Election Law @ Moritz

Election Law Litigation

NAACP v. Billups

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Detailed Summary

On September 19, 2005, seven non-profit organizations and two individual voters filed suit against the superintendents of various Georgia county Boards of Election and Georgia Secretary of State Cathy Cox. The original complaint alleged that Act 53, a statute requiring Georgia voters to present certain forms of photo ID before voting in-person, violated Section 2 of the Voting Rights Act, violated the Civil Rights Act of 1964, and unduly burdened Georgia voters' rights to vote under both the US and Georgia constitutions.

The original version of the Act became effective on July 1, 2005, and required that Georgia in-person voters present one of six forms of photo ID at the polls prior to voting: a Georgia driver's license, state identity card, US passport, government employee ID card, military ID card, or Native American tribal ID card. It prohibited the state from counting ballots cast by in-person voters who failed to present proper ID at the polls. However, it did allow voters who could not present proper ID at the time of voting to cast a provisional ballot that would be counted if the voter "returns to the registrar's office within forty-eight hours and presents a Photo ID." First Preliminary Injunction at 65.

Together with Act 53, Georgia passed another law that affected voting: Act 68, which increased the fee for obtaining a photo ID. Id. at 27. However, Act 53 included a related provision that allowed voters to get a free ID if they swore under oath that they were indigent, could not pay the fee, and did not have any of the other approved forms of identification. Id. at 25.

The asserted justification for Act 53 was to prevent voter fraud. However, critics claimed that the true purpose of the Republican-sponsored Act was to suppress voting among minorities, the poor, elderly and disabled who, critics claimed, were less likely to have one of the approved forms of identification and less able to obtain them.

Particularly, critics made much of the fact that the ID requirement did not apply to absentee voters. Id. at 62. In fact, the only procedure in place to prevent absentee voter fraud was state officials' practice of comparing signatures on completed absentee ballots with those on voter registration applications for irregularities apparent to the naked eye. Id. at 63. This system became more suspect in light of evidence presented by the Secretary of State that almost all known cases of voter fraud in Georgia had occurred in the context of absentee voting, whereas in-person voter fraud was almost unheard of. Id. at 55-56.

Count One of the September 19, 2005, complaint alleged that Act 53 violated Article II of the Georgia constitution. Complaint at 32. Count Two alleged the Act constituted an undue burden on the "fundamental right to vote," and also alleged that it violated the constitutional right to equal protection under the law. Id. at 34-35. Count Three alleged that the $20 ID fee created by the Act was an unconstitutional poll tax that violated the Fourteenth and Twenty-fourth Amendments. Id. at 35. Count Four alleged that the Act violated the Civil Rights Act of 1964 because it required persons voting in-person to present photo ID while exempting absentee voters from this requirement. Id. at 36-37. This Count also alleged that the Act violated the Civil Rights Act "because it denies individuals who are fully qualified and lawfully registered the right to vote in person based solely on whether or not they have a government-issued Photo ID…." Id. at 38. Count Five alleged that the Act violated the Voting Rights Act of 1965 because it "is a qualification to voting, a standard practice or procedure with respect to voting which will result in the denial of the right to vote… on account of race or color…." Id. at 39. The complaint also generally alleged that the law would have a disparate impact on minorities, and that the Georgia legislature passed Act 53 with the specific intent of suppressing voting among minorities, the elderly, poor and disabled. Id. at 26, 49.

On October 18, 2005, the trial court granted Plaintiffs a preliminary injunction prohibiting the state from enforcing the disputed provisions of the Act during the November 8, 2005 elections. In order to grant this injunction, the court was required to find, and did find, that Plaintiffs had shown "(1) a substantial likelihood of ultimate success on the merits; (2) the preliminary injunction is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm the preliminary injunction would inflict on the non-movant; and (4) the preliminary injunction would serve the public interest." First Preliminary Injunction at 70-71, citing McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998). The court premised the injunction on the Plaintiff's likelihood of success on its undue burden and poll tax claims only. The court determined that it was barred by the Eleventh Amendment to the US Constitution from considering Plaintiffs' Georgia constitutional claim, and refused to state any opinion as to the likelihood of success on Plaintiffs' Civil Rights Act and Voting Rights Act claims because at the time of the hearing Plaintiffs had not yet presented full arguments on those claims.

The Defendants appealed the grant of the preliminary injunction to the 11th Circuit Court of Appeals and filed a motion to stay enforcement pending appeal, which the trial court denied. Meanwhile, the Georgia legislature enacted a new version of Act 53 on January 26, 2006, designed to cure in time for the 2006 primaries the defects pointed out by the court. After passage of the 2006 Act, the 11th Circuit dismissed Defendants' appeal as moot and remanded the case to the trial court.

The 2006 Act removed the provision of the 2005 Act that allowed voters to obtain a free voter ID upon signing an affidavit stating that they are indigent. Instead, the new Act allowed voters to obtain a free ID merely by swearing "that he or she desires an identification card in order to vote… and… does not have any other form of identification that is acceptable…." Second Preliminary Injunction at 29. The 2006 Act also mandated that each county provide at least one place in that county where voters could apply for and obtain an ID. Id. at 33-34.

On April 26, 2006, the Plaintiffs filed a second amended complaint to reflect the 2006 changes in the Act and on July 5, 2006, filed a motion for preliminary injunction to prevent enforcement of the 2006 Act. On July 14, 2006, the trial court again entered an order granting a preliminary injunction as to the 2006 Act.

Meanwhile, on July 3, 2006, two individual voters filed an action in a Georgia state court against Governor Sonny Perdue claiming the 2006 Act violated Article II of the Georgia constitution. The voters filed a motion for temporary restraining order concurrently with their complaint. Four days later, the state court, rather than grant the requested TRO, imposed a preliminary injunction against enforcement of the Act. The Defendant petitioned the Supreme Court of Georgia for an emergency stay of the injunction to permit the state to go forward with the July 18 election under the procedures outlined in the Act, which the Supreme Court denied.

Together, the federal and state preliminary injunctions virtually guaranteed voters could vote on July 18 under the old law's procedures. A detailed discussion of the two lengthy court orders granting the federal preliminary injunctions appears below.

I. The first preliminary injunction issued on October 8, 2005

As stated above, in order to grant the first injunction, the court was required to find, and did find, that Plaintiffs had shown "(1) a substantial likelihood of ultimate success on the merits; (2) the preliminary injunction is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm the preliminary injunction would inflict on the non-movant; and (4) the preliminary injunction would serve the public interest." First Preliminary Injunction at 70-71, citing McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998).

(A) Likelihood of success on the merits

The court's discussion of the Plaintiffs' likelihood of success on the merits extended for forty-four pages. In that discussion, the court considered the likelihood of success of each of the Plaintiffs' claims and concluded that the Plaintiffs had a substantial likelihood of success on their undue burden and poll tax claims. The court determined that it was barred by the Eleventh Amendment to the US Constitution from considering Plaintiffs' Georgia constitutional claim. Id. at 76. Finally, it refused to state any opinion as to the likelihood of success on Plaintiffs' Civil Rights Act and Voting Rights Act claims because at the time of the hearing Plaintiffs had not yet presented full arguments on those claims. Id. at 109, 111, 116.

(1) The likelihood of success on Plaintiffs' undue burden claim

Before considering whether the 2005 Act unduly burdened the right to vote, the court noted some basic principles of voting law. First, it noted that citizens have an equal right to vote, but that that right is not absolute. Id. at 78, citing Dunn v. Blumstein, 405 U.S. 330, 336 (1972). In particular, the court noted that states "can impose voter qualifications and can regulate access to voting in other ways," including time, place and manner restrictions. Id., citing Dunn, supra; U.S. Const. art. I, § 4, cl. 1. Nevertheless, the court stated that those qualifications and access regulations "cannot unduly burden or abridge the right to vote." Id., citing Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217 (1986). Finally, the court quoted the US Supreme Court's observation that "wealth or the ability to pay a fee is not a valid qualification for voting." Id., citing Harper v. Va. State Bd. Of Elections, 383 U.S. 663, 666-68 (1966).

Defendants argued that ID requirement "is not a severe restriction on voting because it prevents no one from voting." Id. at 81. Rather, the Act "simply regulates the manner of voting," and "requiring a Photo ID for in-person voting is a reasonable means of achieving that legitimate state interest of regulating voting and preventing in-person vote fraud." Id. The Act allows voters without ID in most cases to vote absentee, and those IDs can be obtained free of charge upon completion of a poverty affidavit. Id.

The Plaintiffs argued that the legislature had in passing the Act an improper goal of suppressing voting or, in the alternative, that the act was not narrowly tailored because it focused on preventing fraud in in-person voting while actually relaxing ID requirements for absentee voting, where fraud was more common. Plaintiffs' Brief in Support of First Motion for Preliminary Injunction at 24-28, 41. In response to this criticism, the Defendants argued that they were not obligated to address all voter fraud problems at once; preventing in-person voter fraud should be considered a legitimate state interest regardless of how the state treats absentee voting, and the statute was narrowly tailored to serve that interest. First Preliminary Injunction at 83.

In deciding whether an access regulation constitutes an undue burden on voting, the court pointed out two lines of cases that carry different standards. First, it cited an older line of Supreme Court cases holding that such qualifications must withstand strict scrutiny. Id. at 80, citing Dunn, supra; Kramer v. Union Free School Dist. No. 15, 395 U.S. at 626, 627; Hill v. Stone, 421 U.S. 289, 298 (1975). The second, more recent line of cases would apply strict scrutiny where voting rights are subjected to "severe" restrictions, but would apply a more flexible standard where they are subjected only to "reasonable, non-discriminatory restrictions." Id. at 81, citing Burdick v. Takushi, 504 U.S. at 433-34 (1992). Rather than decide which of these two standards should apply, the court decided to analyze Act 53 under both standards because the result was the same.

The court stated that "[t]here seems to be little doubt that the Photo ID requirement fails the strict scrutiny test…." Id. at 83. The court acknowledged that curbing voter fraud was an important and legitimate state interest, but nevertheless concluded that the statute "is not narrowly drawn to prevent voter fraud." Id. at 94, 83. In making this conclusion, the court repeatedly highlighted the way that the statute focused on in-person voting, where there was little evidence of fraud, and ignored or exacerbated problems with fraud in absentee voting and voter registration. Id. at 84. "By doing so," the court stated, "the State, in theory, left the field wide open for voter fraud by absentee voting. Under those circumstances, the Photo ID requirement simply is not narrowly tailored to serve its stated purpose—preventing voter fraud." Id. The court concluded that the "Plaintiffs have a substantial likelihood of succeeding on the merits of their Equal Protection Clause claim under a strict scrutiny analysis." Id. at 85.

The court also concluded that Plaintiffs had a substantial likelihood of succeeding on the merits under a more relaxed Burdick-type analysis because Act 53's burden on voting outweighed the interests served by the statute. Id. The court called Act 53's burden on voting "significant" due to the difficulties voters would experience in traveling to the Georgia Department of Driver Services centers during their limited business hours and waiting in lines that are often long. Id. at 86. While the court acknowledged that Georgia had implemented a mobile ID unit that helped mitigate the burden, it was not so effective as to remove the constitutional difficulties of the statute: "The fact remains… that the DDS has only one GLOW bus and Georgia has 159 counties." Id. at 87. Furthermore, the voters' opportunity to avoid the ID processing fee by filling out a poverty affidavit did not sufficiently remove the monetary burden on voters because many voters would not consider themselves indigent and could not in good faith fill out an affidavit that labeled them as indigent. Id. at 88. The Defendants claimed DDS had a "no questions asked" policy that allowed non-indigent voters to claim they were indigent to obtain a free ID, but the court said that this, too, was insufficient as DDS never publicized this policy and some voters might feel uncomfortable with signing a false affidavit. Id. at 88-89.

The court also rejected the Defendants' argument that "the Photo ID requirement does not deprive voters of the right to vote, as voters can vote via absentee ballot without producing any Photo ID at all in most instances." Id. at 89. Again, the State presented no evidence that it had publicized this new loophole and the court concluded from this that many voters would not attempt to vote absentee because they still believed the old requirements would prevent them from doing so. Id. at 90. The court stated that "[t]he fact that voters, in theory, may have the alternative of voting an absentee ballot without a Photo ID thus does not relieve the burden on the right to vote caused by the Photo ID requirement." Id. at 92.

Likewise, the court rejected the Defendants' contention that Georgia's provisional ballot law cured the Act's burden on voting. The provisional ballot law allows voters who do not have ID at the time of in-person voting to cast a provisional ballot that the State will count if voters produce proper ID within forty-eight hours of casting their ballot. Id. at 93. The court said that, "[g]iven the difficulty of obtaining a Photo ID discussed above, it is highly unlikely that many of the voters who lack Photo ID… could obtain a Photo ID within the forty-eight hour period." Id. at 93. Therefore, the court concluded that the provisional ballot option was "an illusion" that did not solve Act 53's constitutional problems. Id.

For these reasons, the court concluded Plaintiffs' undue burden claim had a substantial likelihood of succeeding on the merits.

(2) The likelihood of success of Plaintiff's poll tax claim

Plaintiffs also argued that, regardless of whether the fee for obtaining a voter ID would be considered a tax under Georgia law, it is a poll tax in violation of the Twenty-fourth Amendment of the US constitution. Id. at 96-97. The Twenty-fourth Amendment prohibits denying an individual the right to vote in federal elections for failure to pay a poll tax. Defendants argued that the Act does not impose a poll tax because it allows individuals to avoid paying any fee at all by filling out a poverty affidavit, which the state has a policy of not questioning. Id. at 103. The court once again rejected this argument because many voters "may not be aware of that policy, and understandably may be reluctant to sign an Affidavit that requires them to state that they are 'indigent and cannot pay the fee for an identification card' when such as statement is not true." Id. Regardless, the court stated that "the fact that some individuals avoid paying the cost for a photo ID card does not mean that the Photo ID card is not a poll tax." Id. The court concluded that the Photo ID requirement was a poll tax and "thus violates the Twenty-fourth Amendment with respect to federal elections and violates the Equal Protection Clause with respect to State and municipal elections." Id. at 104.

For these reasons, the court concluded Plaintiffs' poll tax claim had a substantial likelihood of succeeding on the merits.

(3) The likelihood of success on Plaintiffs' Voting Rights Act claim

Finally, the court considered Plaintiffs' claim under the Voting Rights Act of 1965, which prohibits any voting standard, practice, or procedure which results in the denial or abridgement of the right of any citizen to vote on account of race or color. The Plaintiffs cited census and other data to show that Georgia African-Americans suffer from greater poverty, lack of education, lack of transportation, and lack of nearby Department of Driver Services centers than do Georgia whites. Id. at 114-115. According to the Plaintiffs, "this evidence is sufficient to show depressed political participation by minorities and to demonstrate that the Photo ID requirement will discourage voting by minority voters." Id. at 116. After noting the Plaintiffs' evidence, the court stated that it "simply cannot agree with Plaintiffs that the evidence is sufficient to demonstrate that Plaintiffs have a substantial likelihood of succeeding on the merits" of their Voting Rights Act claim. Id. However, the court reserved judgment on the claim because it recognized that "Plaintiffs may be able to produce sufficient evidence at a later stage of the proceedings…." Id.

(B) Other factors necessary to the preliminary injunction

Compared with its lengthy treatment of whether the Plaintiffs' claims had a substantially likelihood of success, the court's curt analysis of the other three preliminary injunction factors seemed like a haiku.

First, the court found that Plaintiffs would suffer irreparable harm unless it granted the preliminary injunction. While voters could avoid the ID requirement by voting absentee, the court found the preliminary injunction was nevertheless necessary because voters were unlikely to understand and take advantage of this recently-created loophole in time for the election. Id. at 117. Second, the court found that this irreparable injury outweighed the harm a preliminary injunction would inflict on the Defendants. While the preliminary injunction might create great inconvenience and expense for state officials, the right to vote was more important because it is "a fundamental right and preservative of all other rights." Id. at 118. Finally, the court found that "removing the undue burdens on that right [to vote] imposed by the Photo ID requirement serves the public interest." Id. at 120.

II. The second preliminary injunction issued on July 14, 2006

On July 14, 2006, the court entered an order granting a preliminary injunction as to the 2006 Act. The court withheld judgment on the likelihood of success of Plaintiffs' Voting Rights Act claims because the Plaintiffs did not address this claim in their motion. The court also determined that, under the 2006 Act, the Plaintiffs were not likely to succeed on their poll tax or Civil Rights Act claims. Instead, the court premised the injunction on the Plaintiffs' likelihood of success on their undue burden claims only. Furthermore, a close reading of the second preliminary injunction order shows that the court granted it not necessarily because it found the content of the 2006 Act problematic, but because the timing of that Act did not leave adequate opportunity for voters to conform to its requirements.

(A) Plaintiffs' undue burden claim

As in the previous preliminary injunction order, the court prefaced its analysis of the likelihood of success of the Plaintiff's undue burden claim by noting two different US Supreme Court standards for whether a voting regulation violates the Equal Protection Clause: Strict scrutiny and the more flexible standard from Burdick, supra. Second Preliminary Injunction at 144-145. However, unlike in the previous order, the court did not equivocate about the appropriate standard of review, but stated without explanation that "the appropriate standard of review for evaluating the 2006 Photo ID Act is the Burdick sliding scale standard." Id. at 148.

Under this analysis, Defendants advanced many of the same arguments used the in the prior preliminary injunction briefing. Particularly, they attempted to recycle an argument they made in the first briefing schedule: That the ID requirement does not deprive voters of the right to vote because voters may avoid the requirement by voting absentee. Id. at 154. The court previously rejected this argument because it claimed most voters would not know of this loophole, but this time, the Defendants pointed out, the State Election Board had advertised through the media the availability of ID-free absentee voting. Id. Nevertheless, the court maintained this did not cure the burden of the ID requirement because the advertisements "began to run only shortly prior to the July 18, 2006, primary elections" and voters "most likely would not have had sufficient time to complete a request for an absentee ballot, mail the request to the registrar's office, receive the absentee ballot, and return the absentee ballot to the registrar's office by mail sufficiently early…." Id. at 155.

Indeed, the order granting the second preliminary injunction is replete with references to burdens flowing not from the 2006 Act itself, but the state's forthcoming attempt to begin implementing it "less than three weeks prior to the July 18, 2006, primary elections." Id. at 150. The court indicated that this sudden application of the Act made it "highly likely that a large number of Georgia voters who lack Photo IDs will not know of the 2006 Photo ID Act's requirements…." Id. While the state had undertaken some efforts to educate voters about the new requirements, the court found those efforts inadequate for several reasons: The state began advertising the new procedures over the radio only two weeks before those elections; the state aired its advertising on off-peak hours on a radio station with few listeners; the state did not intend to distribute literature explaining the new requirements ahead of time, but chose to wait until the primary and distribute literature at the polls. Id. at 150-151. However, despite its quarrels with the Defendants' advertising campaign, the court clarified that they were not the root of the problem, only a complicating factor: "Even if the State had made the effort to educate voters about the Photo ID requirement and to publicize the availability of Voter ID cards, requiring voters to obtain a Photo ID within the short time period before the July 18, 2006, primary… still is unduly burdensome." Id. at 153. In contrast to the high number of references to burdens flowing from the timing of the Act's enforcement, the court made relatively few references to burdens flowing exclusively from the provisions of the Act itself.

Indeed, in summarizing its opinion as to the Plaintiffs' likelihood of success on the merits of their undue burden claim, the court seemed to indicate openness to enforcing the Act in future elections if the state ensured voters had a fair chance to adjust to the new provisions:

"In issuing this Order, the Court does not intend to imply that all Photo ID requirements would be invalid or overly burdensome on voters. Certainly, the Court can conceive of ways that the State could impose and implement a Photo ID requirement without running afoul of the requirements of the Constitution. Indeed, if the State allows sufficient time for its education efforts with respect to the 2006 Photo ID Act and if the State undertakes sufficient steps to inform voters of the 2006 Photo ID Act's requirements before future elections, the statute might well survive a challenge for such future."

Id. at 168. Nevertheless, the court held that the Act "fails the constitutional test with respect to the July 18, 2006, primary elections and the primary run-off elections," and for that reason found that "Plaintiffs have a substantial likelihood of succeeding on their claim that the 2006 Photo ID Act violates the Equal Protection Clause…." Id. As in its previous preliminary injunction order, the court found present the other three factors necessary to grant a preliminary injunction and granted the requested injunction. Id. at 189-193.

(B) Plaintiff's poll tax claim

As in the previous briefing schedule, Plaintiffs argued that the Act is a constructive poll tax in violation of the Twenty-fourth Amendment of the US Constitution. However, the state's amendment of the Act removed the fee associated with obtaining a voter ID and the Plaintiffs were thrown back on arguing that the Act remained a poll tax because "voters who do not have an approved Photo ID must bear the costs of traveling to a registrar's office in order to [obtain] a Voter ID card, as well as the costs for obtaining any documents necessary to obtain a Voter ID card." Id. at 169. The court rejected this argument, relying heavily on the following quote from a recent opinion of an Indiana federal court:

"This argument represents a dramatic overstatement of what fairly constitutes a 'poll tax.' It is axiomatic that '(e)lection laws will invariably impose some burden upon individual voters….' Thus, the imposition of tangential burdens does not transform a regulation into a poll tax. Moreover, the cost of time and transportation cannot plausibly qualify as a prohibited poll tax because those same 'costs' also result from voter registration and in-person voting requirements, which one would not reasonably construe as a poll tax."

Id. at 177, citing Ind. Democratic Party v. Rokita, 2006 WL 1005037 at 38 (S.D. Ind. 2006). The court also noted that, as in Rokita, "'[t]he only incidental cost which might plausibly approach being a poll tax is the fee assessed to obtain a birth certificate,' which voters, in turn, may use to obtain a Voter ID card." Id., citing Rokita at 38. Plaintiffs argued that this fee constitutes a poll tax, but the court rejected this argument as "wholly speculative." Id. "[A] birth certificate is only one of the many documents that the registrar may accept to issue a Voter ID card," the court noted, and "Plaintiffs have failed to show that any particular voter would actually be required to incur… [a cost associated with obtaining a birth certificate] in order to vote." Id. Furthermore, the court indicated that even if the Plaintiffs did present a particular voter who would be required to incur this cost, the poll tax argument might nevertheless fail because "Plaintiffs have failed to demonstrate that the cost of obtaining a birth certificate is sufficiently tied to the requirements of voting so as to constitute a poll tax." Id., citing Rokita at 38.

For these reasons, the court concluded that "Plaintiffs have no substantial likelihood of succeeding on their poll tax claim." Id.

(C) Plaintiffs claims under the Civil Rights Act of 1964

Plaintiffs brought two claims under the Civil Rights Act of 1964. The first claim was based on § 1971(a)(2)(A) of that Act, which prohibits applying different standards, practices, or procedures to individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote. The Plaintiffs argued the 2006 Act violates this provision because both absentee voters and in-person voters have been found by the State to be qualified to vote, yet the Act treats the two types of voters differently by requiring ID from only in-person voters. Id. at 180. Defendants argued that the 2006 Act applies the same standard to everyone by giving everyone the choice to vote absentee or in-person using uniform procedures. Id. at 182. The court agreed with the Defendants that the 2006 Act could not violate § 1971(a)(2)(A); while different procedures applied to absentee and in-person voters, this was not because the Act treated voters differently, but because "absentee voting and in-person voting are inherently different processes, and both processes use different standards, practices, and procedures." Id. at 183-184. The court concluded that Plaintiffs did not have a substantial likelihood of success on this claim.

Next the court considered a second Civil Rights Act claim based on § 1971(a)(2)(B) of that Act, which prohibits "deny[ing] the right… to vote… because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote…." Plaintiffs contended that Act 53 violates this provision because it would deny the right to vote of a voter who omitted to present the proper ID despite the fact that that ID is irrelevant to whether that voter is "qualified under State law to vote" within the meaning of the Civil Rights Act. Id. at 184. The court rejected this contention, finding that § 1971(a)(2)(B) did not apply to the 2006 Act because the Photo ID requirement is not an "'error or omission on any record or paper relating to any application, registration, or other act requisite of voting.'" Id. at 186, citing Rokita, 2006 WL 1005037 at 8. The court further noted that § 1971(a)(2)(B) "'was intended to address the practice of requiring unnecessary information for voter registration with the intent that such requirements would increase the number of errors or omissions on the application forms, thus providing an excuse to disqualify potential voters.'" Id., citing Schwier v. Cox, 340 F.3d 1284,1294. Because the 2006 Act was not such a practice, it did not violate § 1971(a)(2)(B) and Plaintiffs did not have a substantial likelihood of success on this claim. Id.

III. Conclusion

The federal and state injunctions guarantee that Georgia voters will be entitled to vote without ID in the July 18, 2006 primaries. However, Plaintiffs may have won the battle and lost the war. The court's statement in the second preliminary injunction order that "if the State undertakes sufficient steps to inform voters of the 2006 Photo ID Act's requirements… the statute might well survive a challenge" could be construed as an invitation to Defendants to try implementing the ID requirement again in the November, 2006, elections.

If the Defendants accept that invitation and adequately inform voters of the new procedures, the court's reasoning leaves little room for the Plaintiffs to maneuver. Indeed, the court verges on saying that while going to the Department of Driver Services and obtaining a free ID is a burden on voting, it is only a de minimis burden in a situation where voters have sufficient time and information to adjust. In that situation, the court seems to hint, individual voters should carry the burden themselves, rather than petitioning the courts.

The inconvenience experienced by a single voter in this situation may seem trivial. However, thinking of the problem from the perspective of the individual voter tells only half of the story. The other half is that, while the burden on any given voter may be trivial, in the aggregate the burden could result in thousands, if not tens of thousands, of uncast votes. In turn, those uncast votes, because they may fall disproportionately in certain portions of the community than in others, may turn an election.