Georgia Voting Photo Id Requirement Found to be an Undue Burden and a Poll Tax

The U.S. District Court for the Northern District of Georgia granted a preliminary injunction to prevent Georgia election officials from enforcing a new law requiring in-person voters to present a government issued photo id or passport (“Photo ID requirement”). The Georgia legislature had passed the Photo ID requirement in 2005 as an amendment to a law which had previously allowed eight other forms of identification such as birth certificate, social security card, a copy of a current utility bill, or a payroll check. Although the amendment claimed to reduce opportunities for voter fraud, it did not address the more common problems of fraudulent voter registration and absentee voting. In fact, the bill loosened restrictions on absentee voting. Plaintiffs Clara Williams, Common Cause/Georgia, League of Women Voters of Georgia, and several other groups devoted to voters’ rights brought suit against the Secretary of State of Georgia and the Superintendents of Elections for the Board of Elections for Georgia counties claiming that the Photo ID requirement imposed an undue burden on the right to vote in violation of the First and Fourteenth Amendments, constituted a poll tax in violation of the Twenty-Fourth Amendment, violated the Georgia Constitution, and violated the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The court applied the standard four part test for preliminary injunction and found that the Plaintiffs had a substantial likelihood of success on the merits of the first two claims, that the disenfranchisement likely to result from the Photo ID requirement would be irreparable harm, that the fundamental right to vote was so important as to outweigh the burden on the state, and that protecting the right to vote was in the public interest.Substantial Likelihood of Success on the Merits:
The Court first addressed whether the Plaintiffs had a substantial likelihood of success on the merits of their claims and found that they did have a substantial likelihood of success on their undue burden and poll tax claims.

The Court found that there was a substantial likelihood that the Plaintiffs would prevail on their claim that the Photo ID requirement was an undue burden on the right to vote, in violation of the First and Fourteenth Amendments. The Court noted that two tests might apply to this question. The first was a strict scrutiny test as set forth in Dunn v. Blumstein, 405 U.S. 330 (1972). Under the strict scrutiny test, any voting regulations must be narrowly tailored to further a compelling state interest. The second was a more lenient test as set forth in Burdick v. Takushi, 504 U.S. 428 (1992). Under the Burdick test, the Court must consider the character and magnitude of the potential injury to the Plaintiffs and the state interest behind the regulations, and then decide whether the state interest makes it necessary to restrict the right to vote. Because the Plaintiffs were likely to prevail under either test, the Court did not address the question of which test was more appropriate.

When applying the strict scrutiny test, the Court emphasized that the regulation must be narrowly tailored to protect a state interest. In this case, statements by the Secretary of State indicated that fraudulent in-person voting was not a problem in Georgia while absentee voting was. Because the Photo ID requirement addressed an element of voter fraud that was not a problem (in-person voting) and made it easier to vote absentee (an actual source of voter fraud), the Court found that the law was not narrowly tailored to address the state’s interest. Thus, under this test, the Photo ID requirement was an undue burden in violation of the First and Fourteenth Amendments.

The Court then applied the Burdick test. The first factor the Court considered was the character and magnitude of the potential injury. The injury that could arise under the Photo ID requirement was deemed severe. Problems of transportation, inability to wait in line, inability to miss work, and the fact that Department of Driver Services’ (who issued ids) offices were often difficult to reach would make it problematic for some residents to obtain photo ids. Although voters had the option to vote absentee instead of in person because the legislature had just lifted restrictions on absentee voting, there was no evidence that the new policies had been publicized, and thus this was not a viable alternative. The Court next turned to the state interest, which it deemed important. However, when the Court addressed whether the state interest made it necessary to impose restrictions on the right to vote, it found it did not. Using similar logic to that it used under the strict scrutiny test, the Court ruled that the restrictions were not narrowly tailored to prevent voter fraud and thus did not justify such a serious injury to voting rights. Therefore, under the Burdick test, the restrictions were an undue burden in violation of the First and Fourteenth Amendments. Because both tests found there was an undue burden, the Court found that the Plaintiffs were likely to prevail on the merits of this claim.

The Court next found that the Photo ID requirement was likely a poll tax in violation of the Twenty-Fourth Amendment. Registered voters wishing to vote in person must obtain a Photo ID card, even if they did not need a card for any other reason. The state charged $20 for a five year card and $35 for a ten year card. Although indigent voters (and those claiming to be indigent) could obtain a fee waiver, the Court found that the fact that some people could get around the tax did not change the fact it was a poll tax.

The Defendants had argued that the Photo ID Requirement was not a poll tax because most voters already had photo ids, and those that did not have them would not necessarily have to pay money—anyone could obtain a fee waiver by saying they were indigent or could vote absentee. In response, the Court stated that even viewing the requirement as only applying to the small group of voters without photo ids, it still created a material requirement for voting in violation of the Twenty-Fourth Amendment. First, there was a group of voters who were not indigent but could not afford a photo id. Those voters would have to falsely swear they were indigent in order to obtain a fee waiver. Second, even if no one had to pay for a photo id, there were still problems of transportation to where photo ids were issued as well as voters’ potential inability to stand in long lines or miss work. Third, voting absentee was not a viable alternative because there was no evidence that it was widely known that anyone could vote absentee without a photo id, and the absentee voting system was difficult to navigate and required advance planning. Thus, even if the Defendant’s arguments were accepted, the ways voters could avoid paying for a photo id were burdensome enough to constitute a material requirement as prohibited by Harman v. Forssenius, 380 U.S. 528 (1965).

In addressing the three other claims raised by the Plaintiffs, the Court found that the claim that the Photo ID requirement violated the Georgia constitution was barred from federal court by the Eleventh Amendment, and reserved ruling on the merits of the claims that Photo ID requirement violated the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Irreparable Harm:
The Court next addressed the second factor for issuing a preliminary injunction—would Plaintiffs suffer irreparable harm if a preliminary junction was not entered. The Court referred to its earlier findings that the Photo ID requirement likely imposed an undue burden on the voters and was a poll tax, reiterated the fact that few voters knew of the absentee voting alternative, and noted that it would be difficult for many voters to obtain photo ids. Since the Photo ID requirement was likely to disenfranchise many Georgia voters, the Court found that irreparable harm was likely without an injunction.

Threatened Injury to Plaintiffs Weighed Against Injury to the Defendants:
The Court then moved on to the third factor for issuing a preliminary injunction, weighing the potential harm to the Plaintiffs against the harm to the Defendants and the State. The Court recognized that the State and Defendants were likely to suffer inconvenience and expenses because of the preliminary injunction. It was likely that there might not be time to educate poll workers and voters, leading to confusion and the possibility that the rules might be inconsistently applied. Also, it would be difficult to have new voter certificates and posters reflecting the change prepared in time. However, the Court found that the right to vote was fundamental and preservative of all other rights. Thus the potential injury to the Plaintiffs outweighed the injury the injunction might cause to the State and Defendants.

Public Interest
Finally, the Court addressed the fourth factor for issuing a preliminary injunction—whether the injunction was in the public interest. The Court found that preserving the right to vote was clearly in the public interest.

Conclusion
Because the Court found the four factors for granting a preliminary injunction all favored its issuance, it issued a temporary injunction to prohibit the enforcement of the Photo ID requirement. In a footnote, the Court distinguished this case from League of Women Voters v. Blackwell, 340 F. Supp. 2d 823 (N.D. Ohio 2004), Bay County Democratic Party v. Land, 347 F. Supp. 2d 404, and Colorado Common Cause v. Davidson, No. 04CV7709, 2004 WL 2360485 (D. Colo. Oct. 18, 2004) which all involved voting regulations that permitted alternatives to photo ids as identification.