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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Saturday, September 24
 
The Last Word (for Now) on Carter-Baker
Responding to the torrent of criticism that greeted the release of their report on Monday, Jimmy Carter and James Baker offered this op-ed in Friday's New York Times. Also worth a look is this comment on the Carter-Baker Commission's report from Doug Chapin of electionline.org, who served as the Commission's research director.

Carter and Baker characterize their report as one that seeks to "bridge[] the gap" between Democrats and Republicans, and accuse some critics of "misrepresent[ing]" the report's suggestions. They devote most of their attention to the proposal that has drawn the most criticism, namely to require all voters to show "REAL ID" cards in order to have their votes counted. They acknowledge that the recently enacted Georgia requirement, which requires all voters to show photo ID, is "discriminatory," but claim that their own proposal is not. Under their proposal, all voters would have to show "REAL ID" cards, driver's licenses or alternative ID for nondrivers, issued by the state. Those who don't drive would have to obtain an equivalent photo ID from the state.

As noted by dissenting commissioner Professor Spencer Overton, this proposal is in one sense more restrictive than that of any state, since "even a valid U.S. passport or a U.S. military photo ID card" would be insufficient. Still, Carter and Baker attempt to defend their proposal on the ground that they propose to provide ID's free of charge and to persuade states to "finally assume the responsibility to seek out citizens to both register voters and provide them with free ID's that meet federal standards."

Doug Chapin, who served as Research Director for the Carter-Baker Commission, has a interesting comment in this week's electionline.org newsletter. Chapin's take is that there are actually two different questions here: 1) whether ID should be required, and 2) if we think ID is necessary, what's the best way to do it. He understands most critics to be addressing the first question, but the Carter-Baker report to be addressing the second.

My take: I'd like to read the Carter-Baker report not as advocating adoption of a photo ID requirement, but only as suggesting how ID requirements should be implemented if one thinks it's a good idea. But I can't square this interpretation with the report's language such as: "[T]he Commission recommends that states require voters to use the REAL ID card, which was mandated in a law signed by the President in May 2005." It doesn't say, for example, "if policymakers think voter ID should be required, then ..." Still, I think that Chapin's distinction between the two questions is a useful one.

The first question is whether we need a voter ID requirement at all -- or, more properly, a more stringent requirement than the modest one imposed by HAVA. As many commentators, including me, have noted, the Carter-Baker report doesn't make the case that this is a good idea. They don't, for example, analyze how common it is for people to show up to vote pretending to be someone they're not or do even a cost-benefit analysis of how many people would be impeded from voting for every fraudulent vote prevented by a stricter ID requirement. Imposing a photo ID requirement of any kind would have especially serious consequences for elderly, disabled, minority, and poor people. These are discussed at some length in the rebuttal by Professor Overton and the Brennan Center. In contrast, the Carter-Baker report is conspicuously short on evidence to support the position that the costs of requiring photo ID outweigh its benefits.

If the answer to the first question is no, we of course never get to the second question. But let's suppose that the only question that Carter-Baker meant to address is the second one: assuming arguendo that we need a stricter ID requirement, is "REAL ID" the best way to get there? Even if this is the only question, the Carter-Baker proposal is deeply problematic. It would essentially vest responsibility in the states for issuing the requiring voter ID.

As Overton and the Brennan Center point out, even if ID is provided free, obtaining the documents needed to get ID will take time and money. Carter and Baker attempt to soften this by saying that states should make "affirmative efforts" to reach out to those who lack photo ID. It says that Michigan created mobile offices to provide a range of services, including photo ID. But there's no evidence cited -- none at all -- on whether Michigan's attempt to provide photo ID to its citizens has been successful. Here as in other parts of its report, the Commission fails to back up its policy recommendations with evidence.

Moreover, there's an obvious problem with entrusting the only acceptable form of voter ID to the states alone. The chief election officials of some states will perceive it as contrary to their party's interests to register voters. While the commission recommends that states move to nonpartisan election administration -- a good idea -- it's not realistic to suppose that this transition will be complete by 2010 (and it's an open question whether any state will have nonpartisan election adminstration by then).

In a state where a disproportionate number of voters lacking ID are African American, a strongly Democratic-leaning demographic group, can we really expect a Republican Secretary of State to go out of his or her way to register them? The question answers itself, and it's hard to see how the federal government could effectively police state's efforts. What's more likely is that the state's chief election official will pay lip service to the requirement of "affirmative efforts."

Even if the chief election official is nonpartisan, legislatures aren't. What's to stop an unfavorably disposed legislature from shortchanging efforts to register new voters? The bottom line, then, is that this proposal would provide another way for partisans to rig the process to their party's advantage -- and to the voters' disadvantage.

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Moritz College of Law The Ohio State University