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

Administering the New Voter ID Rule Reasonably

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May 30, 2006

Voting in recent years has been awash in controversy and 2006 promises to be no different. Among the issues likely to arouse disputes is new legislation in such states as Georgia, Indiana and Ohio, requiring would-be voters to show a valid ID at the polling place as proof of their identity. Some versions of the new ID requirement are more stringent than others. Whereas Georgia and Indiana require a photo ID, Ohio's new law would permit non-photo utility bills and various other financial or government documents to suffice.

Advocates for lower-income groups have sharply criticized both forms of the new ID rule as unduly burdensome. Lower income voters if they are employed often have less time and energy for voting than the rest of the population, thanks to the physically demanding nature of many blue-collar and pink-collar jobs, and their often long hours. They are also usually not nearly as well educated and thus, compared to the general population, less able to manage paperwork effectively. Giving the poor and nearly poor one more thing to remember if they wish to cast a ballot on Election Day can pose a significant obstacle to voting by them, or so the argument goes. The same basic concern applies as well to elderly voters, who tend to be more forgetful and to have fewer kinds of IDs, especially if they no longer drive. Requiring a valid ID has also been criticized as potentially intimidating to people who are fearful of the police and tend to associate the demand for identification with an accusation of wrongdoing.

On the other side of this argument lies a legitimate concern with preventing fraud and error in the voting process. While that concern never goes away, it tends to rise in proportion to voter turnout. The greater the propensity of the population to vote, and in particular, the higher the turnout among people unaccustomed to voting regularly, the more worry there tends to be about fraud and error. The history of voting in the USA suggests that this concern is a valid one. Eras marked by high voter turnout, and in particular heavy participation in the electoral process by those in the bottom half of the income distribution, have been marked by more fraud and error than periods of lower turnout.

The most recent past era in which those problems worsened began in the mid-1930s, when the popularity of Franklin Roosevelt's New Deal policies among industrial workers sparked a very sharp jump in their voter turnout. Many of these newcomers to voting were the children of immigrants, and tended to lack any personal or family history of voting regularly in America. These kinds of blue-collar voters in places such as New York City and Chicago flocked to the polls during the Depression, and that pattern continued, with occasional dips, into the mid-1960s. Although a positive development in the sense that high voter participation rates are a sign of a healthy democracy, a more troubling aspect was an increase in voting fraud and error for which Chicago in particular became notorious.

Although one cannot be entirely sure, there are signs that the country has entered another, similar period of increased turnout among lower income voters, many of whom are either immigrants or their children, or people with deeper roots in the country who haven't voted much, if at all, before. Coping with this upsurge of voting among the less well educated and less experienced in a way that guards against fraud and error is a real challenge, which the new voter ID approach promises to help meet.

What is needed, however, is a sustained effort on the part of election officials, leaders of the two major parties, and the media to work together to administer voter ID rules reasonably. Election officials need to convey a clear message that asking for ID won't be used in improper ways, thereby reassuring those fearful that somehow this will lead, to give only two examples, to a demand on the spot that a would-be voter pay an outstanding library fine or traffic ticket before being allowed to cast a ballot. Some will say that this is a missed opportunity that could have been used to catch and penalize these kinds of wrongdoers, but if we view voting as something very basic to our republican form of government, the logic of taking such an approach appears compelling. Of course, some would-be voters may distrust these assurances of confidentiality, but such fears will likely decline over time, as word gets around that showing up to vote and presenting an ID doesn't create other kinds of problems.

Leaders of the two major political parties need to resist the urge to turn the voter ID rule into a partisan issue, with the Democrats (who tend to attract more of these kinds of voters) favoring great leniency in applying the rule and Republicans extreme strictness, rather than the more moderate approach that would best serve the public. This is not a hypothetical concern. When the Voting Rights Act of 1965 was passed, and millions of black and Hispanic voters flocked to the polls in the Sunbelt for the first time, that partisan pattern of administration was the norm in many places. In Phoenix, to give only one example, a team of highly partisan (Republican) attorneys that included the young William Rehnquist intensely challenged new, would-be voters at polling places during the 1966 elections. This conduct was so controversial that it became an issue when Rehnquist was nominated to serve on the U.S. Supreme Court. The key point here is that the ID rule must be administered by polling officials and party representatives in a way that is sensitive to the legitimate concerns of new voters. Some training sessions on this topic for all poll workers would be a very positive step.

As for the media, its biggest potential contribution would be to remind voters during the week before the election about the need to bring a valid ID, and to explain what forms of ID would be readily accepted. A public-service campaign of this sort would go a long way, one suspects, to reducing the number of would-be voters who are turned away because they simply forgot to bring a valid ID with them when they went to vote.

Experienced politicos may well see these suggestions as hopelessly impractical because there is so much resistance to the voter ID rule in major metropolitan areas. What the opponents there lack thus far is a sense of the inevitability of this change over the long term, but that should change soon. Surveys show that a large majority of the voting age population favors the voter ID safeguard and eventually that sentiment will likely prevail. Even in states like Wisconsin where gubernatorial vetoes have blocked such legislation, it can (and likely will) be approved via statewide ballot measure precisely because the majority in that state favors the change. The trend will likely become pronounced first in the nation's heartland, where moderate perspectives are always stronger than they are on the coasts, but the likelihood of an eventual national trend seems high. In fact, Congress is considering a nationwide photo ID rule for federal elections, proposed by Kentucky Senator Mitch McConnell. Given that situation, big city leaders ought to be working proactively to shape how such a rule would be administered, rather than simply trying to block it.

A similar sort of realism ought to persuade the most ardent supporters of voter ID to cooperate in the effort to develop reasonable rules for compliance, because the voter ID rule seems to have the greatest chance of long-term success if it is applied in a moderate but firm fashion. Excessive severity will likely undermine the kind of support for the rule that is needed over the long term in order to make enforcement effective at the local level, in big cities especially. The fairer enforcement of the rule appears to urban voters, the more likely they (and the voting officials there) are to comply with it.

Supporters of this new rule would do well to keep that in mind as we move nearer to voting this year.