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
Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Monday, May 22
McConnell's Voter ID Amendment
Senator Mitch McConnell (R-KY) has proposed an amendment (SA 4021) to the immigration bill, currently being considered by the U.S. Senate. McConnell's proposal would amend the Help America Vote Act of 2002 ("HAVA") to require that all voters show photo identification in order to vote. Specifically, anyone seeking to vote at the polls in any federal election would have to show a current and valid government-issued photo ID. Citizens lacking the requisite ID wouldn't even be allowed to cast a provisional ballot, as is the case under HAVA. No provision is made for any outreach to those lacking photo ID.
Ironically, the bill applies only to those who vote at the polling place, not to those casting mail-in absentee ballots would be exempt. That's ironic because it's with mail-in ballots, not in-person voting, that the greatest opportunity for and evidence of fraud exists. This is one of the big facts that the Georgia federal district court pointed out in enjoining that state's 2005 photo ID law in Common Cause/Georgia v. Billups on constitutional grounds.
While it's difficult to say with exactitude many citizens lack photo ID, the best estimate I've seen (from a paper written for the Carter-Ford Commission in 2001) is approximately 6-10%. That may not seem like a lot ... until one considers that it substantially exceeds the popular vote margin of victory in the last two presidential elections. Worse still, some demographic groups are less likely to have ID. A study of Wisconsin voters, the most thorough that I've seen from any state to date, found that only 22% of African American men aged 18-24 have photo ID. Voter ID laws thus don't burden all voters equally, since some are less likely to have it. And how many voters lacking government-issued photo ID will actually go to the time, trouble, and expense of getting photo ID in order to vote? Some will, to be sure, but a lot won't.
This, one suspects, is precisely the reason why this amendment is being proposed. The word "disenfranchisement" may be overused, but it accurately describes both the apparent intent and the predictable effect of Senator McConnell's proposal. Imposing barriers the act of voting, absent any evidence that they serve a useful purpose, is the very essence of disenfranchisement. This is a deliberately polarizing amendment, which it's difficult to imagine any Democrats or conscientious Republicans in the Senate signing on to. It would impose barriers to those citizens who lack ID, a disproportionate number of them elderly, disabled, minority, and poor voters. And it won't make a dent in those aspects of the system where there really is a serious threat of fraud.