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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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Equal Vote
Thursday, September 29
Young and Overton on Voter ID
Andrew Young has this letter to the editor in today's N.Y. Times, and Professor Spencer Overton has this op-ed published in Roll Call. Both address the voter ID issue. Professor Overton was a member of the Carter-Baker Commission, who dissented on the requirement that voters show "REAL ID" in order to vote. Mr. Young supported the voter ID requirement and apparently was instrumental behind the scenes in persuading some of the other commissioners to support this requirement. (On that point, see this post from Professor Overton.)

Mr. Young's letter to the editor is puzzling. He attempts to justify his support for the requirement that all voters show a state-issued "REAL ID" on the ground that "there is already a photo ID requirement in federal law: the new Real ID requirement imposed by Congress as part of homeland security policy." This is misleading. There is no federal law that requires that photo ID be presented in order to vote. HAVA requires only that first time voters who registered by mail present one of several documents, including but not limited to voter ID. The acceptable documents include things like utility bills that those who don't drive are likely to have. The "REAL ID" law passed by Congress requires that states verify certain information before driver's licenses are issued. It doesn't require that all voters be issued ID, and doesn't make state-issued photo ID more available. To the contrary, it makes it marginally more difficult to obtain.

Mr. Young suggests that state-issued photo ID should be made "widely available, easily accessible and free of cost." I agree that this is essential ... if photo ID is required. But this deftly avoids the primary question of whether photo ID should be required at all. Moreover, if states are responsible for providing the mandated photo ID, how are we going to ensure that states really do this in good faith. Can we really trust partisan Secretaries of State to go out of their way to register new voters? And even if we can, is it plausible to expect state legislative bodies to appropriate the monies needed to make this happen? Mr. Young's arguments are particularly ironic in light of the EAC's 2004 election day survey, which reveal large disparities in our election system based on race, language, and class. The proposal he endorses would make things worse rather than better, by imposing an additional barrier on those whose votes are already disproportionately diminished. One can only conclude that Mr. Young failed to do his homework before being coaxed into appearing before the Carter-Baker Commission to assure them that the "REAL ID" proposal really isn't the new poll tax.

In contrast to Mr. Young, Mr. Overton is in command of his facts and cogent in his arguments. He takes a much more realistic approach to the ID issue, one that takes account of both existing law and the evidence. Overton notes that the "REAL ID" proposal is " more exclusionary than any state ID law -- including Georgia's." Moreover, Young and the Carter-Baker Commission ignore the indirect costs of voter ID. As Overton points out: "A certified copy of a birth certificate costs from $10 to $45 depending on the state, a passport costs $85 and certified naturalization papers cost $19.95. About 12 percent of voting-age Americans currently lack a driver's license, and the hassle and cost of the supporting documents required under the Real ID law will only increase these numbers. "

Overton also points out that Michigan, which has a program to provide free ID to its citizens, still has about 10% of its population without photo ID. And this is completely aside from the fact that neither Young nor the Commission provide a shred of evidence that requiring photo ID is necessary to combat fraud.

Sadly, Mr. Young had acceded to the fraud-hyping of those who are bent on erecting new obstacles to political pariticipation. It is very fortunate that we have voices among us like Professor Overton's, who relies on evidence rather than hype, and who engages in rigorous analysis rather than leaping to endorse "common sense" solutions that really make no sense at all when one takes a careful look at the facts.

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Moritz College of Law The Ohio State University