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Week of 2.8.08

Voter ID Debate

Election reform expert Wendy Weiser explains what's at stake in the voter ID case before the Supreme Court and previews voting issues we should be watching this election. Weiser directs the Brennan Center for Justice's work on voting rights and elections.

NOW: Later this year, the Supreme Court will be ruling on Indiana's voter ID law, considered the most restrictive in the nation. How will the Court's ruling affect the 2008 election in terms of the impact of voter ID laws?

Wendy Weiser: If the Supreme Court rules in Indiana's favor, many Indiana citizens will be unable to vote in the November elections. A recent study shows that 13% of registered voters in Indiana don't have the limited kinds of photo ID required by the state's voter ID law. These voters are disproportionately seniors, young people, African Americans and people with low incomes.

The Court's ruling will also affect prospective voters in Georgia and Arizona. Both of those states recently passed restrictive voter ID laws that are currently being challenged in court. If the Court broadly authorizes voter ID laws, these laws will remain on the books, blocking thousands of prospective voters in those states.

Voters in other states could be impacted as well. A decision upholding Indiana's law could boost efforts to push through new voter ID laws in states across the country. In 2007, more than 30 states introduced bills either requiring photo ID or documentary proof of citizenship to vote. In 2008, 17 states already have such bills pending. (Currently, only Indiana and Georgia refuse to count the votes of citizens who don't show photo IDs, and only Arizona requires documentary proof of citizenship to register to vote.)

If these restrictive measures pass this year, the number of affected voters could be huge. A recent nationwide survey sponsored by the Brennan Center found that 11% of voting-age Americans -- roughly 21 million citizens -- do not have government-issued photo ID. And by the time new ID laws pass, it may be too late for citizens who don't already have the required IDs to get them in time for the presidential election.

On the other hand, if the Court rules that Indiana's voter ID requirement violates the U.S. Constitution, other restrictive ID requirements would likely fall as well. Depending on the Court's reasoning, there may be additional litigation across the country challenging other recently enacted ID requirements.

NOW: Does obtaining photo identification really pose a significant obstacle to voters?

WW: Most Americans have driver's licenses, and so they don't feel that it is a burden for them to obtain ID and to present it at the polls (assuming their IDs haven't been lost, stolen, or left at home). But a significant percentage of Americans-10-12% by most estimates-don't have photo IDs because they don't drive, travel abroad or otherwise use photo IDs to get by in their communities.

For those people who do not already have photo IDs, it can be a serious burden to obtain one. First, photo IDs cost money. In New York, for example, a driver's license costs over $50. And once you get a photo ID, you have to pay every few years to keep it current.

In addition to the direct costs of state-issued photo IDs, there are substantial indirect costs. You typically need to show ID to get photo ID. An applicant for a photo ID in Indiana, for example, has to present a certified birth certificate, a passport, naturalization papers, or a U.S. military or merchant marine photo ID. A birth certificate in Indiana costs $10 plus county fees; a U.S. passport costs $97; and replacement naturalization papers cost $380 and can take up to a year to obtain.

For those Americans least likely to have photo IDs-including poor people, senior citizens, and people with disabilities-the travel and time off needed to obtain those IDs can also pose considerable obstacles. This is especially true for the many Americans, like 92-year-old Mary Wayne Montgomery Eble in Indiana, who live far from a government office that issues IDs and have limited access to transportation. Ms. Eble lives in a rural county with no public transportation, 45 minutes away from the nearest state office that issues photo IDs, and one hour away from the place she would have to go to obtain a birth certificate. This is not uncommon. More than half of the counties in Georgia, for instance, don't have state ID offices.

It is not good enough to say, "most people have photo IDs." Universal suffrage isn't about most Americans being able to vote. It's about everyone who is eligible being able to vote.

NOW: In a recent article you stated that much more is at stake in this case than the future of voter ID laws. What effect could the Court's ruling have on other voting laws?

WW: To decide the voter ID case, the Supreme Court will set the legal standards for determining when it is OK and when it is not OK for a state to place direct obstacles between eligible citizens and the ballot box. In other words, it will set the constitutional ground rules for deciding all cases challenging election rules that suppress votes- including sweeping purges of the voter rolls, restrictions on voter registration and provisional ballot counting rules.

If the Court sets lax standards, then it will be much easier for politicians and officials to manipulate election rules to suppress votes without having to justify their actions in court. That is a scary prospect in light of all the new vote suppression measures that have cropped up across the country in the past few years. These measures are based on the same faulty justification used by Indiana to support its voter ID law-the unsubstantiated fear of a rare kind of voter fraud. If fear alone is sufficient to overcome the right to vote, then the franchise will be significantly devalued, and we should brace ourselves for a new spate of unfair voting procedures.

NOW: What are your concerns regarding the use of "voter suppression" tactics in this year's elections?

WW: My concerns about voter suppression this year fall into two categories.

First, over the past few years, there has been a spate of new election-related laws, rules, and administrative practices that shut out legitimate voters for no good reason. These range from restrictive voter ID laws, to unfair and discriminatory purges of the voter rolls, to new barriers to getting on the voter rolls, to laws that shut down nonpartisan voter registration drives, to unfair provisional ballot rules. Although courts have blocked some of these measures, others will still be in place this November and will prevent many people-especially people of color, poor people, seniors, and students-from voting or having their votes counted.

Second, I am concerned about the voter suppression that occurs through less official means, including voter caging (the practice of sending mail to addresses on the voter rolls and using the list of returned mail as the basis to purge or challenge voters' registrations); intimidating challenges to voters' eligibility at the polls; and deceptive practices (such as sending voters misinformation designed to keep them from voting properly). These kinds of voter suppression tactics have been prevalent in recent elections. They are not random; they are typically targeted at minority communities.

In a year in which the interest in the elections is at a record high, we should not stand for tactics that depress participation -- including efforts to manipulate the rules of the game and efforts to intimidate or push out legitimate voters.

NOW: Have you heard about any such tactics being used so far in the 2008 primaries?

WW: Through the Election Protection hotline, a nonpartisan voter assistance service that has been fielding calls from voters across the country, we have heard stories of voter suppression and disenfranchisement in the primaries.

For example, across the country, long-time as well as new voters showed up at their correct polling places to find that their names were not on the voter rolls. While we don't yet know why all these people were taken off the rolls, likely reasons include purges of the voter rolls and voter caging. Many states do not notify voters before their names are removed from the rolls, and so mistakes or more nefarious acts go unchecked.

While it is typically difficult to uncover voter caging efforts, in the last presidential election we saw preparation for voter caging efforts in Ohio, Florida, Wisconsin, Nevada, and Pennsylvania. There's no reason to think that we won't see these same kinds of efforts in the November election as well, considering how hotly contested it is. To ensure that voters aren't unfairly disenfranchised because of unreliable caging efforts this year, Congress should pass the Voter Caging Prevention Act.

There were also scattered episodes of voter intimidation. For example, the hotline fielded calls on Super Tuesday from voters in Atlanta, Georgia, complaining about state election monitors armed with guns standing outside the polls. In California, New York, and Illinois, there were reports of poll workers demanding to see ID, even though no ID is required in those states. Voter intimidation and deceptive practices are typically more common in the general election. These practices can and should be prevented this year by passing the Voter Intimidation and Deceptive Practices Prevention Act.

NOW: Have you heard about any other voting "irregularities" being reported in the 2008 primaries so far?

WW: Through the Election Protection hotline , we heard reports of a broad range of election irregularities. The most common problems were:
  • Voters receiving the wrong information from misinformed poll workers
  • Poor ballot design confusing voters
  • Voting machine breakdowns
  • Failure to follow proper emergency ballot procedures
  • Long lines at the polls
Also, many registered voters found that their names were missing from the voter rolls or that their party enrollments had been changed.

While it's difficult to tell what caused these problems, at least some callers were disenfranchised due to unfair election rules that were put in place in part to prevent certain types of people from voting. New voter ID requirements in Arizona and Georgia, for example, prevented some callers from voting on Super Tuesday.

Other calls demonstrated that underfunded and poorly run elections can be as harmful to the franchise as deliberate attempts to suppress the vote. Votes were lost because poorly trained poll workers did not give voters provisional ballots or directed them to the wrong polling place. Votes were also lost because there were too few ballots or polling places for what ended up being a record turnout. In other places, votes were lost because new voting equipment had not been properly tested or because old and broken-down voting machines had not been replaced.

NOW: What other issues make you concerned about the integrity of the 2008 election?

WW: Problems with electronic voting machines remain a big concern. In 2006, the Brennan Center's Task Force on Voting System Security issued a report (PDF) that detailed the security flaws with all the current electronic voting systems and outlined the steps needed to make our elections safe and accurate. While most jurisdictions now have voter verified paper or audit records, those records are of limited security value unless states actually conduct audits (PDF). Currently, only 13 states conduct post-election audits; that is not nearly good enough. Without random audits, we cannot effectively catch discrepancies and security breaches or otherwise monitor the accuracy and security of our voting systems.

We are also concerned that states may not be adequately prepared for the increase in turnout expected this November. We already saw problems in 2004 because states were not prepared for the increased turnout that year; this year, turnout is expected to be even higher. Unless states plan ahead, higher turnout could cause delays in processing voter registration forms, potentially disenfranchising new registrants, and insufficient resources at the polls, creating long lines and other problems.

NOW: What do you recommend concerned citizens do to protect the vote this year?

WW: If you experience or witness a problem on Election Day, you should report it to the non-partisan Election Protection Hotline at 1-866-OUR-VOTE. You should also report it to your local election officials and your poll workers. The only way problems can be resolved is if they're reported.

Another important step you can take to ensure the elections go smoothly is to volunteer as a poll worker. Most election jurisdictions have a chronic shortage of qualified poll workers, and yet most of the problems on Election Day could be avoided if there were enough poll workers who were properly trained to implement rules properly and consistently. And you will get paid for performing this civic service, even if the pay is not great.

All voters would be wise to check their registration status in advance. Many states have recently updated their voter registration lists, and there could be many mistakes. Make sure that your name, address, and other identifying information are listed correctly, that you've cancelled your old registration if you've moved, and that you are still an active voter in your county. You can do this by getting in touch with your local or state election officials. Many states even have websites allowing you to do this online. It only takes a minute to check your registration status, but it can save you a lot of time and frustration, and the possibility of your vote not being counted.

NOW: In a recent op-ed, Jimmy Carter and James Baker wrote in favor of some kind of voter ID requirement, but emphasized it should "make it easy to vote but tough to cheat." What's your view of the Carter-Baker position in favor of a modified voter ID law?

WW: We agree with former President Carter and Secretary of State Baker that it is a good idea to make identification more widely available and less expensive. But we should not put the cart before the horse: we can't make ID a prerequisite to voting before eligible American voters have ID. And right now, 10-12% of Americans do not have state-issued photo ID.

This is the key difference between the hypothetical reforms Carter and Baker recommend and the actual laws that are being passed. They write that "states would provide free voter photo ID cards for eligible citizens; mobile units would be sent out to provide the IDs and register voters." But on the ground, the states that have required voters to show ID have done little to nothing to ensure that citizens are actrually able to get ID. State governments have yet to create an accessible and affordable system of distributing photo IDs. Photo IDs still cost money-either to get the ID itself or to get the underlying documentation you need to get photo ID. And mobile units have not worked to solve this very real problem.

In 2005, the Carter-Baker Commission released their original report that called for several election reforms. Although a number of its recommendations could improve our electoral system, several of their suggestions (such as the ID requirement) would damage an often flawed process even more. The Brennan Center issued a response to the Carter-Baker report that laid out our position against using REAL ID cards or any other photo ID cards for voter identification.