Election Law @ Moritz


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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

ID and the Right to Vote

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April 12, 2005

The hottest topic in election administration over the past several weeks has been ID requirements for voters. Bills are moving through the legislatures in several states to require voters to present photo identification when they appear at the polls. Among those states whose legislatures have recently considered or enacted ID bills are Arizona , Georgia , Indiana , Ohio , and Wisconsin . Some Republicans in Congress are also pressing a bill that would impose a stricter identification requirement.

Federal law already contains an ID requirement. In particular, the Help America Vote Act ("HAVA") requires voters who registered by mail to present documentation of their identity and address the first time they appear at the polls. The law doesn't, however, apply to those who registered in person, at a county registrar's office or another public agency such as the registry of motor vehicles. In addition, HAVA doesn't require photo ID. Those who don't have a driver's license, for example, can show a utility bill or government document that includes their name and address.

Bills pending in some of the states would go significantly further. Those proposed ID requirements would extend to those who registered in person, and not just those who registered by mail. In addition, some proposals would require photographic proof of identification. Thus, voters who lack a driver's license would have to obtain some form of photo ID, or lose their right to vote.

The Debate

Generally speaking, the debate over voter ID has broken down along partisan lines. Republicans advocate strict ID requirements on the ground that they're necessary to curb fraud. Democrats, on the other hand, oppose them on the ground that they would disenfranchise voters, particularly those of lesser means.

One of the most striking features of the debate has been the factual vacuum in which it's being conducted. What's absent is any solid evidence of how many fraudulent votes would actually be stopped by an ID requirement. We don't know, for example, how many voters actually show up at the polls pretending to be someone they're not - much less of how many fraudulent votes would be prevented by imposition of an ID requirement.

What we do have are scattered anecdotes of people turning in phony registration forms. In one Ohio county, for example, registration forms bearing names such as Dick Tracy and Mary Poppins were reportedly submitted. There is also an allegation that a man in Defiance County , Ohio turned in phony registration forms in exchange for cocaine.

If true, those sorts of activities are already illegal and should be prosecuted under existing laws. And in fact, the man who allegedly turned in those invalid registration forms is being prosecuted.

More tenuous is the argument that such incidents justify a stricter ID requirement than the one we already have. There's no evidence that Mary Poppins actually tried to vote. If someone did try to vote under that name, it would undoubtedly arouse the suspicions of authorities - and could lead to criminal prosecution.

Myth vs. Reality

For the individual voter, voting fraud is a high risk/low reward strategy. A voter who pretends to be someone else risks prosecution if he or she is caught, and the state should aggressively prosecute those who engage in such fraud. On the other hand, the rewards for the individual who engages in fraud are meager. The anonymity of the ballot - the fact that outsiders can't confirm who someone voted for at the polls - makes it very difficult to mount any successful scheme of widespread fraud, without bearing an enormous risk.

It's therefore questionable at best whether an ID requirement is really necessary to combat voting fraud. Supporters of the ID requirement have yet to make a convincing case that existing methods of discouraging and punishing fraud are insufficient.

While the anti-fraud benefits of stricter ID laws are dubious, there is evidence that an ID requirement would impose a severe burden on many voters, particularly those of low income. As Spencer Overton of George Washington University Law School notes, one study showed that 6 to 10 percent of voters lack any form of state ID. Professor Overton also notes that blacks, Native Americans, and elderly voters are among those less likely to have photo ID.

Legal Implications

In their present form, the ID bills presently on the table are likely unconstitutional. The Supreme Court has long held that election practices discriminating against poor voters violate the principle of equal protection. In Harper v. State of Virginia , the Court struck down a $1.50 state poll tax for precisely this reason. "The principle that denies the State the right to dilute a citizen's vote on account of his economic status," the Harper Court held, "bars a system which excludes those unable to pay a fee to vote or who fail to pay." In the course of its opinion, the Court noted the possibility that the poll tax was being used to discriminate against black voters.

It might be argued that the "poll tax" problem could be avoided if the state were to offer an ID card free of charge. For example, for non-drivers, the state could make a photo identification card available at no cost.

The problem with this approach is that it still imposes a tax on the voter's time. Someone who lacks a driver's license would have to wait in line once to get a photo ID card - only to face the prospect of waiting in another line when Election Day arrives. It would thus increase the burden on those who wish to vote, at a time when our government should be doing everything in its power to lessen those burdens. And as we've seen in recent elections, even a few votes can sometimes make a big difference. Even if only a small percentage of eligible voters are discouraged by an ID requirement, that will still be enough to swing some elections.

Some Alternatives

If the goal is really to reduce voter fraud, there are more appropriate steps that we might take. One of them is to eliminate "no fault" absentee voting. When citizens cast their votes by mail, the privacy and anonymity of the ballot may be compromised. For example, someone can watch me cast my ballot, place it in an envelope, and then drop it in the mail. They can even pay me for casting my vote for a certain candidate.

Absentee voting may still be necessary for some citizens, particularly those who are severely disabled. But for other voters, we should consider moving to early voting rather than broader absentee voting. With early voting, the voter casts his or her vote before the election, but does so in a private voting booth rather than through the mail. That safeguards the privacy and anonymity of the ballot - and eliminates the possibility of vote buying - in a way that mail-in absentee voting does not.

Another proposal, made by Rick Hasen of Loyola Law School, would combine universal registration conducted by the federal government with a voter ID card. While there are some serious privacy concerns with a national ID, there's a tenable argument that it makes more sense for the federal government to provide such identification than for the states to do so. Combining universal registration with an ID requirement might also avoid the partisan polarization that characterizes the present and recent debates.

If some states insist upon imposing their own ID requirement, then those states - not the individual voters - should bear the burden. What states might do is to provide ID cards at the polling place. This would require that a camera and ID-maker be set up at each polling place. Those first-time voters who lack a photo ID would then have their picture taken and receive an ID card, free of charge, at the time they go to vote. While it's not clear that this would do much to eliminate fraud, it would at least place the burden where it belongs: on the government.

The downside of this approach is that it would require both financial and human resources to make it work. If not implemented properly, it could have the effect of making lines at the polling place longer. But if a state wishes to impose an as-yet unproven ID requirement on its citizens, the least it can do is bear the burden of providing that ID.