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Why the House's Recent Voter Identification Bill Is Fatally Flawed


Friday, Sep. 29, 2006

Earlier this month, the House passed H.R. 4844 -- the Federal Election Integrity Act of 2006. The bill would require all voters to present difficult-to-obtain, costly government-issued photo identification in all federal elections, commencing in November 2008. It also would require that, by 2010, all voters present identification that could only have been obtained upon proof of citizenship.

This law, if passed by the Senate, would dramatically revamp the way that we vote in the U.S. by essentially requiring that every voter prove their citizenship as a prerequisite to participating in the political process. But is there a need for such drastic action?

I will argue that the answer is no. The bill's mandatory voter ID requirements are both ill-considered, as matter of policy, and vulnerable on a number of constitutional grounds. In particular, the federal law - like similar state voter identification laws that have been passed -- likely violates the Constitution's Equal Protection guarantee and its poll tax prohibition. At base, too, such laws impermissibly burden the fundamental right to vote.

No Empirical Evidence Suggests That Vote Fraud is a Systemic Problem

The most recent bill passed by the House suggests that there is a need for Congress to take corrective measures to prevent vote fraud, and to bar non-citizens from participating in our electoral process. But in fact, there is no empirical evidence or study that suggests that vote fraud occurs on any significant level.

Rather, the evidence suggests that instances of duplicative voting, impersonators seeking to cast ballots on behalf of dead voters, and illegal aliens attempting to vote are too few and far between to justify the burden that these laws impose on all voters. Illegal aliens, especially, have a strong disincentive dissuading them from voting: For them, to vote is to risk unwanted contact with election officials, police, and ultimately Homeland Security's immigration bureau - and thus to risk detention and deportation.

Moreover, in those rare instances in which vote fraud does occur, there are significant federal and state laws that make such conduct prosecutable. For example, a federal law makes it criminal for non-citizens to falsely assert citizenship and another federal law makes it illegal to solicit aliens to register or vote.

Proponents of the House bill suggest that voters will have more confidence in our system of voting if they know that, as a result of voter ID requirements, non-citizens will not be permitted to vote and distort electoral outcomes. But there's no indication that voters are concerned about illegal aliens' voting - or, again, that such voting occurs in any significant numbers.

Moreover, even assuming for the purposes of argument that such a law would give some voters a small confidence boost, is that worth at the same time deterring potential voters from the polls? A recent study taking a comprehensive look at county and state voter turnout rates during the 2004 presidential election found a correlation between burdensome and costly voter ID requirements and depressed voter turnout.

Why The Bill Should Raise Serious Civil Rights Concerns

The bill's only exception to the voter ID requirements applies to military personnel serving overseas. But what about other voters who would be disproportionately burdened by having to comply?

No exceptions are carved out for those who may find it especially difficult to procure current, valid identification - including the elderly, particularly those who are home-bound; those with physical disabilities; and American Indians on reservations, who are often unaccustomed to dealing with complex state bureaucracies.

Nor is there any provision for the poor, who tend to be less mobile, and thus to have greater difficulty procuring identification. That's especially troubling because some racial and ethnic groups, such as African Americans, tend to be disproportionately among the poor, and thus will be particularly burdened by the mandatory costs associated with the bill.

Nor, finally, does the bill offer any protection for those who will naturally have problems verifying their identity for the authorities, such as persons born outside of hospitals, in rural and isolated communities; persons born at home to midwives, who are often without birth certificates; and married women, who may encounter red tape if they have chosen to take their marital names.

In sum, voter identification laws erect unnecessary barriers that will make voter participation far more difficult for many, and a practical impossibility for some.

Voter Identification Laws Violate the Twenty-Fourth Amendment

The purpose of the poll tax provision of the Twenty-Fourth Amendment was to ensure that neither Congress nor any state passed a law conditioning the right to vote in federal elections on payment of any tax or fee. Literal poll taxes are a thing of the past, fortunately. But the Supreme Court, more recently, has recognized that burdensome requirements can be the equivalent of a poll tax, and thus can violate the Amendment.

For example, in 1965, in Harman v. Forssenius,. the Court struck down a Virginia law that required voters to pay a poll tax or, alternatively, file a certificate of residence (a sworn statement of continued residency). The Court reasoned that even though filing the certificate of residence could be done free of charge, the law as a whole amounted to an "onerous procedural requirement[] which effectively handicap[ped] exercise of the franchise."

Congress' voter ID bill is more burdensome, and more literally costly, than the sworn statement of residency - and thus would surely be struck down by the Court. After all, voters must pay significant fees to secure the underlying documents required to establish citizenship.

For example, the State Department issues passports at a standard rate of $97; for those who need fast service (to meet election dates or deadlines), an additional $60 rush fee is imposed. Birth certificates, on average, cost approximately $15 to process and an additional $15 to mail - in addition to those costs associated with travel to the relevant issuing agency.

Congress' bill does waive the cost of the state-issued identification required at the polls for those deemed "indigent." But it is silent with respect to these effectively mandatory underlying fees.

Moreover, forcing voters to declare their indigency is a stigmatizing and burdensome precondition on the right to vote. Like the certificate of residency the Court rejected in Harman, this "onerous procedural requirement" is unconstitutional - especially as it is not accompanied by clear rules or standards defining who would be eligible.

For all these reasons, the House bill is highly vulnerable to Twenty-Fourth Amendment attack in the courts - and rightly so.

Voter Identification Laws Violate the Fourteen Amendment's Equal Protection Clause

The House bill is unconstitutional under the Fourteenth Amendment's Equal Protection Clause, too. To see why, one need look no further than the Supreme Court's seminal 1966 poll tax ruling in Harper v. Virginia State Board of Elections. There, the Court held the right to vote could not be conditioned upon one's ability to pay a fee.

Several post-Harper rulings rely on the "strict scrutiny" standard; that is, they ask courts to determine if a particular regulation furthers a compelling state interest, and is narrowly tailored to do so. However, recent cases - such as 1992's Burdick v. Takushi -- have adopted a less demanding standard, aimed at giving states more flexibility in constructing voting regulations. This standard weighs the magnitude of the alleged injury and the rights at stake, against the state's justification for the burden imposed on those rights.

Regardless of the standard adopted by the Roberts Court, however, the result should be the same. As noted above, there is scant evidence that fraud is a massive problem - putting into question the government's asserted interest here. Moreover, even if the interest were to be deemed valid, the House bill is not an appropriate means of addressing it: There is little, if any, proof demonstrating the ability of voter identification laws to address alleged fraud, and such laws impose a clear burden on the fundamental right to vote.

Even under a balancing test, then the balance is clear: The heavy and unfairly-distributed burden on voting rights far outweighs the need to attempt to prevent fraud - already criminal under our laws - in this indirect way.

Protecting the Fundamental Right to Vote

Not only is the Federal Election Integrity Act of 2006 in tension with at least two constitutional amendments, it also likely violates the Voting Rights Act, which was recently renewed by Congress. Section 2 of the Voting Rights Act prohibits denial of the right to vote. And Section 5's retrogression provision bars certain jurisdictions from adopting voting changes that worsen the position of minority voters - as voter ID requirements surely do.

No wonder, then, that a number of courts have already struck down parallel state laws on various federal and state constitutional grounds. Most recently, in Lakes v. Perdue, a Georgia state court found that Georgia's voter ID law violated the state's constitution in that it impermissibly created new voter eligibility criteria. In Common Cause v. Billops, a federal district court found that Georgia's voter ID law constituted a poll tax and violated the Equal Protection Clause. Most recently, in Weinschenk v. State of Missouri, a state court determined that the Missouri voter ID law placed an "insurmountable" burden on the right to vote and thus, violated constitutionally protected rights. The court highlighted the cost of the paperwork associated with the law in its ruling.

In none of these cases were the state defendants able to offer any substantial proof that vote fraud was a problem of such a magnitude as to justify the substantial burden imposed on the right to vote. And there is no indication that if the House bill were passed, the federal government could do any better.

With Criminal Laws on the Books, We Don't Need Voter ID Laws Too

When eligible individuals register to vote in the U.S., they complete a registration form which generally contains a warning that false statements on the form could lead to prosecution. You attest that you are of age, a citizen and a resident of the jurisdiction.

These attestations -- along with a myriad of state and federal criminal laws that reach electoral fraud -- have long sufficed as effective safeguards to our political process. No compelling arguments have been advanced to justify revamping that system now. And as noted above, many constitutional, statutory and policy arguments counsel strongly against the adoption of a federal voter ID law.

Kristen Clarke-Avery is a civil rights attorney based in Washington, D.C. She has worked on a wide range of voting matters including the most-recent Voting Rights Act reauthorization effort.

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