The ongoing fight to overturn Oklahoma’s voter identification law – a legal challenge that has spanned more than five years – could soon face a new obstacle.
The state Senate passed a joint resolution this week that seeks to amend the Oklahoma Constitution with language requiring “proof of identity” to be able to vote.
In practice, this would have little to no impact on the state’s existing law that requires voters to show a voter ID card or a photo ID issued by the U.S. government, Oklahoma state government or an Oklahoma tribal government.
Elevating the requirement to the constitutional level would better shield it from lawsuits, including one that is now before the state Supreme Court.
That legal challenge was first filed in 2012 in response to the 2010 state question that created the voter ID requirement. After the case moved back and forth between the Supreme Court and district court over procedural issues, Oklahoma County District Judge Aletia Haynes Timmons dismissed the challenge in August.
Tulsa attorney James Thomas appealed the ruling and the Supreme Court accepted jurisdiction of the case late last year, court records show. Briefs are due later this spring, but a hearing has yet to be set.
Thomas said he is confident the state’s high court will ultimately agree with him that the voter ID requirement has kept thousands from exercising their constitutional right to vote.
But he said adding the constitutional amendment would undermine his current legal strategy since it is largely based around his argument that the voter ID law runs counter to the current language in the Constitution.
“It would be a travesty,” he said. “I would still challenge the provision, but I would have to find a new theory (to base the challenge on).”
Thomas said he also believes that the new legislation is being pushed because lawmakers fear the Supreme Court will overturn the state law.
Sen. Anthony Sykes, R-Moore, who is sponsoring the measure, noted that the threat of legal challenge is one of the reasons the constitutional requirement is needed.
“This would say the will of the people can’t be overturned,” he said. “This just reinforces and reflects the will of the people.”
The proposal goes on to provide the Legislature the authority to pass laws that determine what type of ID is required. If it passes the House, it would go before voters in 2018.
About 74 percent of voters approved the voter ID state question. And given that margin of victory, both Sykes and Thomas said they expect voters to pass the constitutional amendment if the House passes the measure and it becomes a new state question.
The victory could be short-lived if the Supreme Court overturns the current law. And despite voter ID opponents’ successful legal challenges elsewhere, there is no assurance the court will follow that lead.
According to the National Conference of State Legislatures, 33 states have laws requesting or requiring voters to show some form of identification at the polls. The remaining states use other methods to verify voter identity, such as signing an affidavit or providing personal information.
Wisconsin, Texas and North Carolina recently saw their voter ID laws overturned or partially overturned.
In all those cases, the states’ laws required voters without valid IDs to request provisional ballots and take additional steps for their votes to be counted.
Oklahoma’s law is somewhat less strict. It allows voters without IDs to request provisional ballots and sign sworn affidavits to confirm identity. Election workers later verify the ballots.
Thomas contends the measure still has placed an undue burden on residents who don’t have a driver’s license or other ID.
“What this does is target the poor, the homeless, the black and the elderly,” he said. “It’s a very dangerous attack on our democracy.”
Lawyers for the state argue the ability to use the free voter registration card or cast a provisional ballot ensures anyone can still vote if they want.
“Plaintiff’s argument rests on one false premise that individuals must have a driver’s license or a photo ID to vote,” says the state’s court filing in response to Thomas’ appeal to the Supreme Court. “This assertion is patently false.”
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