A Pennsylvania judge is still considering a lawsuit to force state officials to change voter identification ads that some say misinform the electorate. In Wisconsin, some election materials still have references to that state's suspended Voter ID law. And in Tennessee, the city of Memphis says election officials are defying a ruling issued just last week that said library cards could be used at the polling place as proof of identity.
Those are just three examples of last-minute complications plaguing state election officials in what has already been a numbingly complex election year for many of them. In some of the most closely watched and intensely fought-over states, recent court rulings and still-lingering litigation have cast even greater doubts on whether voters and administrators are up to the task of handling what will be one of the most scrutinized elections in recent memory.
Just days before the balloting, state officials, election observers and activists of all stripes are preparing to keep a close eye on thousands of polling places. Meanwhile, election officials are getting ready for the deluge, even while in some places last-minute changes are amounting to a nightmare scenario for election administration.
“Your logistics, your training, the way you set up your processes, is done months and months in advance. You plan all of that, and all of a sudden the court changes everything,” says Doug Lewis, executive director of the National Association of Elections Officials' Elections Center. “You want to be responsible in terms of being responsive. And yet at the same time, you want to scream out loud, ‘My God, do you understand what this truly means?'”
Perhaps the most contentious Voter ID battleground is Pennsylvania. Some estimates found as many as 750,000 voters in the state without the identification needed to vote just months ahead of Election Day.
But a state court delivered a significant victory to Voter ID opponents last month in suspending the ID requirement for this year. Still, in that decision's wake other issues have cropped up, leaving some to worry about confusion and inconsistencies at the polls.
One concern is a still-undecided lawsuit before the same court that suspended the state's Voter ID law. Those bringing the suit say widely shown ads mislead voters about the status of the law. Some of the ads depict a state ID card and large print reading “Show It,” with much smaller print explaining that an ID won't be required to vote, per the recent ruling, even though poll workers will still ask for identification on Election Day.
The court has yet to rule on this part of the dispute, and the state had until Tuesday of this week to file its response in the litigation, guaranteeing any order would be in place for less than a week before November 6. State officials say the ads aren't misleading or inaccurate, but critics say it's an example of foot-dragging by a state on the losing side of a Voter ID contest.
“I wish that the states would demonstrate an awareness that it's an urgent situation,” says Catherine Flanagan, director of election administration for Project Vote, an advocacy group. Without that, Flanagan adds, “the deterring effect is exactly the same as if the law remained in place.”
In Wisconsin, too, where a pair of lower courts imposed an injunction against the state's Voter ID law for this cycle, some websites and materials fail to reflect the new status of the law. There, though, activists say officials have proven responsive to the concerns, and most of the problems are more ones of oversight than of purposeful deception.
Questions of Enforcement
But even in states where the law hasn't changed, the intricacies of how a given Voter ID requirement is enforced have been subject to legal dispute.
In Tennessee, for example, a court upheld the state's Voter ID law as constitutional just last week. But despite the victory, the state appealed a portion of the ruling that said voters could use certain library cards at the polls as their ID.
With the appeal still pending, there's uncertainty over whether the library cards will be accepted. The city of Memphis, which is at the center of the library card disagreement, sent a cease and desist letter to county officials early this week saying election officials were defying the ruling in forcing voters with only a library card to cast provisional ballots — ones that need to be validated later.
Whatever happens in court in Tennessee between now and Tuesday, the fact that the outcome is still in doubt could leave some without enough time to secure a different ID card if the ruling is overturned. What's more, no matter the outcome it simply increases the likelihood that both voters and poll workers will face additional stress and confusion.
“I don't think there's an election administrator in the U.S. who is just sitting back and relaxing,” says Karin Mac Donald of the University of California, Berkeley, who directs the law school's Election Administration Research Center. “Then to get something like that very close to the election to add to your usual processes? … I would not want to be an election administrator.”
For some, the concerns over the recently changed legal framework only underscore the main flaw of Voter ID laws. In this view, no matter what the language or legal status, they inevitably confuse voters and make it more difficult to vote.
To this point, South Carolina could serve as Exhibit A, says Brett Bursey of the South Carolina Progressive Network. Even though a federal court upheld that state's Voter ID law after a long back-and-forth with the Justice Department, it won't be in effect for this election.
Still, Bursey says, the attention paid to the issue and the intense public debate that surrounded it will leave some confused about the status of the law. He predicts some citizens will forego voting altogether simply because of that.
“If you're talking about confusing people, scaring people, suppressing people,” he says, “it works even if it doesn't work.”
Of course, supporters of the Voter ID laws dispute that. In many states with Voter ID laws, officials have mounted extensive, and widely praised, outreach efforts before their laws take effect. And indeed, a number of courts, including the U.S. Supreme Court, have essentially ruled that there's nothing inherent in photo ID requirements that makes them discriminatory. They've suggested that it's possible to enact such measures the right way, without disenfranchising voters.
But that's little comfort to get-out-the-vote activists with just days before the election as they worry over whether a given voter or poll worker in one precinct, in one state, will prove knowledgeable enough to follow the letter of the law. And the fact that the letter of the law may have changed in recent weeks, or could still change in coming days, makes those worries even more pronounced.
“We're all quite concerned that voters are confused and also that poll workers might not have the right information,” says Tova Andrea Wang, a senior democracy fellow at the advocacy group Demos and a fellow at the Century Foundation.
The Election Center's Lewis, meanwhile, puts a finer point on the matter.
“What you ask for in election administration is time to make sure everybody understands what the rules are so they can implement the rules. Courts are usually less concerned about that,” he says. “That's not an ideal way to run a democracy.”