert, Daniel Tokaji, says that turmoil could lead to even more litigation.

TOKAJI: In the event of a close election, this could be a real mess.

FESSLER: Pam Fessler. NPR News. Transcript provided by NPR, Copyright NPR.

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