Recent State Election Law Challenges: In Brief
Released: 2016-11-02T00:00:00

D uring the final months and weeks leading up to the November 8, 2016, presidential election, courts across the country have ruled in numerous challenges to state election laws. As a result of some of these rulings, several laws have been recently invalidated, enjoined, or altered. Leading up to the issuance of such rulings, there had been uncertainty in some states as to whether, or how, to administer certain state election laws during this election cycle. In some cases, litigation is still ongoing.

For example, in Michigan, North Carolina, Ohio, and Texas there have been recent court rulings affecting the laws regulating early voting, voter photo identification (ID) requirements, registration procedures, straight-party voting, and voter rolls. These decisions are notable because of their impact on state election laws shortly before a presidential election, and in some cases, because they invalidated laws that were recently enacted. Furthermore, the rulings in North Carolina and Texas have drawn attention because the challenged state laws were held, in part, to violate Section 2 of the Voting Rights Act, which generally prohibits discriminatory voting laws based on race, color, or membership in a language minority and has typically been applied in the context of challenges to redistricting maps.

This report begins by setting forth key constitutional provisions relevant to recent state election law challenges. Next, it discusses federal statutory provisions contained in the Voting Rights Act and the National Voter Registration Act, which have been invoked in recent cases, and briefly examines pertinent Supreme Court precedent. Then, based on that legal framework, it provides an overview of several recent challenges to state election laws in Michigan, North Carolina, Ohio, and Texas that resulted in major decisions by the various federal courts of appeals as illustrative examples of the types of challenges that have been playing out in the courts. Finally, the report discusses some potential implications of these challenges.

Background

Although presidential and congressional elections have national impact, they are primarily administered by state laws. The Elections Clause of the U.S. Constitution provides to the states the initial and principal authority to administer elections within their jurisdictions. As a result of this decentralized authority, there is significant variation among the states as to how the voting process and elections are administered. For example, states have enacted differing laws addressing whether and to what degree voters can cast ballots prior to the day of an election, known as early voting; the types of identification required to cast a ballot, including voter photo ID requirements; and voter registration procedures, such as whether to permit registration on the same day as an election. In addition, Congress has enacted specific overriding federal laws, including the Voting Rights Act and the National Voter Registration Act, with which states must comply in administering the election process.

Constitutional Provisions

In recent cases, state election laws have been challenged under the Fourteenth Amendment's guarantee of equal protection and the Twenty-fourth Amendment's prohibition on poll taxes. Both provisions are set forth below:

Fourteenth Amendment Equal Protection Clause : "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws."

Twenty- Fourth Am endment: "The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax."

In a relatively new application of the law, recent challenges to state election laws have also invoked the Voting Rights Act of 1965, which was enacted under Congress's authority to enforce the Fifteenth Amendment, set forth below:

Fifteenth Amendment: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation."

Voting Rights Act

Section 2 of the Voting Rights Act (VRA) , discussed be low, is a primary section of the law and applies nationwide. Recently, some state voting and election administration laws have been challenged under Section 2. This is a notable development in election law because Section 2 has most frequently been invoked in the context of redistricting and has rarely been applied outside of that context. In 2013, another key provision of the VRA, Section 5—known as the preclearance provision—was rendered inoperable by the U.S. Supreme Court in Shelby County v. Holder . As Section 5 required prior approval of proposed changes to voting and election laws by several states and jurisdictions, and has been referenced in some of the recent court rulings, for contextual purposes, it is also discussed below.

Section 2

Section 2 of the VRA provides a right of action for private citizens or the government to challenge discriminatory voting practices or procedures, including the diminishing or weakening of minority voting power. Specifically, Section 2 prohibits any voting qualification or practice applied or imposed by any state or political subdivision that results in the denial or abridgement of the right to vote based on race, color, or membership in a language minority. The statute further provides that a violation is established if, based on the totality of circumstances, electoral processes are not equally open to participation by members of a racial or language minority group in that its members have less opportunity than other members of the electorate to elect representatives of their choice.

In the landmark decision Thornburg v. Gingles , the Supreme Court held that a violation of Section 2 is established if based on the "totality of the circumstances" and "as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice." In order to facilitate determination of the totality of the circumstances, the Court listed the following factors, which originated in the legislative history accompanying enactment of Section 2:

1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivisions is racially polarized;

3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;

4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;

5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;

6. whether political campaigns have been characterized by overt or subtle racial appeals;

7. the extent to which members of the minority group have been elected to public office in the jurisdiction.

Section 5 Preclearance Inoperable

Until 2013, when the Supreme Court issued its ruling in Shelby County v. Holder , Section 5 of the VRA was relied on to require several states and jurisdictions covered under Section 4(b) of the act to obtain prior approval or preclearance for any proposed change to a voting law. In order to be granted preclearance, the state or jurisdiction had the burden of proving that the proposed voting change would have neither the purpose nor effect of denying or abridging the right to vote on account of race or color, or membership in a language minority group. Moreover, as amended in 2006, the statute expressly provided that its purpose was "to protect the ability of such citizens to elect their preferred candidates of choice." Covered jurisdictions could seek preclearance from either the U.S. Attorney General or the U.S. District Court for the District of Columbia. If preclearance was not granted, the proposed change to election law could not go into effect.

In Shelby County v. Holder the Court invalidated Section 4(b) of the VRA. The Court held that the application of the coverage formula to certain states and jurisdictions departed from the principle of equal sovereignty among the states without justification in light of current conditions. Although the Court invalidated only the coverage formula in Section 4(b), by extension, Section 5 was rendered inoperable.

As a result of the Court's decision, nine states, and jurisdictions within six additional states, that were previously covered under the formula are no longer subject to the VRA's preclearance requirement. The covered states were Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. The six states containing covered jurisdictions were California, Florida, Michigan, New York, North Carolina, and South Dakota. Shortly after Shelby County was decided, some states that were formerly required under Section 5 to preclear proposed voting changes, including North Carolina, whose law was the subject of a recent decision by the U.S. Court of Appeals for the Fourth Circuit, enacted new election laws. However, other states not subject to preclearance, including Ohio, whose law was the subject of recent decisions by the U.S. Court of Appeals for the Sixth Circuit, also enacted changes to their voting laws over the last several years, prompting court challenges.

National Voter Registration Act

Another relevant law with regard to recent election law challenges, including one regarding the laws of the state of Ohio, is the National Voter Registration Act (NVRA). The NVRA was enacted in 1993 to, among other things, "establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office; ... [and] to ensure that accurate and current voter registration rolls are maintained." Relevant to the recent challenge in Ohio, the law forbids states from removing the names of registrants for federal elections from the official voter rolls, which list eligible voters, except under certain circumstances. The law provides an exhaustive list of circumstances that can justify removal from the voter rolls, including a change in the registrant's residence. Further, the statute requires that states "conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters" because of a change in residence by the registrant, in accordance with subsections (b), (c), and (d) of the law. Subsection (b) sets forth two additional constraints on the states. All voter roll maintenance procedures must first, be uniform, nondiscriminatory, and comply with the VRA; and second, such procedures cannot result in the removal of any name from the official voter rolls for federal elections because an individual failed to vote.

In 2002, the second constraint was further modified by the Help America Vote Act (HAVA). Specifically, HAVA construes the second constraint as not prohibiting a state from using procedures described in subsections (c) and (d), discussed below, to remove an individual from the official voter roll if the individual has failed either to notify the registrar or respond during a specified period to a notice, and then, has not voted or appeared to vote in two or more consecutive federal elections. Subsections (c) and (d) provide two final constraints on the states. First, subsection (c)(2)(A) provides that any program to remove systematically the names of ineligible voters from the official voter rolls for federal elections must be completed within 90 days of a federal primary or general election. Second, subsection (d)(1) prohibits the states from removing the names of registrants from the voter rolls because a registrant changed residences without first sending the registrant a confirmation.

Supreme Court Precedent Upholding State Voter Photo Identification Law

In 2008, the Supreme Court issued a decision that has been invoked, and sometimes distinguished, in recent rulings evaluating the constitutionality of state voter photo ID laws. In Crawford v. Marion County Election Board , the Supreme Court upheld an Indiana voter photo ID law against a facial challenge under the Equal Protection Clause of the Fourteenth Amendment. The Indiana law requires voters to present a photo ID card issued by the government.

A majority of the Court in Crawford did not agree on a rationale for upholding the voter photo ID law. The lead opinion held that although the law imposes a "somewhat heavier burden" on a "limited number" of people, the severity of that burden is mitigated by the fact that eligible voters may cast provisional ballots that will ultimately be counted. Moreover, the opinion reasoned, even if the burden cannot be justified as to a few voters, that fact would be insufficient to require the relief sought by the petitioners, which was to invalidate the voter photo ID law in all its applications. In conclusion, the lead opinion determined that Indiana's voter photo ID law imposed only a "limited burden" on voting rights that is justified by the state interest in protecting election integrity. The opinion also announced that if a law is nondiscriminatory, and supported by valid, neutral justifications, then such justifications are still relevant to consider even if one of the legislature's motivations in enacting the law was to pursue partisan political interests. Importantly, although the lead opinion in Crawford rejected a facial challenge (i.e., a case seeking to invalidate the statute in all its applications) to a voter photo ID law, it appears to have left open the possibility of challenges to particular applications of such laws (or "as applied" challenges) if greater evidence of the burdens imposed on voters' rights could be shown.

Recent Challenges to State Election Laws

As the November 8, 2016, presidential election draws near, various court rulings have invalidated, enjoined, or required modification to several state election laws. Litigation in some states continues. Recent rulings in Michigan, North Carolina, Ohio, and Texas are illustrative examples.

Michigan Straight-Party Voting

Straight-party voting, also known as straight-ticket voting, permits a voter to cast a vote for a political party's entire slate of candidates by making a single notation on the ballot. On July 21, 2016, a federal district court preliminarily enjoined a 2016 Michigan law that ended straight-party voting, holding that its elimination would reduce African American voters' opportunity to participate in Michigan's political process. The court ruled it was likely that the plaintiffs would succeed on the merits under the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the VRA. As a result, the option of straight-ticket voting will appear on the ballot in Michigan for the November 8 election.

Subsequently, on August 17, 2016, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) denied the Michigan Secretary of State's motion for a stay pending appeal. Similar to the lower court, the Sixth Circuit panel held that the Secretary had failed to show first, that the state had a likelihood of success on appeal as to an equal protection challenge. That is, the elimination of straight-party voting, the court held, burdened voting rights by increasing wait times and voter confusion, particularly in communities with African American voters, thereby increasing the risk of individuals not having their votes counted. According to the court, the evidence presented to the lower court demonstrated that there is an "extremely high" correlation between the African American voting population and the use of straight-party voting, resulting in a disproportionate burden on African Americans. Furthermore, the court determined that the justifications proffered in support of eliminating straight-party voting, including the fostering of voter knowledge and engagement, were inadequate. Second, the Sixth Circuit panel held that the Secretary showed no likelihood of appellate success as to a challenge under Section 2 of the VRA because, as the lower court determined, African American voters were more likely than white voters to use straight-party voting.

On September 9, 2016, the U.S. Supreme Court, by a 6-2 vote, denied an application by the Michigan Secretary of State seeking a stay of the Sixth Circuit's ruling that required the state of Michigan to maintain the option of straight-party voting on the ballot for the November 8 election. Justices Thomas and Alito would have granted the stay.

North Carolina Voter Photo ID Requirement, Early Voting, Same-Day Registration, and Preregistration

On July 29, 2016, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) invalidated and permanently enjoined North Carolina's voter photo identification (ID) requirement, along with provisions of law that reduced the days of early voting and eliminated same-day registration, out-of-precinct voting, and preregistration. The partially divided court held that the laws were enacted with a racially discriminatory intent in violation of the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the VRA. Reversing and remanding the lower court's ruling dismissing the challenges, this decision reinstated an additional week of early voting, same-day voter registration, out-of-precinct voting, and preregistration procedures for 16 and 17 year olds.

As a threshold matter, the Fourth Circuit observed that, similar to laws that expressly discriminate on the basis of race, if a law is motivated by a racially discriminatory purpose, it is unconstitutional. In determining whether racially discriminatory intent motivates a facially neutral law, the court interpreted Supreme Court precedent as requiring consideration of several factors, including first, the historical background in a case. Here, the appellate court determined that the lower court clearly erred in finding minimal evidence of official discrimination in North Carolina since the 1980s and instead identified evidence of attempts by the legislature "to suppress and dilute" African American voting rights.

Second, the Fourth Circuit noted that a court is required to consider the sequence of events leading to the challenge to determine whether a law was enacted because of an improper motive. According to the court, the record of the case showed that immediately after the Supreme Court's 2013 ruling that rendered the preclearance requirements of the VRA inoperable, the North Carolina legislature substantially expanded an earlier photo ID bill and "rushed through ... the most restrictive voting legislation seen in North Carolina since enactment of the Voting Rights Act of 1965." The court held that the lower court erred by not drawing "the obvious inference" of discriminatory intent from this sequence of events.

Third, the appellate court considered Supreme Court precedent recognizing the relevance of legislative history to determine whether a law was enacted as a result of racially discriminatory purpose. In this case, the court determined it relevant that the legislature requested and utilized racial data in enacting the challenged statute, including a breakdown by race of DMV-issued ID ownership, absentee and early voting, and same-day registration, which showed that African Americans disproportionately use such procedures. When compared to the "unpersuasive non-racial explanations the State proffered for the specific choices it made," the court considered this element of the legislative history probative of the legislature's intent in enacting the law.

Last, the Fourth Circuit considered whether the law impacts one race more than another to determine racially discriminatory intent. The court found error in the lower court's conclusion that the voting procedures eliminated by the law, including early voting and same-day registration, were simply "more convenient" and "preferred" by African Americans. African-American voters disproportionately use the voting procedures eliminated or reduced by the challenged law as a result of socioeconomic disparities, the court held, and such use is not borne from a simple "preference." The court concluded: "Registration and voting tools may be a simple 'preference' for many white North Carolinians, but for many African Americans, they are a necessity."

The court also noted that its holding was not meant to suggest that any member of the North Carolina legislature "harbored racial hatred or animosity toward any minority group." The court concluded that the totality of the circumstances evidenced that the law was enacted to "entrench" the majority party's control of the legislature, and even if enacted for such "partisan ends," the court held, "targeting voters who, based on race, were unlikely to vote for the majority party ... constituted racial discrimination."

Finally, the court held that the challenged provisions of the North Carolina law, including the voter photo ID requirement, were not tailored to achieve its stated justifications and in several ways, were, in the court's views, "solutions in search of a problem." The court concluded that the legislature's reliance on Crawford , upholding an Indiana voter photo ID law, was misplaced. Distinguishing Crawford , the court observed that the challengers in that case did not allege intentional race discrimination, but instead challenged the law facially, as unduly burdensome on the right to vote generally. Moreover, the court found that the evidence established, at least partially, that the North Carolina law was motivated by racial considerations. These distinctions, among others, contributed to the court determining that the deference afforded to the legislature in Crawford was inapplicable in this case.

On August 31, 2016, the U.S. Supreme Court denied North Carolina's request for a stay of the Fourth Circuit ruling. The vote by the Court was 4-4, except as to the preregistration provision, which was denied by a 7-1 vote. As a result, the changes enacted in 2013 to North Carolina election law will not be in effect for the November 8 election.

On October 13, 2016, a federal district court denied an emergency request by the plaintiffs to expand early voting in five North Carolina counties, determining that the state of North Carolina had complied with the injunction, and that granting the request would create logistical difficulties and potential voter confusion.

Ohio Voter Rolls, Early Voting, and Same-Day Registration

On September 23, 2016, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) held that an Ohio law setting forth the process for purging the names of inactive voters from the official voter rolls violates the National Voter Registration Act (NVRA). By a 2-1 vote, the appellate court reversed and remanded a lower court ruling.

Among other things, the Sixth Circuit held that an Ohio voter roll procedure, known as the "Supplemental Process," violates subsection 8(b)(2) of the NVRA, which prohibits roll maintenance processes that result in the removal of the name of any person from the official voter rolls for federal elections "by reason of the person's failure to vote." Ohio law sets forth two processes for purging the voter rolls of those who are no longer eligible to vote because they have moved outside their county of registration. The first is the National Change of Address (NCOA) Process, whereby the names and addresses in a statewide voter registration database are compared with those in the NCOA database, which contains names and addresses of individuals who filed changes of address with the U.S. Postal Service. Thereafter, based on the comparison of the two databases, the Secretary of State sends to each county board of elections a list of voters who appear to have moved, and in turn, the county boards send confirmation notices to those individuals. Recipients of the confirmation notices are removed from the voter rolls if they (1) do not respond to the confirmation notice or update their registration; and (2) do not subsequently vote during a period of four consecutive years that includes two federal elections. The second process, known as the Supplemental Process, is similar to the NCOA Process, except that instead of identifying voters who may have moved as indicated by the NCOA database, each county board of elections compiles a list of registered voters who have not engaged in any "voter activity" for two years. For the purposes of the Supplemental Process, "voter activity" includes filing a change of address; filing a voter registration card; casting an absentee ballot; casting a provisional ballot; or voting on election day. After compiling a list of inactive voters, each county board of elections sends a confirmation notice to those on its list. Those on the list are removed from the rolls if they subsequently fail to vote for four years and fail to either respond to the notice or re-register.

In sum, the Sixth Circuit panel interpreted the Ohio Supplemental Process as purging from the official voter rolls anyone who failed to vote for four years, who also either failed to respond to a confirmation notice mailed to the voter seeking to confirm their address or failed to re-register. This process, the court held, results in the removal of names from the voter rolls "solely by reason of a failure to vote" in violation of the NVRA. The NVRA "would have no teeth at all," the court warned, if states would be in compliance simply by including the act of voting in a disjunctive list of activities that a registrant must fail to do in order to trigger the confirmation notice procedure. In other words, the court explained, a state cannot avoid the determination that its voter roll maintenance process is tantamount to removing names because of failure to vote simply "by providing that the confirmation process is triggered by a registrant's failure either to vote or to climb Mt. Everest or to hit a hole-in-one."

On October 19, 2016, the lower court ordered the state of Ohio to allow voters who were illegally removed from the official voter rolls under the Supplemental Process to cast a provisional ballot during the November 8, 2016, election, in accordance with procedures set forth by the court.

In contrast to its ruling on voter rolls, on August 23, 2016, the Sixth Circuit upheld a 2014 Ohio law that eliminated a period of early voting and the availability of same-day registration, known as "Golden Week," against a challenge under the Fourteenth Amendment Equal Protection Clause and Section 2 of the VRA. The court held that the state of Ohio's justifications for the law outweighed and justified the minimal burden that it would place on some voters, and that the challengers failed to show that the law had a disparate impact on minority voters. Accordingly, finding no cognizable injury, by a 2-1 vote, the appellate court reversed and vacated a lower court ruling.

In evaluating the equal protection claim, the court invoked Supreme Court precedent, determining that it must first consider the degree to which the law burdens the right to vote. Taking into account the multitude of voting options available in Ohio, especially in comparison to other states, the court determined that the law did not impose a "true" burden on voting. At most, according to the court, eliminating a period of early voting constituted a mere withdrawal of just one of many convenient voting methods. Criticizing the lower court for placing an "inordinate weight" on its finding that some African American voters may prefer the option of early voting, the court concluded that the law imposed only a "minimal" burden on some African American voters. In conclusion, the court held that the law was minimally burdensome and nondiscriminatory.

Accordingly, the court determined that a deferential standard of review was appropriate, under which the state only needed to advance "important regulatory interests." In this case, the state of Ohio argued that its law serves four legitimate interests: (1) preventing voter fraud; (2) reducing costs; (3) reducing administrative burdens; and (4) increasing voter confidence and preventing voter confusion. In comparison to the state interests proffered in Crawford , the court determined that the interests put forth by the state of Ohio were "even better substantiated" than those accepted by the Supreme Court in that case, including concrete, albeit inconclusive, evidence of voter fraud during Golden Week's same-day registration period. In sum, the court held the state justifications for the law "easily outweigh and sufficiently justify the minimal burden that some voters may experience," and therefore rejected the challengers' equal protection claim. Similarly, the court held that the Ohio law did not violate Section 2 of the VRA because it does not result in less opportunity for African American voters, in comparison to other members of the electorate, to participate in the political process. In fact, the court determined, when compared to the rest of the electorate, statistical evidence indicated that the political processes in Ohio are equally open to African Americans.

On September 13, 2016, the U.S. Supreme Court denied an application by the appellants seeking a stay of the Sixth Circuit's ruling.

Texas Voter Photo ID Requirement

On July 20, 2016, issuing a plurality opinion, a divided en banc panel of the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) ruled that a Texas voter photo ID law must be administered in such a manner to rectify a discriminatory effect on voters who do not have the required ID or are unable to obtain such ID reasonably. Affirming a lower court, a plurality of the court concluded that the voter photo ID law has a discriminatory effect on minorities' voting rights and therefore violates Section 2 of the VRA. While the court did not invalidate the law, it remanded for consideration by the district court of an appropriate remedy. The court also held that the indirect cost on voters who were born outside of Texas to obtain an ID was not the equivalent of an unconstitutional poll tax because the law applies equally to all Texas voters, not just to those who are born out of state. On the issue of whether the law was enacted with a discriminatory intent , however, in contrast to the Fourth Circuit ruling discussed above, the court reversed the lower court's judgment and remanded for the district court to consider in light of guidance that the appellate court provided.

Regarding the finding that the voter photo ID law has a discriminatory effect in violation of Section 2 of the VRA, the plurality opinion invoked Supreme Court precedent. As required under such precedent, the opinion determined that the challengers showed not only that the law imposes a burden on minorities, but also that it interacts with social and historical conditions to cause an inequality in the opportunities of minority voters to elect preferred representatives. The opinion approved of the lower court's analysis and resulting determination that (1) the law burdens Texans living in poverty, who are less likely to have, or to be able to procure, the requisite ID; (2) a disproportionate number of Texans living in poverty are African Americans and Hispanics; and (3) such minority voters are more likely to be living in poverty because they bear the socioeconomic effects of historical racial discrimination. Further, the opinion determined that the district court thoroughly evaluated the totality of the circumstances, with each finding well supported, and that the state of Texas had failed to contest many of the factual findings.

In August, the district court entered an order approving a plan that, among other things, for the November 8 election, allows certain Texas voters without the required voter photo ID, and who cannot obtain such ID due to a reasonable impediment, to cast a ballot after completing a "reasonable impediment declaration." Furthermore, in September, the district court ordered the state of Texas to ensure that voter education materials accurately reflect the court's August order setting forth how the voter photo ID law is to be administered for the November 8 election.

On September 23, the state of Texas filed a petition for writ of certiorari in the U.S. Supreme Court, arguing for a reversal of the Fifth Circuit's holding that the law has a discriminatory effect. If the Court agrees to hear this case, a decision would be expected after November 8, and therefore would not affect the administration of voting in Texas for the 2016 election.

Implications

Although the 2016 presidential election is drawing near, state election laws have been subject to recent changes by the courts. Decisions such as those evaluating laws in North Carolina and Texas, while still in the nascent stages, signal a willingness by the courts to hold that state election laws violate Section 2 of the VRA. As Section 2 has generally been invoked in the context of redistricting, this is a relatively new application of the law. Therefore, the attendant case law is just beginning to develop. Likewise, questions of whether specific voter photo ID laws comply with the Fourteenth Amendment Equal Protection Clause and the VRA continue to be answered. Although the Supreme Court upheld the constitutionality of an Indiana voter photo ID law in 2008 against a facial challenge, some courts have concluded that other state laws are distinguishable from the Indiana law or have evaluated such laws under Section 2 of the VRA. It is possible that the Supreme Court may ultimately decide to revisit this issue.