Full opinion text
MEMORANDUM OPINION AND ORDER ARMIJO, District Judge. THIS MATTER comes before the Court on the Defendant’s Motion for Summary Judgment [Doc. 63] filed on September 13, 2006, and the Plaintiffs’ Motion for Summary Judgment [Doc. 65] filed on September 14, 2006. Both motions address the constitutionality of an amendment to the Election Code of the Albuquerque City Charter that a majority of voters approved in a municipal election held on October 4, 2005. [Doc. 1.] The October 2005 amendment to the City Charter generally requires Albuquerque voters to display a current and valid photographic identification card (“photo ID”) in order to be able to vote at all future municipal elections, unless they choose to vote by means of an absentee ballot. The City contends that the new law helps to advance its interest in preventing voter fraud. Defendant Millie Santillanes is the City Clerk for the City of Albuquerque and is charged with administering City elections. She is sued in her official capacity only. The Plaintiffs in this case consist of three organizations and three individuals. Plaintiff League of Women Voters of Albuquerque/Bernalillo County, Inc. (the League) is a non-partisan, non-profit membership organization with members who are registered to vote and who customarily vote on election day in the City of Albuquerque’s municipal elections. The League engages in a number of voter-education efforts in proximity to each election date. Plaintiff SAGE Council (the Council) is a New Mexico non-profit corporation engaged in efforts to protect the voting rights of Native Americans and educate them about voting procedures in order to increase their participation in elections in which they are eligible to vote. Plaintiff Coalition to End Homelessness (the Coalition) is a New Mexico non-profit corporation engaged in efforts to end homelessness. Some of the Coalition’s organizational members are involved in registering their homeless clients to vote in Albuquerque. Plaintiffs Anne Kass, Alexandra Kazaras, and Barbara Grothus are all individuals voters who reside in Albuquerque and have expressed an intention to vote in person at their respective precinct polling places on the next municipal election day, and to make use of all the information that becomes available before election day in choosing who and what to vote for. All of the Plaintiffs contend that the October 2005 City Charter amendment imposes an unconstitutional burden on their right to vote in Albuquerque’s municipal elections. They object to being subjected to more stringent identification requirements because they (or their members or constituents) choose to vote in person at their precinct polling place on municipal election day instead of applying for and casting an absentee ballot. Plaintiffs also object to being subjected to different identification requirements based on how the October 2005 amendment is interpreted by different election officials within city government or at the polling places. Striking an appropriate balance between the Plaintiffs’ right to vote and the City’s interest in regulating its elections is a task that requires careful consideration by this Court. There is no question that the City of Albuquerque has a compelling interest in preventing voter fraud and protecting the integrity of its municipal election procedures. It is also beyond dispute that home-rule municipalities such as the City of Albuquerque have the authority to regulate the manner in which their municipal elections are conducted. Such authority is limited, however, by the Equal Protection Clause of the Fourteenth Amendment. Our Supreme Court has long recognized that voting is a “fundamental political right, because preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. For this reason, the Equal Protection Clause requires, and I apply here, heightened judicial scrutiny of an election law which substantially burdens the fundamental right to vote and provides election officials with such unbridled discretion that arbitrary or disparate treatment of similarly situated voters is almost certain to result. See Bush v. Gore, 531 U.S. 98, 105, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (per curiam). After careful consideration of the evidence of record in this case, and for the reasons articulated below, I conclude that the October 2005 City Charter amendment, as written, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The proper remedy for this violation is to declare the October 2005 City Charter amendment unconstitutional and enjoin City officials from enforcing it in future municipal elections. In order to ensure that the parties are clear on what election procedures apply in the absence of the October 2005 City Charter amendment, the Court will allow further briefing on this issue before entering a final judgment in this matter. I reach a different conclusion with respect to Plaintiffs’ alternative theory that the City’s photo ID requirement implicates their right to free expression under the First Amendment to the United States Constitution. This alternative theory has no application to the facts of this case. Therefore, my decision to enjoin the City from enforcing the October 2005 City Charter amendment rests solely on the conclusion that the specific photo ID requirement at issue here violates the Equal Protection Clause. My decision is limited to the evidence of record in this case and does not imply that all photo ID legislation relating to elections is unconstitutional per se. Having considered the parties’ submissions, the relevant law, and otherwise being fully advised in the premises, the Court grants the parties’ cross-motions for summary judgment in part and denies those motions in part for the reasons set forth below. I. BACKGROUND A. Procedural History On October 27, 2005, Plaintiffs filed this civil action against Defendant Millie Santil-lanes in her official capacity as the City Clerk charged with administering the City of Albuquerque’s municipal elections. With the consent of the Defendant, Plaintiffs amended their Complaint on January 3, 2006, and again on April 24, 2006. [Doc. 5, 20.] Plaintiff American Civil Liberties Union of New Mexico (ACLU) was dismissed by stipulation of the parties on August 29, 2006, in conjunction with the withdrawal of a motion for a protective order concerning Defendant’s deposition questions that sought disclosure of the sources of the ACLU’s funding. [Doc. 49, 50, 52, 53.] On September 13, 2006, the Court granted Plaintiffs’ motion to voluntarily dismiss Counts II, III, IV, and V of their Second Amended Complaint. [Doc. 20, 69.] As a result, Counts I and VI of the Second Amended Complaint are the only claims which remain pending in this action. These two remaining counts assert violations of the First and Fourteenth Amendments to the United States Constitution. After completing discovery, the parties filed cross-motions for summary judgment on Plaintiffs’ remaining claims. [Doc. 63, 65.] The American Center for Voting Rights Legislative Fund (ACVR) and the Brennan Center for Justice at NYU School of Law (Brennan Center) each were granted leave to file amicus briefs in conjunction with the briefing on the parties’ summary-judgment motions. [Doc. 42, 57.] The parties and amici also were granted an extended briefing schedule on those motions [Doc. 67, 72, 73], with briefing completed on October 25, 2006. [Doc. 79, 81.] The parties requested and received an extension of time to complete a proposed pretrial order until they receive a ruling on their cross-motions for summary judgment. [Doc. 83, 84, 85.] B. The Existing Framework of Federal and State Election Laws The amendment to the City Charter that a majority of Albuquerque voters approved in the October 2005 municipal election takes its place against a backdrop of other federal, state, and local laws which regulate the conduct of elections and the powers of home-rule municipalities. It is important to first review the history of these pre-existing laws and explain how they relate to one another in order to understand the significance of Albuquerque’s recent City Charter amendment. Because several of these pre-existing laws would apply in the absence of the October 2005 amendment, they establish a baseline of voting procedures to which the new law can be compared. The source of the elective franchise in the State of New Mexico is found in Article VII, Section 1 of the New Mexico Constitution, which provides that: Every citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election, except idiots, insane persons and persons convicted of a felonious or infamous crime unless restored to political rights, shall be qualified to vote at all elections for public officers. The legislature may enact laws providing for absentee voting by qualified electors. All school elections shall be held at different times from other elections. The legislature shall have the power to require the registration of qualified electors as a requisite for voting, and shall regulate the manner, time, and places of voting. The legislature shall enact such laws as will secure the secrecy of the ballot, the purity of elections and guard against the abuse of elective franchise. Not more than two members of the board of registration, and not more than two judges of election shall belong to the same political party at the time of their appointment. N.M. Const, art. VII, § 1. Since this provision of the New Mexico Constitution was last amended in 1967, it has been superseded in some respects by the Twenty-Sixth Amendment to the United States Constitution, which sets the voting age at eighteen years, and by the 1970 amendments to the Voting Rights Act, which set a durational residency requirement of thirty days in elections for certain federal offices. See U.S. Const. amend XXVI; 42 U.S.C. §§ 1973aa to 1973bb-4. Thus, as modified by the Twenty-Sixth Amendment to the United States Constitution and the federal Voting Rights Act, the basic criteria for being eligible to vote under Article VII, Section 1 of the New Mexico Constitution are: (1) United States citizenship, (2) an age requirement of 18 years or older, and (3) a durational residency requirement of at least 30 days. See N.M. Const, art. VII, § 1; U.S. Const, amend. XXVI; 42 U.S.C. §§ 1973aa to 1973bb~4. Albuquerque’s October 2005 City Charter amendment is not the first law to face the problem of reconciling these eligibility requirements for voting with the eligibility requirements for obtaining the documents necessary to identify oneself as a voter. The New Mexico Legislature faced a similar problem when it amended the State Election Code in 2005. The 2005 amendments to the State Election Code respond to and implement the Help America Vote Act of 2002 (HAVA), which Congress passed in response to problems identified in the 2000 presidential election. Section 303 of HAVA provides, in relevant part, that states must create and maintain a “computerized statewide voter registration list defined, maintained, and administered at the State level that contains the name and registration information of every legally registered voter in the State and assigns a unique identifier to each legally registered voter in the State.” 42 U.S.C. § 15483(a)(1)(A). In addition, HAVA requires applicants for voter registration for an election for federal office to include certain identifying information, such as the last four digits of a social security number, for purposes of establishing a “unique identifier” for each voter. 42 U.S.C. §§ 15483(a)(5), 15483(b). Building upon the foundation required under HAVA, the 2005 amendments to New Mexico’s State Election Code establish the following voting procedure in statewide elections: A. When a voter presents himself at the polls to vote, he shall announce his name and address in an audible tone of voice. When an election judge finds the voter’s name in the signature roster, he shall in like manner repeat the name of the voter. The election judge shall then ask the voter to provide the required voter identification. The voter shall then sign his name or make his mark on the signature line in the copy of the signature roster to be returned to the county clerk. Upon the voter’s name or mark being written in the signature roster, a challenge may be interposed as provided in the Election Code. B. If a voter fails to provide the required voter identification, the voter shall be allowed to vote on a provisional ballot. N.M. Stat. Ann. 1-12-10 (Michie Supp. 2006). The State Election Code elsewhere defines “required voter identification” to include any of the following forms of identification as chosen by the voter: A. a physical form of identification, which may be: (1) an original or copy of a current and valid photo identification with or without an address, which address is not required to match the voter’s certificate of registration or a voter identification card; or (2) an original or copy of a utility bill, bank statement, government check, paycheck, student identification card or other government document, including identification issued by an Indian nation, tribe or pueblo, that shows the name and address of the person, the address of which is not required to match the voter’s certificate of registration; or B. a verbal or written statement by the voter of the voter’s name, year of birth and unique identifier; provided, however, that the statement of the voter’s name need not contain the voter’s middle initial or suffix. N.M. Stat. Ann. § 1-1-24. The “unique identifier” means “the last four digits of a voter’s social security number.” Id. § 1-1-28. Similar requirements for a physical form of identification or the use of birth dates and unique identifiers apply to voter registration and absentee voting under the State Election Code as amended in 2005. See id. § 1-4-5.1 (voter registration); id. §§ 1-6-4 to 1-6-9 (absentee voting). The 2005 amendments also include provisions for educating voters and election workers about the law’s requirements, see N.M. Stat. Ann. § § 1-2-4, 1-2-17, 1-11-12.1, 1-12-10.1, and protecting the privacy of personal information (such as social security numbers and dates of birth) that voters supply to election officials. See N.M. Stat. Ann. § § 1^-5(E), 1-5-21, 1-5-22, 1-5-24, 1-6-5.4. Responsibility for administering the State Election Code falls on the Secretary of State and the County Clerk for each county, who are elected officials in their own right. See N.M. Const, art. V, § 1 (providing for election of secretary of state); N.M. Stat. Ann. § 4-38-6(0 (Mi-chie 2002) (providing for election of county clerks). C. The Applicability of HAVA to Municipal Elections in New Mexico The requirements of HAVA and the 2005 amendments to the State Election Code do not necessarily apply to municipal elections in New Mexico. The New Mexico Legislature has enacted a separate Municipal Election Code for that purpose, which provides that: The Municipal Election Code shall govern the conduct of all aspects of all municipal elections except when the Municipal Election Code is silent or is in conflict with the state Election Code with respect to any procedures or protections required of the state by federal law, then the state Election Code shall govern, as appropriate. The provisions of the Municipal Election Code shall not apply to home rule municipalities or municipalities incorporated under special act unless the Municipal Election Code is adopted by reference by such municipality. N.M. Stat. Ann. § 3-8-l(E) (Michie 1999); see also N.M. Stat. Ann. § 1-1-19(B) (stating conditions under which State Election Code applies to municipal elections). The City of Albuquerque is a “home rule municipality” and, as such, may “exercise all legislative powers and perform all functions not expressly denied by general law or charter.” N.M. Const, art. X, § 6(D). See Cottrell v. Santillanes, 120 N.M. 367, 368, 901 P.2d 785, 786 (Ct.App.1995). Under the Municipal Charter Act, the charter of a home-rule municipality may provide for any system or form of government that may be deemed expedient and beneficial to the people of the municipality, including the manner of appointment or election of its officers, the recall of the officers and the petition and referendum of any ordinance, resolution or action of the municipality; provided, that the charter shall not be inconsistent with the [Constitution of New Mexico.... N.M. Stat. Ann. § 3-15-7 (Michie 1999); see Cottrell, 120 N.M. at 368, 901 P.2d at 786. Article II of the City of Albuquerque’s municipal charter provides for the election of the City’s Mayor and City Councilors; however, the City Clerk and City Attorney are appointees of the Mayor rather than elected officials in their own right. Under the City’s Merit System Ordinance, the City Clerk, City Attorney, and all Assistant City Attorneys are “unclassified employees” who may be dismissed “for any or no reason.” Albuquerque, N.M., Code of Ordinances § 3-l-6(C), (D) (2006), available at http://www.amlegal.com/library/nm/ albuquerque.shtml. Albuquerque’s City Charter defines the terms “elector” or “voter” as: [a] person who is a resident of the city and who is entitled to vote for candidates for municipal office in a municipal election under the Constitution and statutes of New Mexico as amended and supplemented from time to time and who is registered pursuant to the applicable statutes of New Mexico as amended and supplemented from time to time or who is registered pursuant to any ordinance of the Council which expressly provides that it is to take precedence over such statutes and which is enacted after the effective date of this Section. Albuquerque, N.M., City Charter, art. II, § 5. According to the schedule set forth in the City Charter, Albuquerque’s next regular municipal election will occur on Tuesday, October 2, 2007. See id., art. II, § 1. Albuquerque’s City Charter also selectively incorporates the Municipal Election Code as well as city ordinances governing municipal elections, as follows: (a) The Municipal Election Code, Chapter 3, Articles 8 and 9, NMSA 1978, as amended and as supplemented from time to time, shall govern the conduct of all aspects of municipal elections, except where inconsistent with the terms of this Charter, in which event this Charter shall control. (b) Any ordinance adopted subsequent to the effective date of this Section by a majority of the entire membership of the Council plus two additional members thereof voting in favor of such ordinance, and said ordinance being otherwise governed by Article XI of this Charter, which ordinance expressly provides that it is to take precedence over the Municipal Election Code, shall take precedence over such Code except where such ordinance is inconsistent with the terms of this Charter, in which event this Charter shall control. Id., art. II, § 2. The City of Albuquerque’s Municipal Election Ordinance similarly provides that: The purpose of this chapter is to prescribe certain rules of procedure concerning municipal elections by implementing the Constitution of the State of New Mexico and the Charter of the City of Albuquerque [i.e., Article XIII of the Charter] and- by supplementing and modifying the statutes of the state and their application to the city. In the event any of the provisions of this chapter conflict with the Constitution of the state or the Charter of the city, the Constitution and Charter shall prevail, and if any provision of this chapter conflicts with any otherwise applicable provision of the general statutes of the state, the provisions of this chapter shall prevail. Albuquerque, N.M., Code of Ordinances § 2-4-2. Under the Municipal Election Ordinance, “[t]he City Clerk shall administer all municipal elections. The City Clerk may delegate to Deputy City Clerks and Assistant City Clerks any of the duties of the City Clerk in the administration of municipal elections.” Id. § 2-4-4. With certain exceptions not directly at issue here, the Municipal Election Ordinance provides that absentee voting in the City of Albuquerque’s municipal elections shall be conducted in accordance with the Municipal Election Code. See id. § 2-4-18. Under the Municipal Election Code, absentee voting is available to “any voter ... entitled to vote in the municipal election,” N.M. Stat. Ann. § 3-9-3 (Michie 1999), so long as he or she complies with the application and voting procedures for absentee ballots. D. The Procedure for Voting Under the Municipal Election Code The Municipal Election Code was last amended in 2003 and does not expressly incorporate the identification requirements of HAVA or the 2005 amendments to the State Election Code cited above. In particular, the Municipal Election Code does not require absentee voters to produce a photo ID at the time they apply for or cast an absentee ballot. See N.M. Stat. Ann. § 3-9-4, 3-9-7 (Supp.2006). An absentee voter proceeding under the Municipal Election Code need not personally appear before an election official at any time. In lieu of appearing in person, the Municipal Election Code allows a voter to request an absentee ballot by telephone, by mail, or through an immediate family member such as a spouse, child, parent, brother, or sister. See id. § 3-9-4(D). Completed absentee ballots may be mailed to the municipal clerk in lieu of delivering them in person. See id. § 3-9-7(B). The Municipal Election Code also sets forth a procedure for voting in person at one’s regular precinct polling place on election day, which does not expressly include the identification requirements of HAVA or the 2005 amendments to the State Election Code: A. When a person presents himself at the polls to vote, he shall announce his name and address in an audible tone of voice and locate his name and number in the registered voter list posted for such purpose. An election clerk shall locate the person’s name and number in the signature roster. The person shall then sign his name in the signature roster, or if he is unable to write, the election clerk shall sign his name in the signature roster which shall be initialed by an election judge in the signature roster. Thereupon, a challenge may be interposed as provided in the Municipal Election Code. B. If no challenge is interposed, an election clerk shall issue a voting machine permit to the person upon which shall be written his voter registration list number. The person shall present the voting machine permit to the precinct board member activating the machine and the person shall be allowed to vote. The precinct board member shall enter the public counter number onto the voting machine permit as shown on the voting machine after the person has voted. All voting machine permits shall be retained in consecutive order and made part of the election returns. N.M. Stat. Ann. § 3-8-41 (Michie 1999). The October 2005 amendment to the Albuquerque City Charter modifies this procedure for voting in person at one’s regular precinct polling place on election day, because the October 2005 amendment takes precedence over conflicting provisions of the Municipal Election Code pursuant to the choice-of-law provisions in N.M. Stat. Ann. § 3-8-l(E), and Article II, Section 2 of the City Charter. There is no corresponding modification to the procedure for absentee voting, which is still governed by reference to the Municipal Election Code under these choice-of-law provisions. E. The October 2005 Amendment to Albuquerque’s City Charter The October 2005 amendment has been codified as Article XIII, Section 14 of Albuquerque’s City Charter, which reads as follows: When a voter approaches the election polling place seeking to vote, the voter must identify himself or herself audibly by name. The Municipal Election Clerk shall locate in the election rolls the name spoken and ask the individual seeking to vote for one current valid identification card containing the voter’s name and photograph. Such photo identification card may include any card issued by a government agency, driver’s license, student identification card, commercial transaction card such as a credit or debit card, insurance card, union card, a professional association card or the voter identification card issued by the City Clerk. If the individual is unable to provide a photo identification card, he or she shall be allowed to vote on a provisional ballot, but only if he or she swears or affirms under penalty of perjury in an affidavit provided by the City Clerk that he or she is the registered voter listed on the voter registration rolls at the precinct at which he or she presented himself or herself to vote and provides his or her date of birth and the last four digits of his or her social security number. Provisional ballots shall be issued for no other reason than the failure to present photo identification. Provisional ballots shall be counted only by the Municipal Canvassing Board and only upon the voter’s presentation to the City Clerk within the ten day canvassing period one of the photo identification cards described in this section. The Municipal Canvassing Board shall also verify that the voter who cast the provisional ballot was registered to vote for the election and did not vote elsewhere in the same election. If a voter who cast a provisional ballot under this section swears or affirms under penalty of perjury in an affidavit provided by the City Clerk within the ten day canvassing period that he or she has a religious objection to being photographed, such voter shall not be required to submit photo identification. The Municipal Canvassing Board shall otherwise verify that the provisional ballot was valid. The City Clerk shall develop and provide instructions for elections judges concerning the requirements of this Section and a method of complaint and resolution for individuals who feel they have been discriminated against by election officials or the City Clerk’s administration of this Section, in accordance with federal intimidation guidelines. Knowingly executing a false statement constitutes perjury as provided in Section 30-25-1 NMSA 1978 and voting on the basis of a falsely executed statement constitutes false voting as provided in Section 1-20-8 NMSA 1978. Voter photo identification cards shall be issued by the City Clerk without charge to any voter who presents any two of the following identification documents that show the name and address of the voter: a state issued identification card, social security card, student identification card, library card, insurance card, selective service card, union card, professional association card, utility bill, bank statement, government check or a paycheck. If the individual is unable to present any two of these documents to the City Clerk, then the voter shall swear or affirm in writing under penalty of perjury that he or she is the registered voter and shall be issued a voter photo identification card upon confirmation with the County Clerk that such person is presently registered to vote. The City Clerk issued voter photo identification card shall state on its face that it shall not be valid for identification other than for the purpose of voting in City Elections and shall not be valid if the voter is subsequently purged from the voter rolls. The Municipal Canvassing Board shall certify the results of the Municipal Election by the end of the tenth day after the day on which the election is held. Pursuant to Article II, Section 2(b) of the City Charter, this Section shall take precedence over the State Municipal Election Code. The provisions of this Section shall apply only to City of Albuquerque Municipal Elections. Albuquerque, N.M., City Charter, art. XIII, § 14 (as amended Oct. 4, 2005). Before this amendment appeared on the ballot for Albuquerque’s municipal election of October 4, 2005, it was proposed by the City Council pursuant to Article VI, Section 1 of the City Charter. The only legislative history concerning this proposal that appears in the record is the City Council’s written resolution to submit this amendment to the voters, which was approved by a vote of five councilors in favor and two opposed at the City Council meeting of June 20, 2005, and then signed by Mayor Martin Chavez on June 23, 2005. The City Council’s proposal contains the following preliminary remarks and findings: WHEREAS, the integrity of the voting process is essential for the public to have confidence in the election process; and WHEREAS, present law has no general requirement for presenting a photo identification when voting so as to prevent voting fraud; and WHEREAS, Louisiana, South Carolina, South Dakota, Florida, Indiana and Hawaii currently require voters to provide photo identification before he or she may vote; and WHEREAS, the use of photo identification will help to eliminate the fraudulent voter registration that exists in Albuquerque and prevent vote from becoming fraudulent as shown by these 2004 examples: 1. A community organization admitted that one of its employees submitted falsified voter registrations forms for a 13-year-old boy and a 15-year-old neighbor; 2. A voter registration card arrived in the name of a resident’s father who had been dead for two and one-half years; 3. The Albuquerque Police Department’s Gang Unit, while executing a search warrant, found voter registration forms. The occupant admitted to being paid to have people fill out these forms; 4. Voter registration cards were turned in to the County Clerk containing faulty or no addresses, no social security numbers and bogus signatures. The Bernalillo County Clerk estimated that the County had 3,000 voter registration cards with problems that may have rendered them invalid; and WHEREAS, requiring all voters to show photo identification eliminates the possibility of having a person’s vote stolen by an impostor, as was the case with at least one Albuquerque citizen in the 2004 election; and WHEREAS, voting is one of our most important rights and no one should lose that right through the fraudulent behavior of another. Albuquerque, N.M., Council Bill No. R-05-295 (2005). [Ex. A to Doc. 66.] Two of the incidents referenced in this City Council Resolution appear to correspond to allegations in the Motion to In tervene [Doc. 32] filed on June 13, 2006. In that motion, counsel identified Dwight Adkins as the person whose vote was stolen by someone who voted in his place in the 2004 election. Counsel also identified Glen Stout as the parent of the thirteen year-old who was fraudulently registered by a voter-registration entity during the 2004 election campaign. F. The Tendered Evidence Relating to Voter Fraud and Enforcement Apart from the text of the City Council Resolution itself and the representations of counsel in the Motion to Intervene, the parties have presented no evidence of voter fraud or voting irregularities among Albuquerque voters who vote in person at their precinct polling place on election day. The parties’ primary witnesses on this subject are the current City Clerk, Defendant Millie Santillanes, and a former State Election Director in the Secretary of State’s office, Denise Lamb. Under Section 2-4-4 of the City’s Municipal Election Ordinance, Defendant San-tillanes is the City Clerk charged with administering all municipal elections. She was appointed to that position by Mayor Chavez in December 2005 and also served in the same position eight or more years ago during Mayor Chavez’s first term of office. [Santillanes Dep. at 3, Ex. G to Doc. 66.] In her deposition testimony, Defendant Santillanes could identify no instances of complaints, charges, or prosecutions regarding individuals who have impersonated someone else when voting at the polls, except for the one incident listed in the 2005 Council Resolution, which did not occur during a municipal election. [Santil-lanes Dep. at 7-9.] In response to Plaintiffs’ discovery requests, Defendant also produced no documents of such complaints, charges, or prosecutions regarding voter impersonation. [Ex. I to Doc. 66.] While Defendant Santillanes’s deposition testimony indicates that she is “in charge of municipal elections” and that she “con-duetts] them with help of the legal department, with the help of staff,” she also testified that she does not “register voters” because that task is “done through the county clerk.” [Santillanes Dep. at 5-6.] From this evidence, it is apparent that the October 2005 amendment has no discernible relationship to correcting problems with voter registration (such as invalid registration cards, the appearance of voter-registration forms in suspicious locations, or the registration of children or deceased persons as voters) because the City Clerk is not charged with overseeing voter registration. Defendant also submitted the affidavit of Kelly A. Fulgenzi, an Assistant City Clerk, concerning a runoff election held in City Council District 9 on November 21, 2005, which attracted the participation of only 3,687 out of 28,925 eligible voters. That runoff election was conducted shortly after voters approved the October 2005 amendment to the City Charter adding the photo ID requirement. [Fulganzi Aff. ¶ 8, Ex. B to Doc. 64.] The parties point to no evidence of voter fraud and no evidence that provisional ballots were used due to a voter’s lack of an acceptable photo ID during that election. Of the votes cast, twenty percent were cast by absentee ballot even though the runoff election was announced less than two months before the election date of November 21, 2005. [Ex. L to Doc. 74; Fulganzi Aff. ¶ 9.] The evidence submitted with the parties’ briefing on their cross-motions for summary judgment also does not contain any expert testimony on the subject of voter fraud. Defendant filed an expert report of Dr. Jonathan Katz on July 21, 2006, but the parties did not include any of his testimony with their briefing on the cross-motions for summary judgment. [Doc. 45.] Plaintiffs produced an expert report by Denise Lamb, but later withdrew all their proposed expert-witness testimony in response to -a motion to exclude such testimony filed by Defendant. [Doc. 43, 44, 48, 51.] Nevertheless, both parties have cited testimony from Ms. Lamb in her capacity as a fact witness concerning the prevalence of voter-fraud complaints during her tenure as New Mexico’s State Election Director in the Secretary of State’s office from November 1994 to September 1997 and again from January 1999 to January 2005. Ms. Lamb states in her affidavit that she never received a single affidavit or complaint of anyone impersonating a voter at the polls in any of the elections she supervised throughout the state, including Bernalillo County, during her entire tenure in that position. She further states that she is unaware of any instance of voter impersonation, or any instance where there was a law-enforcement investigation or prosecution of an alleged impersonation of a voter, during her tenure as an election supervisor. [Lamb Aff. ¶¶ 1^4, Ex. J to Doc. 66.] In her deposition testimony, Ms. Lamb explained that her duties as State Election Director encompassed administration of the Municipal Election Code, which she interpreted as directing the Secretary of State to investigate complaints regarding municipal elections and forwarding them to the applicable law-enforcement authorities. These duties included handling calls from city clerks about complaints during an election. At her deposition, Ms. Lamb again confirmed that she has no personal knowledge of anybody ever being accused of impersonating someone else at the polls. [Lamb Dep. at 9, 67, 72; Ex. N to Doc. 75.] Ms. Lamb tells a different story with respect to absentee voting. Ms. Lamb’s affidavit states that she “received reports or complaints of irregularities in absentee voting every election, without fail.” [Lamb Aff. ¶ 5, Ex. J to Doc. 66.] In the portions of her deposition testimony attached to Defendant’s Memorandum in Support of Motion for Summary Judgment [Ex. K to Doc. 64], Ms. Lamb cites several examples of schemes or ploys that reportedly were used to defraud or disenfranchise voters using absentee-voting procedures. [Lamb Dep. at 84-96, 103-08.] Defendant Santillanes also admitted in her deposition testimony that it is possible to steal someone’s vote by means of absentee voting. She agreed with counsel that it would be possible, for example, for a husband to obtain an absentee ballot in his wife’s name and then send it in to cast the vote for her. [Santillanes Dep. at 11-14.] The parties have not presented evidence of any specific efforts, besides the enactment of the October 2005 amendment to the City Charter, that Defendant or other city officials have undertaken to prevent voter fraud or to educate voters about the new requirements imposed by this amendment since the date of its enactment. Defendant Santillanes was questioned about such topics at her deposition on May 4, 2006. As of the date of her deposition, Defendant Santillanes had not yet drafted any instructions to election officials with regard to training them in administering and enforcing the new requirements of the October 2005 amendment to the City Charter. [Santillanes Dep. at 17-20.] Her testimony of record also is silent with respect to whether her office has established any procedure for issuing the photo ID cards specified in the October 2005 amendment, or educating voters on how to obtain them. The affidavit of her assistant, Ms. Fulgenzi, indicates that such a photo ID card can be obtained from the City Clerk before, during, and after an election day, but provides no details that go beyond the text of the City Charter amendment itself. [Fulganzi Aff. ¶¶ 10-13. ] There is no evidence of record that anyone has actually obtained a photo ID card from the City Clerk. Unlike the 2005 amendments to the State Election Code, see N.M. Stat. Ann. § 1-11-12.1, the October 2005 amendment to the City Charter does not place an affirmative obligation on government officials to provide every registered voter with an ID card that can be used for identification purposes on election day. Rather, the October 2005 amendment leaves it up to each Albuquerque voter to learn about and properly invoke the procedure for obtaining a city-issued identification card from the City Clerk if they so desire. At her deposition, Defendant Santillanes offered her interpretation of the requirement that photo ID cards presented by voters must be “current” and “valid.” As an example of a card that she would not consider current or valid, Defendant San-tillanes cited “a driver’s license that is 20 years old ... particularly if you can’t tell by the picture.” Defendant Santillanes also would reject a photo ID card if the photo appearing on the card “was so dramatically different from the person bringing in the card.” [Santillanes Dep. at 22-26.] If, on the other hand, a person brought in a driver’s license that had expired only a week earlier, Defendant Santillanes predicted that it “could” be rejected, but she did not “think it would be.” She also testified that she did not think it would matter if the driver’s license were from another state or had a different address than the one shown in the City Clerk’s records. [Santillanes Dep. at 22-23, 35-36.] Ultimately, however, and of significance to this Court, Defendant Santillanes stated that she could not give a definition of which photo ID cards were “valid,” because she would leave it up to each election judge to “make the call.” [Santillanes Dep. at 23-24, 37-38.] According to Defendant Santillanes, the election judge makes the judgment as to whether or not the photographic image on the ID card sufficiently matches the physical appearance of the voter who presents it. [Santil-lanes Dep. at 31-32.] Defendant also offers the affidavit of Ms. Fulgenzi on this subject. Ms. Fulgen-zi’s affidavit is not consistent with Defendant Santillanes’s deposition testimony in some respects. While Ms. Fulgenzi states in her affidavit that she “presently administer[s] City of Albuquerque elections” [Fulganzi Aff. ¶ 1], the deposition testimony indicates that Defendant Santillanes is “in charge of municipal elections,” has “overall responsibility for all municipal elections,” and “do[es] it all.” [Santillanes Dep. at 6,16.] Ms. Fulgenzi’s affidavit also states that “[t]he City Clerk’s training of election poll workers includes that expiration dates are not required to be on photo identification cards, but if a photo identification card has an expiration date, such card will not be accepted on a date after the expiration date.” According to Ms. Fulgenzi’s affidavit, “[t]he City Clerk’s training of election poll workers” also includes an instruction that “photo identification cards that are forgeries may not be accepted for meeting the photo identification requirements of the Voter ID law.” As examples of “[acceptable photo identification cards,” Ms. Fulgenzi’s affidavit cites “commercial transaction cards, such as Costco or Sam’s Club membership cards.” [Fulganzi Aff. ¶¶ 18,19, 25.] II. ANALYSIS A. Plaintiffs’Standing Before turning to the merits of Plaintiffs’ claims that the October 2005 amendment to the City Charter is unconstitutional, the Court must first determine whether it has jurisdiction to adjudicate these claims. Defendants assert that this Court lacks jurisdiction because Plaintiffs do not have standing to sue. “The question of standing ‘involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.’ ” Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). The constitutional requirements for standing are derived from the wording of Article III of the United States Constitution, which limits the role of the federal Judiciary to the adjudication of actual cases or controversies. See Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1087 (10th Cir.2006) (en banc). At this stage of the litigation, Plaintiffs can no longer rely solely on the allegations in their Complaint in order to establish standing. They must instead come forward with admissible evidence to support each element required to establish an actual case or controversy under Article III. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Supreme Court has set forth three elements that Plaintiffs must satisfy to meet the constitutional requirements for standing. See McConnell v. Fed. Election Comm’n, 540 U.S. 93, 225, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003). First, Plaintiffs must demonstrate an “injury in fact,” which is “concrete,” “distinct and palpable,” and “actual or imminent.” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (citation and internal quotation marks omitted). Second, Plaintiffs must establish “a causal connection between the injury and the conduct complained of-the injury has to be ‘fairly tracefable] to the challenged action of the defendant, and not ... th[e] result [of] some third party not before the court.’ ” Lujan, 504 U.S. at 560-561, 112 S.Ct. 2130 (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). Third, Plaintiffs must show a “ ‘substantial likelihood’ that the requested relief will remedy the alleged injury in fact.” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (quoting Simon, 426 U.S. at 45, 96 S.Ct. 1917). Additional requirements must be satisfied when an organization seeks to assert claims on behalf of its members. “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Defendant does not contend that the purposes of the organizational Plaintiffs lack relevance to the interests at stake here or that this case requires the participation of individual members (in addition to the three individual Plaintiffs who are already named in the lawsuit). Thus, the organizational Plaintiffs’ standing to sue on their members’ behalf depends on their members’ standing to sue in then-own right. Defendant contends that both the individual Plaintiffs and the organizational Plaintiffs’ members lack standing to sue in their own right because they have not shown an “injury in fact,” which the Supreme Court has defined as “ ‘an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.’” Walker, 450 F.3d at 1087 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). Defendant asserts that this element of standing is lacking here because none of the Plaintiffs have conclusively shown that they or any of their members currently lack and are unable to obtain one of the forms of photo ID listed in the October 2005 amendment to the City Charter as of the date of the next municipal election. Defendant furthers assert that Plaintiffs lack a legally protected interest in voting in person at their precinct polling place on future municipal election days because the Constitution does not guarantee them a right to vote in a specific manner (such as casting a ballot in person on election day in lieu of mailing an absentee ballot). Thus, according to Defendant, the fact that Plaintiffs or their members might be personally offended by the prospect of showing a photo ID when they vote or being treated differently than absentee voters does not amount to an invasion of a legally protected interest. To support these arguments, Defendant relies on the recent district court opinion in Indiana Democratic Party v. Rokita, 458 F.Supp.2d 775 (S.D.Ind. Apr.14, 2006), aff'd sub nom. Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir.2007). Rokita and other authorities support the proposition that Plaintiffs cannot show a “legally protected interest” simply by asserting that their personal feelings or beliefs are upset by the prospect of showing a photo ID when voting in person at their precinct polling place on municipal election days. “[T]he psychological consequence presumably produced by observation of conduct with which one disagrees ... is not an injury sufficient to confer standing under Art. Ill, even though the disagreement is phrased in constitutional terms.” Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 485-86, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); accord Schaffer v. Clinton, 240 F.3d 878, 884 (10th Cir.2001). This Court agrees that Plaintiffs may not rely on such psychological injuries to establish their standing to sue. It is also true that the Constitution does not expressly guarantee Plaintiffs the right to vote in person at a polling place on election day, as opposed to some other method of voting such as the mailing of an absentee ballot, or vice versa. See McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 808, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir.2004). Indeed, there is no constitutional guarantee that a home-rule municipality such as the City of Albuquerque must choose a form of local government that allows its citizens to elect its municipal officials in the first place. See N.M. Stat. Ann. § 3-15-7; Cottrell v. Santillanes, 120 N.M. 367, 368, 901 P.2d 785, 786 (Ct.App.1995); cf. Bush v. Gore, 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (per curiam) (“The individual citizen has no federal constitutional right to vote for electors ... unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.”). This absence of constitutional guarantees does not end the Court’s standing inquiry, however, because the Constitution’s Bill of Rights is not the only source of legally protected interests that Plaintiffs may rely upon to establish their standing to sue. It is on this point that Defendant’s arguments about standing, and the district court’s analysis in Rokita, go astray from the applicable Supreme Court and Tenth Circuit precedents. For purposes of the standing inquiry, “the question is not whether the alleged injury rises to the level of a constitutional violation.” Walker, 450 F.3d at 1088. The mere existence of a constitutional violation does not give everyone the right to file a lawsuit to redress it; only those who can show that they have been or are about to be injured by the violation have standing to sue. And because the resulting injury can be distinct from the constitutional violation itself, a constitutional violation may cause injury to a legally protected interest that is not itself guaranteed by the Constitution, as when the government denies a class of persons a contractual or statutory benefit to which they could otherwise be entitled but for the government’s violation of their constitutional right to equal protection. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211-12, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Thus, the ultimate question of whether the October 2005 City Charter amendment is unconstitutional is distinct from the antecedent issue of whether Plaintiffs can show an injury-in-fact that gives them standing to sue. See Schaffer, 240 F.3d at 883. The question of standing “goes to the Article III jurisdiction of this Court ..., not to the merits of the case.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). In this case, Plaintiffs need not claim or rely upon a constitutional right to vote in person at a polling place on future municipal election days in order to establish their standing to sue, because there are already state statutes and municipal charter provisions which grant them that option. These election laws give Albuquerque residents (including Plaintiffs and the members of Plaintiffs’ organizations) the options of either voting by absentee ballot or voting in person at a polling place on designated municipal election days. Plaintiffs are simply asserting a right to exercise the latter option in a manner consistent with the constitutional guarantees of equal protection and freedom of expression. For purposes of Plaintiffs’ standing to assert their equal-protection claims, the “injury-in-faet” is not only the threatened loss of this statutory option to vote in person at the polling place on election day, but also the extent to which they are being treated on less favorable terms than other similarly situated voters. When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993); accord Adarand Constructors, Inc., 515 U.S. at 211-12, 115 S.Ct. 2097; Gratz v. Bollinger, 539 U.S. 244, 261-62, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003). When, as here, a statute or municipal charter has given registered voters the option of casting their ballots in person at a polling place on election day, those citizens may justifiably rely on the availability of that option without facing the prospect of unconstitutional discrimination or disenfranchisement when they do so. “[0]nee the franchise is granted • to the electorate, lines may not be drawn that are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Harper v. Va. State Bd. of Elec., 383 U.S. 663, 665, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); accord Bush v. Gore, 531 U.S. at 105, 121 S.Ct. 525; McDonald, 394 U.S. at 807, 89 S.Ct. 1404. Thus, in this context, the law does not necessarily require Plaintiffs to wait until the next municipal election day to find out whether they are actually denied the right to vote or treated less favorably than similarly situated voters because of perceived inadequacies in their ID cards. Rather, the “injury in fact” required to establish standing to seek prospective relief may include a “ ‘credible threat’ ” to Plaintiffs’ or their members’ right to vote or receive equal treatment in a future election that “ ‘arise[s] from an objectively justified fear of real consequences.’ ” Walker, 450 F.3d at 1088 (quoting D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir.2004)). A “plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement. But [one] does not have to await the consummation of the threatened injury to obtain preventive relief.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 299, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (citations and internal quotation marks omitted); accord Walker, 450 F.3d at 1088. Our Supreme Court has recognized important prudential and equitable reasons why “the injury in fact” requirement extends to such threatened injuries when raised in a prospective challenge to election procedures: “Challengers to election procedures often have been left without a remedy in regard to the most immediate election because the election is too far underway or actually consummated prior to judgment.” Babbitt, 442 U.S. at 301 n. 12, 99 S.Ct. 2301; see, e.g., Bush v. Gore, 531 U.S. at 110, 121 S.Ct. 525. “Jus-ticiability in such cases depends not so much on the fact of past injury but on the prospect of its occurrence in an impending or future election.” Babbitt, 442 U.S. at 301 n. 12, 99 S.Ct. 2301. And when judicial review is undertaken before an election, our Supreme Court has recognized the need for “clear guidance” so as to avoid “voter confusion and consequent incentive to remain away from the polls.” Purcell v. Gonzalez, — U.S. -, -, 127 S.Ct. 5, 7, 166 L.Ed.2d 1 (2006). In this case, Plaintiffs have presented affidavits stating that they and their members have voted in the past and have specific plans to vote in person at their precinct polling places on future municipal election days in the City of Albuquerque. For purposes of establishing their standing to sue, Plaintiffs also have presented evidence showing that they have concrete and specific reasons for availing themselves of the option of voting in this manner, e.g., their interest in obtaining additional information about the candidates which does not become available until just before election day, their interest in publicizing or displaying their exercise of their right to vote to other members of their communities, and their interest in avoiding the risk that an absentee ballot will not be received or counted. By operation of law, municipal election days in the City of Albuquerque are scheduled to occur at regular four-year intervals beginning in October 2007, and Defendant has expressed an intention to enforce the October 2005 City Charter amendment at such future elections. Thus, there is no question that unless the City is enjoined from enforcing the October 2005 City Charter amendment, Plaintiffs will be confronted with the requirements of this new law when they next vote at a municipal election in Albuquerque. For purposes of establishing their standing to sue, Plaintiffs also have identified distinct, palpable reasons why they believe their existing identification documents may not be available or acceptable as “current” and “valid” photo ID cards under the October 2005 City Charter amendment, or why this amendment may cause them to be treated less favorably than other similarly situated voters. In the case of Plaintiff Razaras and some of the SAGE Council’s membership, the addresses on their ID cards do not match the addresses on their voter-registration records. [Razaras Aff. ¶¶ 2-15, Ex. F to Doc. 66; Razaras Dep. at 14-16, Ex. G to Doc. 64; Albert Aff. ¶¶2-8, Ex. C to Doc. 66; Albert Dep. at 18-20, 38-39, Ex. E to Doc. 64.] In the case of Plaintiffs Rass and Grothus, the photographs on their drivers’ licenses no longer match their physical appearance. [Rass Aff. ¶¶ 2-9, Ex. D to Doc. 66; Grothus Aff. ¶¶ 1-4, Ex. E to Doc. 66; Rass Dep. at 4-6, Ex. H to Doc. 64; Grothus Dep. at 22, Ex. I to Doc. 64.] The Coalition’s homeless members lack any permanent physical address to list on their ID cards and also lack a secure place to store their ID cards and other belongings. These aspects of being homeless make the documents of homeless individuals more prone to being lost, stolen, or not accepted for identification purposes. And when homeless individuals’ identification documents are lost, they have difficulty obtaining new or different forms of identification in a timely manner. [Hughes Dep. at 3-4,14-18, 23-30, 32-34, 41-43, Ex. F to Doc. 64; Thomas Dep. at 6, 32, 38-41, 64-72, Ex. J to Doc. 64.] Plaintiffs also express concern that they cannot foresee and prepare in advance for the City’s new photo ID requirement because City officials have given conflicting interpretations as to which ID cards will be considered “current” and “valid” under the new law. For example, future elections may occur after the expiration date listed on some of these Plaintiffs’ ID cards, or their ID cards may contain no expiration date. The evidence of record contains conflicting interpretations by City officials as to whether or under what circumstances the expiration date will be used to determine whether an ID card is “current” for voting purposes. Some election officials (such as Defendant Santillanes) may consider a photo ID to be current and valid even if it has an expiration date that predates the election day by a few days or weeks, while other election officials (such as Ms. Fulgenzi) may apply a bright-line rule that any expiration date appearing on a photo ID must not predate the election day in order to be considered current and valid for voting purposes. Defendant Santillanes stated in her deposition testimony that she will leave it to the discretion of each election judge to decide which photo IDs are “current” and “valid.” Thus, a particular Plaintiffs chances of being disenfranchised on the next election day may depend on which election judge was reviewing their documents at the time they appeared to vote at their polling place. That said, it is true that Plaintiffs have not identified a single voter who has been denied the right to vote based on the photo ID requirement in the October 2005 City Charter amendment or who, as a matter of law, currently lacks and cannot obtain any of the forms of photo ID listed in the new law by the date of the next municipal