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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

Ohio's ID Proposal: More Harm Than Good

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December 13, 2005

The eyes of the country were focused on Ohio during the last presidential election, and for good reason. The outcome of the 2004 presidential election turned on the Buckeye State. The comprehensive scrutiny to which the state's election process was subjected revealed a number of problems, prominent among them the handling of registration forms and provisional ballots. Although these problems probably weren't sufficient to change the outcome of the election, they did lead to numerous lawsuits, which I've described in this just-published article. A narrower margin of victory would probably have resulted in a litigated election, as was the case in 2000.

Unfortunately, the Ohio legislature is now considering a mammoth bill that, on balance, would do more harm than good. The present version of the bill (Sub HB 3) is almost 400 pages long. If enacted, it can be expected to cause longer lines at the polling place and more provisional ballots cast. That will make post-election litigation more likely, rather than less likely, in future years. Worse still, there's a significant risk that many eligible voters won't have their votes counted at all.

The ID Provision

The provision of Ohio's bill that has sparked the most concern is one that would require voters to provide identifying information in order to have their votes counted. The good news is that government-issued photo ID isn't the only form of identification allowed. In this respect, Ohio's ID law differs from those enacted by Indiana and Georgia. A federal court in Georgia has issued a court order against that state's ID law, while a challenge to Indiana's law is pending. Had Ohio gone the way of these two states, its law would almost certainly have been challenged as a violation of the Voting Rights Act and the fundamental right to vote under the U.S. Constitution.

That's where the good news ends, however. A close look at the fine print of the current Ohio bill shows why its ID requirement can be expected to cause serious problems – for voters, poll workers, and election officials – in future elections.

Perhaps the biggest problem lies in the bill's definition of acceptable forms of ID, which voters would be obliged to present. In addition to photo identification, the bill allows voters to show a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the "name and current address" of the elector. This is better than disallowing anything other than photo ID, but it can be expected to impose serious burdens for certain groups – especially voters who are poor, elderly, disabled, or homeless. What are voters to do if the utility bill comes in someone else's name? Even those who receive Social Security or other government benefits may not have ready access to a Xerox machine. For those voters, the imposition of this requirement creates an obstacle that can be expected to lead many to stay home. Indeed, one cannot help but wonder if this is part of the bill's purpose.

Even for voters who have a photo ID, such as a state-issued drivers' license, the Ohio bill will cause problems. A look at the fine print reveals that the photo ID must contain not only the voter's name but also his or her current address. It is common for people to move while retaining their driver's license. Even after a voter notifies the Bureau of Motor Vehicles of his or her new address, a new driver's license with the new address is not routinely issued. What this means is that some voters will be denied a regular ballot even though they have a current and valid driver's license with their photo. People whose licenses list a former address will be in for a rude surprise, when they appear to vote in 2006 or 2008.

[Note: Shortly after this comment was written, the legislature amended this provision of the bill, as noted in this blog post. Under the revised version of the bill, which was ultimately enacted into law, a driver's license with a former address is considered acceptable identification. See this eBook entry for more on the ID requirements, as enacted.]

Under the proposed bill, those voters who don't have ID with the current address will have to vote provisionally. To cast a provisional ballot, these ID-less voters will be required to provide the last four digits of their Social Security number or execute an affirmation under penalty of perjury, saying that they can't provide the required ID. Provisional voters will also be required to execute a written affirmation stating that they are registered in the jurisdiction where the ballot is being voted and that they are eligible to vote in that election, and containing their name and signature. County boards of elections will then have the responsibility of reviewing all these provisional ballots, to determine whether each voter is in fact qualified and properly registered to vote.

The Bill's Likely Consequences

If this sounds like a headache for everyone involved – from voters, to poll workers, to county boards of election – well, it probably will be just that. There are at least three major consequences that will flow from Ohio's proposed ID requirements, none of them favorable.

First, we can expect this process to cause longer lines at the polling place, especially in presidential election years. It will take time for poll workers to check identification and, for the many voters who don't have compliant ID, help voters fill out the affirmations required to vote provisionally. In addition to leaving many voters angry, including those with a valid driver's license, this will strain already scarce poll worker resources.

Second, the new bill is certain to result in more provisional ballots cast. Voters who don't have the requisite ID will be required to vote provisionally, as will those voters who are sent the newly-required mail notices that are returned as undeliverable. The increase in provisional ballots will, in turn, provide more for candidates in close elections to fight over after election day. It will thus increase the margin of litigation and, with it, the chances of post-election lawsuits deciding who wins and who loses – as was the case in Florida's 2000 presidential election in 2000 and Washington's 2004 gubernatorial election. The prospect of more protracted post-election litigation shouldn't please anyone, except dissatisfied candidates and their lawyers.

The third consequence is that an unknown number of eligible voters won't actually have their votes counted. There's no reliable way of predicting how many of the additional provisional ballots that will result from Sub HB 3 will, in the end, be counted. Much of this depends on the standards and procedures followed by individual county boards of election, and the present bill does little if anything to promote uniformity across the state. We can therefore expect not only that some eligible voters won't have their votes counted, but that there will be disparities in the vote-counting methods applied in different counties – a situation that could well lead to an equal protection challenge based on the rationale of Bush v. Gore.

There might be an argument for the new barriers that Sub HB 3 imposes to voting, if it were shown that the state has a serious problem with voters showing up at the polling place pretending to be someone they're not. But that evidence doesn't exist. To the contrary, a recent report, issued by the League of Women Voters and the Coalition on Housing and Homelessness in Ohio, found only four cases of proven fraud in the 2002 and 2004 elections, out of a cumulative nine million votes cast.

To the extent that there is any voting fraud, the available evidence suggests that it's much more likely to take place with mail-in absentee voting than with in-person voting at the polling place. That's understandable: A voter who shows up at the polls pretending to be someone they're not is taking a big risk, with very little to gain. If someone is determined to commit fraud, they're much more apt to do so through mail-in absentee ballots – a practice that, ironically, the Ohio legislature has liberalized through another measure it passed earlier this year (HB 234).

A Better Approach

The proposed ID provisions in Ohio's bill will make voters jump through hoops for no good reason. It will frustrate poll workers and election officials as well as voters, something we can ill afford at a time when we desperately need more qualified poll workers and when voting participation isn't what it should be. And this is just one of several problems with the proposed bill, others of which I've discussed here. The legislature should scrap Sub HB 3, and instead consider reforms along the lines of the Ten Most Urgent Election Reforms that my colleague Ned Foley has proposed. This would provide a much more fruitful starting place for real reform than the deeply flawed bill that's presently before the state legislature.