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Lawyers challenging the constitutionality of voter identification laws across the country said that last month’s decision by the U.S. Supreme Court, which upheld a voter identification law in Indiana, would have limited impact on their own cases. In fact, lawyers are moving forward in their cases by pointing out numerous factual differences, such as the distinctive requirements of their state’s voter ID law and a host of statistics that back up their claims. In a 6-3 vote, the Supreme Court held on April 28 that Indiana’s voter ID law does not violate the constitutional rights of voters, whose burdens in obtaining the required ID card were outweighed by the state’s concerns over voter fraud. Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008). Similar cases are pending in four states. In a case before the 11th U.S. Circuit Court of Appeals, plaintiffs’ lawyers claim they have more statistics to bolster a challenge to Georgia’s voter ID law than did the plaintiffs in the Crawford case. In an Arizona case that goes to trial on July 1, plaintiffs’ lawyers said that state’s voter ID requirement is far more restrictive, and thus unconstitutional, than the law in Crawford. A plaintiffs’ lawyer in New Mexico plans to argue before the 10th Circuit that a voter ID ordinance enacted by the city of Albuquerque is unconstitutional because its requirements are vague, unlike those in Indiana. And in Mississippi, in a case before the 5th Circuit, the plaintiffs’ lawyer said that a judge’s order imposing a voter ID requirement has no relation to Crawford, which involved state legislation. “ Crawford is certainly going to have an impact,” said Jon Greenbaum, director of the Voting Rights Project for the Lawyers’ Committee for Civil Rights Under Law, a Washington organization representing plaintiffs in the Georgia and Arizona cases. But, he said, “the opinion could have been worse.” In the Crawford case, the plaintiffs argued that the law violated, among other things, the right to vote under the 14th Amendment. State officials said the law would prevent potential fraud. Using a balancing test, the Supreme Court found that the state’s interests in preventing fraud trumped potential burdens on voters. The requirements do “not qualify as a substantial burden on the right to vote,” wrote Justice John Paul Stevens in the majority opinion. In separate dissenting opinions, three high court justices found that the law would burden voters who are elderly, poor and disabled. In Georgia, the plaintiffs, including three voters, sought to invalidate the state’s voter ID law, which, they claim, imposes an undue burden on the right to vote and violates the equal protection clause of the 14th Amendment. Common Cause/Georgia v. Billups, No. 07-cv-14664 (11th Cir.). Last year, a federal judge upheld the law; the plaintiffs appealed. Initial briefs before the 5th Circuit addressing the Crawford decision are due on May 28. “In the Georgia case, we have stronger facts than they had in Indiana,” Greenbaum said. For instance, the former secretary of state testified about a “data match” that found hundreds of thousands of registered voters who do not have a government-issued ID, such as a driver’s license, said plaintiffs’ attorney David Brackett, a partner at Atlanta’s Bondurant, Mixson & Elmore. Also, in Crawford, the Supreme Court agreed with state officials that the law was necessary to combat incomplete and inaccurate voter rolls. In Georgia, the voter database is updated monthly, said Emmet Bondurant, Brackett’s co-counsel at Bondurant Mixson & Elmore. “That takes away one of the nails on which the court hung its hat,” he said. Mark Cohen, a lawyer for the state defendants and a partner at Atlanta-based Troutman Sanders, referred calls to the Georgia Attorney General’s Office, which did not return calls seeking comment. In Arizona, three cases were consolidated before a federal judge in the District of Arizona. Gonzalez v. State of Arizona, No. 2:06-cv-01268 (D. Ariz.). Earlier this month, both sides filed briefs addressing the Crawford decision. “In Arizona, we think the differences are significant enough that the outcome ought to be different,” said David Rosenbaum, an attorney at Phoenix-based Osborn Maledon who represents the plaintiffs. Unlike Indiana’s law, Arizona’s requires identification when registering to vote, not just at the polls, he said. Further, Indiana’s voter IDs were free. In Arizona, voters must provide their own valid form of ID, such as a driver’s license, which, if voters don’t already possess, costs money to obtain. Mary O’Grady, solicitor general at the Arizona Attorney General’s Office, declined to comment. Less Restrictive Law In briefs, defense attorneys said that the range of options permitted as valid ID make their state’s voter requirements less restrictive than those in Indiana. In the 10th Circuit, plaintiffs, including three voters, argued that a city ordinance in Albuquerque creates an unconstitutional burden on voters; the city clerk said the ordinance prevents voter fraud. ACLU v. Millie U. Santillanes, No. 07-02067 (10th Cir.). Briefs on the effect of the Crawford case are due next month. Last year, a federal judge found that the ordinance violated the 14th Amendment because of the discrepancies among state officials who sought to define its requirements. Andrew Schultz, a director at Albuquerque’s Rodey, Dickason, Sloan, Akin & Robb, the plaintiffs’ attorney, said “there’s no question that Crawford changes the landscape. But we simply don’t think it impacts the essential issues that are inherent to the challenges to the Albuquerque ordinance.” He said the primary difference is that the Albuquerque ordinance is ambiguous because it requires a “current” and “valid” identification, which “could be anything from a driver’s license to a Costco membership card,” he said. Randy Autio, acting city clerk in Albuquerque, disagreed. “That’s not an ambiguous or unclear definition,” he said. Further, he added, the ordinance allows voters to present multiple forms of ID, which is more inclusive than the requirements in Crawford. In Mississippi, a federal judge ordered state officials to institute a voter ID law as part of a ruling last year in which he found that a law allowing anyone to vote in the state’s primaries violated the Mississippi Democratic Party’s First Amendment right to associate. Both sides appealed, protesting the judge’s voter ID requirement. In March, the 5th Circuit heard oral arguments. Mississippi State Democratic Party v. Gov. Haley Barbour, No. 07-60667 (5th Cir.). Ellis Turnage, solo practitioner in Cleveland, Miss., who represents the Mississippi Democratic Party, said Crawford had no bearing on the Mississippi case because it involved state legislation, not a judge’s order.

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