The conundrum of how to solve voter identification discrepancies without a blanket exclusion of downtrodden but eligible voters has spread across the United States. The threat of voter fraud has caused over 30 states to enact new voter identification requirements since 2004. The requirements vary by state and in strictness, with six states currently and potentially nine states by the end of 2012 mandating a federal or state issued I.D to be presented at the polling location. The battle at the state level then lies at what each state legislature believes to be free and fair elections. Both sides have made their arguments abundantly clear about what side of the spectrum they stand on in determining whether it is more vital to shrink the possibility of in-person voter fraud or to shrink the turnout by requiring identification that roughly ten percent of eligible voters do not have readily available.
The passing of federal legislation including the Help America Vote Act (HAVA) and National Voter Registration Act (Motor Voter) have encouraged more voter turnout by reducing the complications needed to register as a voter and ensure proper procedure at the polling location. The novel concept for the legislation came as a means to update and adapt federal standards to the changing landscape. As far as the legislation goes from a national level, states are constitutionally granted certain privileges in how they are to run their elections. The United States Constitution grants the states the ability to establish time, place, and manner regulations on federal elections. This power is limited, however, as state voting regulations may not unduly burden or abridge the right to vote.
As states are delegated the right to set voting regulations as their state legislature best sees fit, as long as it is still in compliance with constitutional guidelines, they have actively discussed and at times enacted new legislation regarding voter identification requirements. Indiana in 2005 passed the first bill to require photo identification at the polls. The law was challenged and the federal district court, the 7th Circuit Court of Appeals, and the Supreme Court all ruled in favor of its legitimacy. Justice Stephens (joined by Chief Justice Roberts and Justice Kennedy) held, “on the basis of the record made in this litigation, we cannot conclude that the statute imposes excessively burdensome requirements on any class of voters.” The passing of legislation has been reviewed by the United States Justice Department after it passes the state legislature and courts.
A notable example of the Justice Department intervening after the legislature has occurred with the reversal of a bill in South Carolina that would have mandated a government issued photo I.D to be presented at the polling location. In House Bill 3003, a bill sponsored by 21 House Republicans, the previous voting standards were amended to “”When a person presents himself to vote, he shall produce a valid and current: (1) South Carolina driver’s license; or (2) other form of identification containing a photograph issued by the Department of Motor Vehicles.” While for most the United States population, reports indicating upwards of 89 % of eligible voters, have the necessary documentation to vote, it becomes an issue for those who don’t. Especially in a state like South Carolina where there is a large rural, senior, and minority population mitigating circumstances prevent many of those people from being able to receive the documentation needed from the Department of Motor Vehicles.
As a result, the Justice Department in a letter by Attorney General Thomas Perez, addressed their reasons for repealing the decision by the state. Perez, points to reasons that many critics of the recent photo id legislation point to. He says “although the state has a legitimate interest in preventing voter fraud and safeguarding voter confidence,” it didn’t provide “any evidence or instance of either in-person voter impersonation or any other type of fraud that is not already addressed by the state’s existing voter identification requirement. ” Further, he detailed the discriminatory practice that this law can instill during the elections saying “The voting change must be measured against the benchmark practice to determine whether it would “lead to retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Later in his letter to the South Carolina legislature he points to the numbers that suggest “when dis-segregated by race, the state’s data show that 8.4% of white registered voters lacked any form of DMV issued photo id, as compared to 10% of non-white registered voters.” The numbers substantiate Mr. Perez’s claims, the Brennan Center of Justice at the NYU Law School report that:
“The impact of ID requirements is even greater for the elderly, students, people with disabilities, low-income individuals, and people of color. Thirty-six percent of Georgians over 75 do not have a driver’s license. Fewer than 3 percent of Wisconsin students have driver’s licenses listing their current address. The same study found that African Americans have driver’s licenses at half the rate of whites, and the disparity increases among younger voters; only 22% of black men aged 18-24 had a valid driver’s license. Not only are minority voters less likely to possess photo ID, but they are also more likely than white voters to be selectively asked for ID at the polls. For example, in New York City, which has no ID requirement, a study showed that poll workers illegally asked one in six Asian Americans for ID at the polls, while white voters were permitted to vote without showing ID.”
Even with the numbers suggesting one course of action a substantial majority of states have some requirements to possess identification at the poll. Wisconsin still has pending legislation after a District Judge put out an injunction stating “[the law] is unambiguous, and means exactly what it says. It creates both necessary and sufficient requirements for qualified voters. Every United States citizen 18 years of age or older who resides in an election district in Wisconsin is a qualified elector in that district.” Other states are still awaiting affirmation that their legislation does not violate section five of the Voting Rights Act. Even with the legal challenges to the legislation, the question remains as to what the effect of this legislation will be.
Given how recent the bills have been, evidence of a depressed turnout are still largely insufficient for many of the courts as evidenced in the ruling in Indiana. However, a Harvard University study found that
“people in photo ID states were 2.9% less likely to have voted than people in states without an ID requirement. A larger negative effect existed for less educated voters (5.1%) and racial minorities (6–10 %).A California Institute of Technology study expanded upon the EAC study by using survey data from four general elections: 2000,2002, 2004, and 2006. The study found a significant negative relationship between more stringent ID laws and voting and a stronger negative effect on less educated and low-income voters.”
Supporters of the new stringent identification laws are clamoring for further investigation into cases of voter identification fraud. A recent report published by the Republican National Lawyers Association found 311 cases of proven fraud, but this data goes as far back as 1997. In Minnesota, the organization Minnesota Majority found 113 cases of voter fraud in 2008 alone. Minnesota Public Radio further investigated that report and found “Minnesota Majority’s estimate that 113 people have been convicted of voter fraud may be in the ballpark, though a precise number is elusive.” Florida, another state seeking to enact stricter identification laws, has questioned local election supervisors about an alleged 2,600 people registered to vote that are not actually eligible. In this report, an astounding 53,000 people were still registered even though they are deceased. However, these numbers are highly questionable and other sites have reported astoundingly different results. Politifact, a site dedicated to evaluating political statements, reported only a relatively miniscule 49 cases of voter fraud in the last four elections.
Even if the question of suppressed turnout is answered, the overarching presupposition is whether it is just to enhance voter identification requirements in order to provide with greater certainty election results that are comprised of eligible voters. The comparisons to a poll tax from an assortment of Democratic leaders only enhance what has clearly become a highly partisan issue.
In the graph below, in states that as of 2010 have a Republican legislature outnumber Democratic 18-2 in requiring some form of photo identification to be shown at the polls.
- Comparison of States and ID Requirements
Democratic states have responded in an assortment of ways to combat the stricter voter registration laws. California has passed a bill to allow online voter registration. In this way, they are hoping to eliminate the necessity of getting to the DMV, especially for those that do not have or do not need Driver’s Licenses. Illinois has responded as well by introducing legislation that makes it easier to receive a voter registration card.
The battle will continue in both state legislatures and in the courts as to how to proceed on an issue clearly split along party lines. The rhetorical devices used in how to best categorize what amounts to fair voting practices will remain a point of contention. Both sides’ evidence suggests that in some form or another, a clearer and less complicated system for voter registration will have to be established. Considering how new these laws are, it will definitely be interesting to see their effects in the upcoming elections.
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