Lydia Quarles, JD, Senior Policy Analyst, Stennis Institute

Transcription

1 Technical Brief VOTER ID in Mississippi Lydia Quarles, JD, Senior Policy Analyst, Stennis Institute The National Conference of State Legislatures (NCSL) defines voter ID laws as those that require voters to show an identification document at the polls on Election Day. Photo voter ID laws require voters to show an ID that includes a photograph, such as a driver s license. Non-photo voter ID laws allow voters to present a non-photo bearing document, such as a utility bill or paycheck. 1 The NCSL has also synthesized supporting and opposing issues of Voter ID legislation. Supporters argue that they help prevent fraud and the perception of fraud. Opponents argue that they disenfranchise eligible voters and add cost and inefficiency to the voting process. Delbert Hoseman is not new to the fight to ensure that qualified voters, and no others, vote in Mississippi. When he became Secretary of State in 2007, he made clear that he believed that there were significant problems with Mississippi s voter rolls. And he was not wrong. The Saga of Wilkinson County Wilkinson County, Mississippi, among others, had long been the subject of suspicions of voter fraud when, in 2009, the prosecution of Connie Hollins, of Woodville, began. Judge Jim Parsons, who adjudicated the Hollins case, requested that the Secretary of State s office monitor behavior at all nine (9) of Wilkinson County s precincts. Secretary Hoseman complied, sending 13 of his employees to observe special elections resulting from the election contests. According to Secretary Hoseman, the information given to him by Judge Parsons was the first report verifying voter fraud in Mississippi. i Hoseman, after reviewing his employees report, determined that the issues of voter fraud in Wilkinson County were systemic.

2 But the fact remains that elected election commissioners in Mississippi are responsible for maintaining county voter rolls. Any voter roll error or inaccuracy taints the voting process. When are Mississippi government entities going to do due diligence with regard to voter rolls? Voter rolls are critically important in protecting the integrity of a free and fair election. The responsibility for maintaining voter registration rolls falls on the government authority (boards of supervisors, boards of aldermen, etc.) but the day to day responsibility falls on the county or municipal election commissioners, who purportedly run for office every four (4) years and serve four (4) year terms. The American Civil Rights Union [ACRU] has some questions about how reliable Mississippi s voter rolls are. As a result, in 2013, the ACRU, a counterpoint to the ACLU, sued two (2) Mississippi counties: Walthall and Jeff Davis Counties. These are the first two (2) pieces of litigation of this nature filed by the ACRU. The gravamen of the ACRU s lawsuits would require local election officials to clean up voter rolls in these Mississippi counties. According to the ACRU s allegations, there are more voters registered in Walthall and Jeff Davis Counties than there are citizens who are voting age, per the 2010 decennial census. According to the ACRU, the U. S. Justice Department has defaulted in its obligation to enforce the NVRA, and specifically Section 8, which requires states to remove ineligible voters from their registration lists. According to the allegations pled in the litigation against Jeff Davis County, the 2010 census determined that there were 9,536 residents of voting age, but the county has 10,078 registered voters. In Walthall County, the census reports 11,368 residents of voting age, while the voter registration rolls tops 14,100. According to the US Census, Mississippi had 2,113,000 voting age individuals in 2010, 72.5% of whom were actually registered to vote and 46.5% of whom actually voted. The national average for percentage of voting age individuals who are registered to vote is around the 70% mark. But Jeff Davis registration rate was 105%, while Walthall s was 124%. Clearly something isn t right. The NVRA has a two-fold purpose: to increase the number of eligible citizens who register to vote in federal elections and to promote the integrity of the electoral process. The statute requires all states to enlarge registration opportunities. The act was stuck with the motor voter moniker because states must allow registration opportunities in motor vehicle offices. (In Mississippi, these are Mississippi Highway Patrol offices.) The portion of the NVRA which theoretically promotes the integrity of the voting process is the voter roll maintenance section, which is Section 8. This section provides procedures to which states must adhere in order to prevent improper list purging and removal of eligible voters. It hasn t gotten the press that

3 motor voter has, but it is just as viable. Because there is a conviction among conservatives that the DOJ is making little, if any, effort at Section 8 enforcement, the ACRU has begun a series of lawsuits in several jurisdictions, two of which are counties in Mississippi. Ultimately, both Mississippi counties determined not to litigate, and have entered into settlement agreements. These agreements, which mirror each other, require compliance plans to be submitted to plaintiff s attorneys and tracking of progress. The counties were also ordered to pay up to $9,000 in attorneys fees to the ACRU. ii But Walthall and Jeff Davis counties are likely not the only Mississippi culprits. The Associated Press reported in October, 2008, that 29 of Mississippi s 82 counties have more registered voters than residents 18 years old and older. As of October, 2013, that list is down to 10, according to a spreadsheet on the Secretary of State s website. A question worth exploration: Is the expansion of voter access more important than maintaining the integrity of the voter rolls? One of the easiest ways to ensure the integrity of the voter rolls is to require voters to identify themselves in a manner that leaves no room for dispute. When legislatures begin to consider how to shape a policy of identification for voters, photo IDs came to the fore. The first state to require photo voter ID was Indiana; likewise, the first case that made its way in the federal court system was a case coming out of Indiana. The U.S. Supreme Court ruled in 2008 that states can require voters to produce photo ID at the polls without violating their constitutional rights. The case, Crawford v. Marion County (Indiana) County Election Board, 553 US 181 (2008), held that an Indiana law requiring voters to provide photo IDs did not violate the Constitution of the United States. Marion County prevailed, with the District Court determining that the law was not unconstitutional. The 7th Circuit Court of Appeals agreed, in a decision which affirmed the District Court s opinion. However the 7 th Circuit panel was divided; it was the dissenting judges position that the law was a thinly-veiled attempt to disenfranchise low-income Democratic voters. The US Supreme Court accepted cert and the photo ID requirement as constitutional, reasoning that such a requirement is closely related to Indiana s legitimate state interest -- that of preventing fraud, modernizing elections and safeguarding voter confidence. The majority opinion was written by Justice John Paul Stevens. The majority reflected that the burden on voters would affect only a small percentage, if any,

4 while this percentage of the population s burden would be offset by the state s overweening interest in reducing voter fraud. Justice Antonin Scalia, concurring with the majority, offered that the US Supreme Court should defer to state and local legislators and not get involved in local election law cases. It is for state legislatures, he said, to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class. The dissenters were Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. The majority dissent, written by Souter, argued that the legislation imposed an unreasonable and irrelevant burden on voters who were poor and old. Justice Breyer indicated that he did not oppose Voter ID in general, but thought that Indiana s procedures were too burdensome for low income and elderly voters. And so, with the Indiana decision, the Supreme Court made clear that voter ID requirements, within reason, were constitutional. And numerous states have followed Indiana s lead to enact voter ID laws. Characteristics of Voter ID Legislation As Voter ID legislation has evolved, those who follow legislative patterns have suggested key distinctions between the acts. One distinction is that of a strict state or a non-strict state, determined by virtue of the nature of the legislation. Strict states are those that have Voter ID legislation quite similar to Indiana. In a strict state, a person cannot cast a ballot without first showing an ID. If the individual is unable to provide an ID, he/she can cast a provisional ballot, which is separated from the cast ballots. The voter casting the provisional ballot is given circumstances and a time frame to deliver an ID so that the ballot can be counted. A failure to comply with the legislation will result in the vote not being counted. Non-strict states are those that require ID, but the type of ID is not as rigid, and these states give flexibility to poll workers to allow various voters without requisite ID to vote under certain conditions. In other words, in non-strict states, individuals can sign an affidavit of identity, or a poll worker may be able to vouch that he/she knows the voter personally, in which event the voter without an ID may be able to cast a ballot. Another distinction among Voter ID legislation is that of photo or non-photo. In passing legislation, a state can require an ID or a photo ID. Thus, an understanding of the breakdown of current legislation nationwide can be characterized by these terms: Strict Photo ID States, Non-Strict Photo ID States, Strict Non-Photo ID States, and Non-Strict Non-Photo ID States. Strict Photo ID

5 States include: Georgia, Indiana, Kansas, Mississippi, Tennessee and Texas. Non- Strict Photo ID States include: Florida, Hawaii, Idaho, Louisiana, Michigan, New Hampshire,iii South Dakota. Strict Non-Photo ID States include: Alabama,iv Arizona, Ohio, Virginia. Non-Strict Non-Photo ID States include: Alaska, Arkansas, Colorado, Connecticut, Delaware, Kentucky, Missouri, Montana, North Dakota, Oklahoma, Rhode Island, Utah, Washington. Several states with photo ID requirements make an exception for individuals who have a religious objection to being photographed.v Others have an exception for indigent individuals.vi South Carolina has an exception for individuals who have a reasonable impediment to getting an ID; Texas excepts individual who do not have a voter ID as a result of a recent natural disaster (a thought that the Mississippi legislature might consider). All voters, regardless of voter ID requirements or the absence of any requirement, are subject to perjury charges if they vote under false pretenses. And while Justice Scalia indicated in the Indiana decision that federal courts should not take on state legislative conflicts, that suggestion was not heeded. Both federal and state courts have continued to explore the myriad of issues in Voter ID. Considering the Balance The United States Supreme Court spoke volumes in its Indiana opinion. The Court made it clear that a piece of voter ID legislation will be found to be constitutional if it does not place an obviously onerous burden on an individual voter or group of voters. The Court made clear, as well, that it does not necessarily matter if some legislative supporters have had less than honorable motivations for supporting this litigation, so long as the state s motivation is honorable -- to prohibit voter fraud or ensure voting integrity. A review of state and federal litigation after the US Supreme Court s Indiana opinion would cause the casual observer to conclude that Voter ID and Photo Voter ID, if reasonably developed, are here to stay. And why not? The rational reason to accept and embrace Voter ID is because there is a great amount of electoral fraud. A review of the reasons that caused Secretary Hoseman to embrace Voter ID support the fact that electoral fraud has been rampant in our state. Secretary Hoseman ran on his record for election to his second term in One of the things he promised in a promise fulfilled -- was to bring voter ID to fruition in Mississippi. And he was able to run for his second term on the same ballot that gave Mississippians an opportunity to pass a constitutional amendment in favor of voter ID. Success came in the 60% pro voter ID count. As Secretary Hoseman campaigned, he told us that it is a crime to steal [a] vote and you ought to be alive when you cast your ballot. vii No doubt, Mississippi citizens agreed.

6 Mississippi Voter ID: A Smooth First Run To Secretary Hoseman s delight, Mississippi was able to use its new voter ID law for the first time in its June 2014 party primaries. Post primary, Hoseman indicated that of 440,000 votes cast, 513 individuals cast affidavit (or provisional) ballots across the State in the June 3, 2014 primary. One hundred seventy-seven of those individuals returned within the statutory period with adequate ID; 298 did not return. Thirteen of the 177 provisional ballots were rejected on grounds other than voter ID. The secretary was delighted with these results -- and why not? Not only was the Secretary of State delighted. So were various conservative organizations that see Mississippi s Voter ID statute and its viable use without controversy in the June 3 primary as fodder for upcoming Voter ID challenges. Hans von Spakovsky, writing for the Heritage Foundation s Daily Signal, indicated that the greatest story of Mississippi s party primary was that the state implemented Voter ID with no problems. He said: The sky did not fall. The Clarion Ledger concurred, indicating that Mississippi sailed through its first test of the new voter ID requirements. viii In addition to using various government-issued photo IDs, Mississippi, at the behest of the Secretary of State, insisted that Mississippi would provide a free ID for anyone who did not already have one.ix The effectiveness of Mississippi s voter ID law, and its application, will go a long way to solve Mississippi s voter fraud problem. While Voter ID or photo Voter ID is not the solution for all of the types of voter fraud, it certainly assists in the abatement of dual voting or voting the cemetery, two fraudulent activities that have been consistently and effectively used in various Mississippi counties. But the solution to voter fraud lies in the government s ability to conduct its due diligence and comb voter rolls for accuracy, not only in election years, but on all occasions. The expansion of voter access and the maintenance of integrity of the voter rolls both require governmental involvement. The condition of Mississippi s voter rolls perhaps have more to do with the fact that Mississippi election commissioners are not well compensated, and actually, there are statutory limitations on the amount of time they can spend on their work for compensation. Or it could be that Mississippi election commissioners lack suitable training, or a suitable length of training, or an absence of testing to determine whether the training objectives have been met.

7 Our impression, during our visits of various counties and municipalities during redistricting, is that Mississippi election commissioners are honest, dutiful individuals who want to contribute to their community. Whether they are contributing consistent with federal law is something else again. But to his credit, Secretary Hoseman has created a statewide electronic registry that county officials can use to check for duplicate voter registrations. Hoseman also provides handbooks for county and municipal election officials and his staff assists with election commissioner training. But despite his efforts, a close, hard look at your voter rolls might scare you. A Word about the Post Primary-Runoff Charge by Senator McDaniel One thing that should not be confused is Voter ID and the pending charge surrounding the Cochran-McDaniel June 24 runoff election. The complaints of State Senator McDaniel are not about voter ID issues. These complaints, generally, have to do with McDaniel s belief that many Democrats got out to vote for Cochran in the runoff. He alleges that he has evidence of lots of crossover voting, a high number of affidavit, ballots and proof on a litany of other complaints.x Voter ID and crossover voting are two entirely different issues. Crossover voting, which is one of Senator McDaniel s primary complaints, occurw when someone who is a Democrat votes in a Republican primary (or vice versa). The Mississippi primary system is something of a hybrid. Mississippi has closed primaries (meaning that there is a Democratic primary and a Republican primary) but it does not have party registration. Therefore, if a Democrat does not vote in the party primary, and there is a runoff, as occurred here, the Democrat has a legal right to vote in the GOP runoff (and vice versa). Senator McDaniel believes that many of the votes that Senator Cochran acquired at the runoff came from putative Democrats, who should not have been interested in the GOP primary runoff. There is no voter ID issue alleged. What about November? Thoughts about November With any luck, photo Voter ID in Mississippi will go just as well as it went in the primaries. However, McDaniel is requesting that the Secretary of State be stayed from certifying Senator Cochran as the GOP primary winner. Could this impact the November general election? Certainly so.

8 ENDNOTES i ii iii A copy of Walthall County s decree can be found at iv New Hampshire s strict voter ID law, passed in 2012, to be implemented in 2014, has been amended to delay implementation until September 1, v Alabama s legislation looks strict on its face, and its procedure parallels many of the strict states legislation. But there is an alternative. If two poll workers sign sworn statements that they know the voter, then the voter can cast a nonprovisional ballot. Alabama is currently considering a stricter amendment. vi Arkansas, Indiana, Kansas, Mississippi, South Carolina, Tennessee, Texas. vii Indiana and Tennessee. viii Hoseman campaign website. ix x The Secretary of State s office estimated that only 0.8 percent of Mississippians lacked an ID. xi

9 ABOUT THE INSTITUTE Based at our state's land grant university, the Institute is often referred to as Mississippi's think tank, but the Institute is much more. We are frequently called upon to provide technical assistance and consultation to state officials, local governments and community leaders regarding political, governmental, and economic and community development matters. Our mission is to enhance the capacities of state and local officials to deal effectively with today's challenges regarding many issues. If the legislature needs a definitive study on the effects of a change in state law, a municipal government desires a compensation study or salary survey, or an association of government officials requests training on the latest legal or policy issues, the Institute responds with its wide variety of resources and capabilities. ABOUT THE AUTHOR Lydia Quarles is a Senior Policy Analyst at the John C. Stennis Institute of Government, Mississippi State university. She received her Juris Doctorate from Cumberland School of Law, Samford University, and her MA and BA from Mississippi University for Women. After over a dozen years in the private practice of law in Alabama and Mississippi, she joined the Mississippi Workers Compensation Commission as an Administrative Judge in Eight years later, in 2001, she was appointed Commissioner of the agency. In 2006, she resigned to join the Stennis Institute and return to private practice. Quarles was honored in 2006 by the American Bar Association s Administrative Law and Regulatory Practice Section, receiving the Mary C. Lawton Award for lasting contributions to the Mississippi Workers Compensation Commission in the areas of alternative dispute resolution and access for Hispanic workers. She is also a recipient of the American Society of Public Administrators Joan Fiss Bishop Award, honoring a woman who has promoted increased participation of women in public administration, exhibited a defined contribution to increase women s involvement in the public sector, and demonstrated innovative leadership and accomplished professionalism in her own public sector career. Recognized by Martindale-Hubbell as an AV rated lawyer, the highest peer-evaluated designation, she also holds the Martindale-Hubbell designation as a Preeminent Women Lawyers in America. CONTACT INFORMATION John C. Stennis Institute of Government and Community Development 382 Hardy Road Mississippi State, MS Ph: Fax: Mailing Address: Stennis Institute PO Drawer LV Mississippi State, MS Mississippi State University does not discriminate on the basis of sex, race, age, sexual orientation, ethnicity, etc. Mississippi State University is an equal opportunity employer.

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