POLITICAL PARTICPATION: VOTER IDENTIFICATION AND VOTER REGISTRATION REQUIRMENTS 1

POLITICAL PARTICPATION: VOTER IDENTIFICATION AND VOTER REGISTRATION REQUIRMENTS 1 Introduction Throughout our nation s history, various groups have struggled for the right to vote, both as a matter of law and in practice, while others have sought to suppress the those votes. Voter suppression efforts sometimes took form as intentional and targeted acts, such as physical violence and intimidation, but were also reflected in laws that were ostensibly neutral but had the known purpose and effect of disenfranchising minority voters, such as poll taxes and literacy requirements. Changes to the legal landscape including, most notably, the Voting Rights Act, dramatically improved minorities ability to vote. Nevertheless, efforts to suppress voter turnout continue. For example, before the 2002 and 2004 elections, fliers were distributed in a number of localities that misstated the date for Election Day and/or falsely claimed that those who had unpaid debts such as rent, parking tickets or child support were not eligible to vote. 2 Political participation may also be limited in other ways. State election laws or procedures, such as voter identification or registration requirements, though facially neutral, can result in significant numbers of voters, particularly among traditionally disenfranchised groups, losing their ability to cast a ballot, according to critics of such laws. Supporters of such measures claim they help to combat voter fraud. While many issues and practices may impact individuals ability to vote, this study guide focuses on voter identification requirements, which are increasingly being enacted at the state level, and other voter registration requirements, which may also limit political participation. Voter ID requirements Background In recent years, there have been a number of proposals at the state and federal level to require citizens to provide photo identification when they register to vote or go to the polls on Election Day. A number of states have enacted photo identification laws (e.g. Arizona, Indiana, Missouri and Georgia) and such laws have also been considered at the federal level. Colorado, on the other hand, recently rejected a voter identification law modeled after the Georgia law. These measures have created significant controversy. 1 ACS would like to thank Rita Aguilar for her research assistance with this program guide. 2 See Jo Becker, Groups Say GOP Moves to Stifle Vote, WASH. POST, August 26, 2004, available at http://www.washingtonpost.com/wp-dyn/articles/a33798-2004aug25.html; Run Up to Election Exposes Widespread Barriers to Voting, available at http://www.house.gov/judiciary_democrats/widebarriersrpt.pdf; The Long Shadow of Jim Crow: Voter Intimidation and Suppression in America Today, available at http://www.pfaw.org/pfaw/general/default.aspx?oid=16373. Senator Obama has proposed the Deceptive Practices and Voter Intimidation Protection Act of 2005, S. 1975, which would criminalize lying about voting practices and voter eligibility. 1

Supporters of strengthened identification requirements claim that such measures are a reasonable way to combat fraud and improve the integrity of elections. A majority of the Carter-Baker Commission on Federal Election Reform recommended an ID requirement for just these reason. 3 The Commission stated any required voter ID must be available without expense, and that citizens should be provided convenient opportunities to obtain these IDs. 4 One supporter of Georgia s identification law opined that it actually benefits voters by preventing their votes from being diluted by invalid ones. 5 Opponents of photo identification laws tend to focus on the exclusionary impact of such laws on the poor, the disabled, the elderly, and people of color who have traditionally been disenfranchised. Spencer Overton, a member of the Carter-Baker Commission who dissented from the ID recommendation, notes that supporters of identification laws fail to show that such laws will prevent one fraudulent vote from being cast for every 1,000 votes excluded. 6 Moreover, because voter identification laws generally deem driver s licenses to be an acceptable form of identification, but limit other forms of identification, they disproportionately impact the voting rights of those who do not have a driver s license or another designated form of ID. According to the 2001 Carter-Ford Commission, an estimated 6% to 10% of voting-age Americans (up to 19 million potential voters) do not possess a driver s license or other state-issued identification. 7 Over 3 million people with disabilities do not have identification issued by the government. 8 AARP of Georgia estimated that over 150,000 Georgians who actually voted in the last election lack driver s licenses and are unlikely to have other government-issued photo ID. 9 A June 2005 study in Wisconsin found that among Wisconsin men ages eighteen to twenty-four, 36% of whites, 57% of Latinos, and 78% of African Americans lacked a valid driver s license. 10 While voter identification laws allow for voters to present other government-issued identification, there is often a significant financial cost to obtaining the documentation needed to obtain that ID: A certified copy of a birth certificate costs from $10 to $45 depending on the state, a passport costs $85, and certified naturalization papers cost $19.95. 11 This has lead critics of ID laws to equate them to a poll tax. 12 3 See FEDERAL COMMISSION ON ELECTION REFORM, BUILDING CONFIDENCE IN U.S. ELECTIONS (September 2005) 18-21. 4 Id. 5 Common Cause/Georgia v. Billups, F.Supp.2d, 2006 WL 2089771 at *32 (N.D. Ga. July 14, 2006) (citing declaration of Gary Smith, Director of Elections and Registration for the Forsyth County, Georgia Board of Elections). 6 Spencer Overton, Stealing Democracy Quick Facts, http://www.stealingdemocracy.com/facts.cfm#8 7 Id. 8 Id. 9 Barbara Basler, Smile Or Lose Your Right to Vote: Do Photos IDs Safegaurd Elections Or Disenfranchise Voters?, AARP Bulletin (Sept. 2005), available at http://www.aarp.org/bulletin/yourlife/voter_id.html (last visited Aug. 17, 2006) 10 Spencer Overton, Stealing Democracy Quick Facts, http://www.stealingdemocracy.com/facts.cfm#8 11 Id. 12 Voter Suppression in Missouri, N.Y. TIMES, Aug. 10, 2006 at A22. 2

Moreover, opponents of photo identification laws point out that little or no evidence of individual voter fraud actually exists, and that identification requirements would not actually remedy the purported problem. For example, a statewide survey of county election officials in Ohio found only four instances of ineligible persons voting or attempting to vote in 2002 and 2004 out of 9,078,728 votes cast - a rate of 0.00004%. 13 Moreover, critics also note that some voting identification requirements purportedly aimed at stopping voter fraud do nothing to remedy the alleged problem. For example, voter fraud appears to be much more of an issue with absentee ballots than with in-person voting, yet recent photo identification laws purportedly aimed at stopping fraud have stringent requirements for in-person voting but leave untouched or even loosen the requirements for absentee voting. 14 Court Challenges Voter identification laws in Indiana, Arizona, Georgia and Missouri have been challenged as violating the Constitution, federal law and, in Missouri and Georgia, state law. These challenges have met with mixed results. In Indiana, the district court denied plaintiffs numerous claims, characterizing the identification requirement as a reasonable time, place, and manner election regulation. 15 That decision has been appealed to the Seventh Circuit. In Arizona, the district court refused to temporarily enjoin the identification law, holding that plaintiffs had not shown a likelihood of success on the merits on their claims that the Arizona law violated the National Voter Registration Act and was not properly precleared by the Department of Justice. 16 As of this writing, additional challenges to the Arizona law are pending and no decision has yet been issued in the Missouri case. 17 Georgia enacted photo identification laws in 2005 and 2006; both laws have been enjoined. The 2005 Photo ID law required voters to present a government-issued photo ID law as a precondition to voting in person and charged a fee for such IDs. 18 The court held that plaintiffs were likely to succeed on their claims that the 2005 law unduly burdened the right to vote and constituted an unconstitutional poll tax. 19 Georgia then enacted the 2006 Photo ID law which contained similar identification requirements as the 2005 law, but allowed citizens to obtain a government-issued photo ID at no cost. In issuing a preliminary injunction, the court held that, [a]ccepting that preventing voter 13 Spencer Overton, Stealing Democracy Quick Facts, http://www.stealingdemocracy.com/facts.cfm#8 14 See e.g., Voter Suppression in Missouri, N.Y. TIMES, Aug. 10, 2006 at A22; Common Cause/Georgia v. Billups, F.Supp.2d, 2006 WL 2089771 (N.D. Ga. July 14, 2006). 15 Indiana Dem. Party v. Rokita, No. 1:05-CV-0634-SBB-VSS, 2006 WL 1005037 at *52 (S.D. Ind. Apr. 14, 2006). 16 Gonzales v. Arizona, F.Supp.2d, 2006 WL 1707956 (D. Ariz. June 19, 2006). 17 Election Law @ Moritz, Major Pending Election Law Cases, http://moritzlaw.osu.edu/electionlaw/litigation/index.php 18 Common Cause/Georgia v. Billups, F.Supp.2d, 2006 WL 2089771 at *8 & *9 (N.D. Ga. July 14, 2006). 19 Id. at *1 3

fraud is a legitimate and important State concern, a number of significantly less burdensome alternatives exist to address to State s interest in preventing for fraud for the [primary] election. 20 Though court accepted plaintiffs Equal Protection claim, it ruled that plaintiffs did not demonstrate a likelihood of success on their claims that the 2006 law constituted a poll tax or violated the Civil Rights Act of 1964. 21 The court left open the question of whether the law would be enjoined for the November 2006 general election. 22 Given that other states are considering photo identification laws, the decisions in Georgia, Arizona and Missouri are likely to have national significance. Other Voter Registration Requirements Critics note that registration requirements other than identification laws can also limit political participation. According to Bert Neuborne, Legal Director of the Brennan Center for Justice at NYU, early voter registration deadlines[] persist in dampening overall voter participation and stratifying the voting and non-voting populations along demographic lines, such as income and education level. 23 Potential voters may miss deadlines or may have their registrations rejected without having an opportunity to cure any defects, and therefore not be able to vote on Election Day. Laws governing voter registration procedures may also limit participation. For example, Florida and Ohio have recently enacted regulations that pose additional requirements and risks on private, nonpartisan organization that register voters. Ohio has imposed a series of training and reporting requirements on such organizations, while Florida has added reporting requirement and imposes fines on non-partisan organizations (but not political parties) that fail to comply with the new rules. Lawsuits have been filed in both cases on a number of grounds, contending that the laws are discriminatory violations of the Voting Rights Act and violate the First Amendment. 24 Several states operate Election Day Registration ( same-day registration ) regimes. 25 Although critics view these systems as more prone to fraud, proponents deny those claims and tout the benefits in terms of voter access. Citizen interest does not peak 20 Id. at *59. 21 Id. at *60-*65. 22 Id. The 2006 Act was also temporarily enjoined by a Georgia state court. See Lake v. Purdue, No. CV119207 (Fulton Cty., Ga. July 7, 2006) available at http://moritzlaw.osu.edu/electionlaw/litigation/documents/westmoreland.pdf (last visited August 18, 2006). 23 Report of Eliminating Barriers to Voting Conference (Nov. 30, 2001) 8, available at http://www.brennancenter.org/resources/downloads/edr_report_113001.pdf (last visited August 10, 2006); see generally Ian Urbina, New Registration Rules Stir Voter Debate in Ohio, N.Y. TIMES, Aug. 6, 2006 at A16. 24 Election Law @ Moritz, Major Pending Election Law Cases, http://moritzlaw.osu.edu/electionlaw/litigation/index.php (last visited Aug. 18, 2006) (discussing League of Women Voters v. Cobb, No. 06-21265-CIV-JORDAN (S.D. Fla.) and Project Vote v. Blackwell No. 1:06- cv-01628-kmo(n.d. Ohio)). A similar case was recently filed in Georgia challenging its registration requirements. ACORN v. Cox, No. (1:06 CIV 1891 N.D. Ga.). See id. 25 Idaho, Maine, Minnesota, New Hampshire, and Wyoming. Montana allows same-day registration for certain local office elections. North Dakota does not require voter registration. Center for Policy Alternatives, Election Day Registration, http://www.stateaction.org/issues/issue.cfm/issue/electiondayregistration.xml (last visited August 7, 2006). 4

until shortly before Election Day, after most states registration deadlines have passed, so many interested citizens who are not registered are unable to vote. 26 The 2004 elections showed the expected positive impact on turnout. Same-day registration states averaged 73.8% turnout, while other states averaged 60.2%. 27 Proponents of such systems note that they may also specifically increase turnout among underrepresented groups. 28 Conclusion While America has made important progress in expanding the franchise over the last half-century, political participation rates still fall below many other democracies. The role of new measures, like photo ID laws and traditional requirements, like voter registration deadlines, in suppressing voter participation are topics ripe for discussion and programming. 26 Id. 27 Demos, High 2004 Turnout for States with Election Day Registration (Jan. 10, 2005), available at http://www.demos.org/pub417.cfm. 28 R. Michael Alvarez, Stephen Ansolabehere, and Catherine H. Wilson, Election Day Voter Registration in the United States: How One-Step Voting Can Change the Composition of the American Electorate (Caltech-MIT Voting Technology Project Working Paper, June 2002). 5