Election Law @ Moritz

Election Law Litigation

Lake v. Perdue

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Detailed Summary

On July 3, 2006, two individual voters filed suit against the Governor of Georgia. The complaint alleged that Act 53, a statute requiring Georgia voters to present certain forms of photo ID before voting in person, violated Article II of the Georgia constitution. Together with the complaint, the plaintiffs filed a motion for temporary restraining order that would prevent Georgia from using Act 53's procedures in its July 18 elections. Four days later, the trial court granted a preliminary injunction against using Act 53's procedures because Act 53 "violates the Constitution by placing a restrictive condition on the right to vote." Preliminary Injunction at 3. The Supreme Court of Georgia refused to stay the trial court's injunction, and the election went forward under the old procedures without incident.

I. Facts

The original version of Act 53 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. Voters who did not have one of the required forms of ID could obtain a special voter ID from the state free of charge.

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. 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. The Georgia Secretary of State presented evidence in the Common Cause/Georgia case 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.

II. The Constitutional issue

Article II, Section 1, Paragraph 2 of the Georgia Constitution provides:

"Every person who is a citizen of the United States and a resident of Georgia as defined by law who is at least 18 years of age and … who meets minimum residency requirements as provided by law shall be entitled to vote at any election by the people. The General Assembly shall provide by law for the registration of electors."

The plaintiffs claimed the Article II provides an exclusive list of the prerequisites to voting in Georgia and any prerequisite to voting that does not appear on this list is by definition unconstitutional. Motion for TRO at 15-16. While Article II allows the legislature to prescribe "minimum residency requirements" and "provide by law for the registration of electors," the plaintiffs argued, it does not allow the legislature to create additional prerequisites to voting that apply to voters who have already met the residency and registration requirements. Id. Act 53 is an impermissible prerequisite because it might prevent a person from voting who has already met these requirements.

Defendant countered that while the Georgia constitution might not allow them to create prerequisites to voting beyond those described in Article II, this was irrelevant because Act 53 did not create prerequisites to voting, but only regulated "the voting process itself" by creating reasonable "time, place, and manner" regulations. Brief in Opposition to Motion for TRO at 25. The Defendant claimed that the following language contained in Article II, Section 1, Paragraph 1of the Georgia constitution allowed the state to create such regulations:

"Method of voting. Elections by the people shall be by secret ballot and shall be conducted in accordance with procedures provided by law."

Because Act 53 affects the "method and procedures" of voting rather than voter registration, the Defendant argued, "Article II, Section 1, Paragraph 1 is the applicable provision for renewing the 2006 Photo ID Act, and the constitutional provision expressly permits the General Assembly to enact appropriate statutes." Brief in Opposition to Motion for TRO at 25-26.

III. The trial court's grant of a preliminary injunction

On July 7, 2006, the trial court went beyond granting the requested TRO by granting a preliminary injunction against enforcement of Act 53. The court did not explain its rationale for granting the injunction beyond a terse statement that Act 53 "violates the Constitution by placing a restrictive condition on the right to vote." Preliminary Injunction at 3. On July 10, 2006, the Defendant petitioned the Supreme Court of Georgia for an emergency stay of the injunction to allow the State to conduct the July 18 elections under Act 53's procedures. The Supreme Court denied that petition two days later and Georgia conducted its elections under the pre-Act 53 procedures, which did not require photo identification, without incident.

IV. Analysis

For two reasons, it is difficult to say how this case might be decided going forward. First, Franklin v. Harper, 55 S.E.2d 221 (1949), the primary case relied upon by the parties in interpreting the disputed Constitutional provisions, is of questionable value in the year 2006. Georgia amended the disputed Constitutional provisions in 1983, arguably making Franklin obsolete. Just as importantly, Franklin dates from a time when the way lawyers thought about voting rights was much different than the way they think about them today. For instance, one of the questions Franklin considered was the Constitutionality of requiring prospective voters to pass a literacy test before exercising their right to vote. Id. at 227-229.

Second, even if Franklin is relevant, the parties' varied use of it in their briefs shows that it is ambiguous enough to be interpreted for or against either party. Franklin says that in Georgia the Constitution, not the legislature, defines the qualifications for voting, but that the legislature may define the methods the state uses to determine whether a given voter possesses those qualifications. Id. at 229-230. This just begs the question of whether the ID requirement is a qualification on voting or only a method to determine whether a qualification is present in a given person. Frankly, it can be characterized either way. It is a qualification on voting because people cannot vote without ID. Alternatively, it is not a qualification because residency in the State of Georgia is the actual qualification disputed here (a qualification approved by the Georgia Constitution); the ID requirement is just a method of determining whether the bearer meets this qualification.

The strength of Plaintiffs' argument is that, regardless of whether the ID requirement is a "qualification" in the legal sense, it functions just like a qualification to prohibit voters from casting their ballots. Furthermore, there is some circumstantial evidence that the legislature's subjective intent in passing the law was to suppress voting. If the court gives this evidence any credence, it can only count against the Defendants. Finally, the fact that the Supreme Court of Georgia denied the Defendant's request to stay the trial court's preliminary injunction may indicate sympathy for the Plaintiffs' argument. However, it is dangerous to read too deeply because the Court may have denied the request due to the timing and implementation of the law, rather than the terms of the law itself.

The Defendant may have better luck if the state attempts to use the new procedures in future elections because time now works for, rather than against, the Defendant. The Defendant began implementing Act 53's new procedures less than three weeks before the July 18 elections, prompting cries of lack of notice and contributing to a federal court's grant of a preliminary injunction against the law (link here). In all likelihood, this poor timing affected the state court's decision as well. Going forward the state will have more opportunity to improve its procedures and educate voters on how to follow them. As that process continues, voters will have more time to obtain an ID, making it more likely the court will condone the law as "fair enough."

In the final analysis, the issue is open enough to give the Supreme Court of Georgia the latitude to do whatever it thinks is right. Only time will tell what that is.