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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
Wednesday, October 19
More on Georgia ID Decision
I've had a chance to read through U.S. District Judge Harold Murphy's 123-page order, which blocks the State of Georgia's recently enacted photo ID law (HB 244). That law required voters appearing at the polls to show government-issued photo ID, but allowed mail-in absentee voting without any such requirement. Georgia's one of only two states to require photo ID in order to vote. (The other is Indiana, whose recently enacted photo ID law is also being challenged.) Here are some of the highlights from Judge Murphy's opinion:

- The order relies heavily on the lack of evidence that voter fraud at the polling place is common. In fact, the evidence includes a statement from the state's chief election official, Secretary of State Cathy Cox, that she "cannot recall one documented case of voter fraud ... that specifically related to the impersonation of a registered voter at the polls." In other words, the only problem that the Georgia law purports to deal with is a non-problem. This supports the conclusion that the voter fraud arguments we've heard so much about are a pretext for disenfranchisement.

- Judge Murphy also notes that, at the time of enacting its new photo ID requirement, the state also raised the minimum fee for a five-year photo ID card from $10 to $20. That may not be much for most people, but is a lot for those on fixed or otherwise limited incomes. While the state says it will provide free ID cards to those who declare that they are "indigent," one can easily imagine that some would feel it embarrassing or insulting to their dignity to make such a declaration. Others don't believe themselves "indigent," while still needing to spend that $20 elsewhere -- say to pay for groceries for their children or pay the rent. In fact, the opinion notes that plaintiffs filed in evidence numerous declarations from such people.

- The opinion notes that there is some evidence of fraud with mail-in absentee ballots over the years. This is understandable, given that it's practically impossible to monitor who's actually completing absentee ballots, or to ensure that the privacy of the ballot (which protects against vote buying and selling) was preserved. By contrast, a voter who goes to a polling place pretending to be someone whom she's not is taking a big gamble -- it's a high risk, low reward strategy. The irony is that Georgia's law actually makes it easier to cast an absentee ballot, while imposing an ID requirement for in-person voting where fraud is much less likely.

- The court concludes that there's a substantial likelihood that the Georgia ID law imposes an undue burden on the right to vote, in violation of the Fourteenth Amendment to the U.S. Constitution. It finds that the laws isn't narrowly drawn to serve its purported justification of curbing fraud, and thus doesn't meet the strict scrutiny applicable to infringements on the right to vote. Alternatively, the court finds that the law probably isn't rationally related to the goal of curbing fraud, especially given Secretary of State Cox's testimony and the fact that the state has expanded absentee voting. If it were really serious about curbing fraud, that's the area where it would focus.

- The court also concludes that the Georgia ID law amounts to an impermissible poll tax, in violation of the Twenty-Fourth Amendment to the U.S. Constitution. While Georgia of course hasn't labeled its ID requirement a tax, the Court concludes that labels aren't dispositive. The fee for getting a photo ID card functions as a poll tax, by imposing a greater burden on those of lesser means.

- Interestingly, the court does not find their to be a probable violation of Section 2 of the Voting Rights Act of 1965, which prohibits practices that result in the denial of the vote on account of race. In 1982, this law was amended to impose a results test rather than an intent test. Judge Murphy finds the evidence that African Americans have lower incomes and are less likely to have a car insufficient. He leaves open the possibility, however, that this claim could be supported by additional evidence later. A recent study in Wisconsin, for example, showed that African Americans and Latinos in that state were much less likely to have drivers' licenses than other citizens. If the plaintiffs could come up with similar evidence with respect to Georgia, this would support their Section 2 claim.

In related news, I've posted this weekly comment on the Election Law @ Moritz site entitled "The Moneyball Approach to Election Reform." By that, I mean an approach that relies on empirical research and rigorous analysis, rather than anecdotes and seat-of-the-pants judgments. Unfortunately, most of the arguments for restrictive photo ID laws have been of the latter sort. Those arguments have glossed over the lack of evidence showing that fraud at the polling place is a significant problem, and have disregarded the disproportionate impact that photo ID laws will likely have on people of color, language minorities, disabled voters, elderly voter, and of course people of low income.

Thankfully, the district court's opinion looks behind the false assumptions that have motivated the push for voter ID. The Georgia case is almost certainly on its way up to the Eleventh Circuit Court of Appeals. Let's hope that court sees things the same way.

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Moritz College of Law The Ohio State University