Legal challenges to voter ID laws expand into Virginia

In the latest case in what is shaping up to be a nationwide legal battle over voting rights in advance of the 2016 election, Hillary Clinton’s general counsel, Marc Elias, filed a lawsuit yesterday against the Virginia State Board of Elections and Department of Elections. The lawsuit claims that Republicans in the state intentionally crafted voting restrictions for the purpose of suppressing Democratic votes following President Obama’s two wins in what was previously a reliably red state.

The lawsuit also seeks to “remedy Virginia’s long wait times to vote, and to re-enfranchise all nonviolent felons who have completed their sentences and paid all fines, fees, and restitution.”

Republicans have pushed back against the lawsuit by claiming that it is politically motivated. If seeking to undo a discriminatory, politically motivated law is itself politically motivated, then so be it. Given the recent history of voting restrictions in Virginia, it’s impossible to disentangle political motivations from bills relating to the franchise. The elections are close and the parties involved are familiar with the issue, to say the least.

For starters, the legal challenge puts Virginia Attorney General Mark Herring, who would be responsible for defending the state’s voter ID law, in an awkward position. He won his office in 2013 by less than 200 votes against the state senator who sponsored the law itself. And in his recount, he was defended by none other than Marc Elias.

As I’ve noted before, the 2013 election was held after the voter ID law passed, but before it went into effect. Had voters in that election been required to show photo ID, Mark Obenshain would almost certainly be the state’s attorney general right now:

Mark Obenshain.

Mark Obenshain.

As The Washington Post reported before the law was set to take effect, roughly 200,000 registered Virginian voters (four percent of the electorate) lacked drivers licenses, the most common form of acceptable photo ID. Obenshain responded with an article in PJ Media that recalculated the figure and revised it downward, to just under 100,000 voters, after removing military and overseas voters, who would presumably not be voting in person.

Remember, the race for attorney general was decided by less than 200 votes. By Obenshain’s own estimates, only two tenths of one percent of voters would need to have been disenfranchised in that election for the law to have been decisive. That’s more than within the range of likely outcomes: For reference, in the 2014 midterm election the following year, over 800 voters — more than four times Obenshain’s margin of defeat — were forced to vote provisionally because they showed up to the polls without iD.

So let’s not pretend that these laws don’t have political implications and aren’t politically motivated.

Given the political background surrounding Virginia’s particular voter ID law, it will be interesting to see whether Mark Herring defends it in his capacity as Attorney General (his office declined to comment yesterday). It’s probably safe to say that if he does, his defense will not be as spirited as those of Republican attorneys general in, say, Wisconsin or Ohio.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • It’s not “2 tenths of 1%” – it’s “2 thousandths of 1%” if 200 votes out of 100,000 could swing the election.

  • FLL

    Better for the legal challenges to happen now than at the eleventh hour.

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    SSDD.

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