How efforts to ID voting problems have become a partisan mess.
With a meltdown in our election system in 2000 and a near meltdown again in 2004, one might think states would use the off-season to get their electoral rules in order. Many of the legal problems in 2004 emerged from areas of uncertainty in the law. (Remember the disputes before the November 2004 election over whether officials would count "provisional ballots" cast in the wrong precinct?) It seems to be in everyone's interest for states to enact clear and fair rules so problems do not arise again during the 2006 midterm elections—or worse, during the 2008 presidential election. Make the rules clear and fair now, so the armies of lawyers won't have much ammunition even in close elections.
Unfortunately, election reform is becoming mired in partisan politics, and the resulting rules changes are increasing, rather than decreasing, the chances of future litigation and election meltdown. Case in point: voter-identification laws.
In looking at what is on the agenda in Republican-controlled legislatures, you'd think that voter fraud is rampant: Ohio, Indiana, Wisconsin, Pennsylvania, Mississippi. In each of these states, Republicans have passed or proposed legislation requiring voters to show identification at the polls or risk casting a vote that will not count. In Arizona, Republicans backed an initiative denying public benefits to illegal immigrants that also included a voter-identification requirement.
Republicans defend voter-identification laws as necessary to combat voter fraud. But Democrats and civil rights organizations see these laws as a way of gaining partisan advantage—because it's the poor who will have a more difficult time securing voter identification. Poor people tend to drive less (meaning they won't have a driver's license, which is the most common form of ID), and they may not have the money to secure certified copies of documents, such as the birth certificates necessary to obtain a state-issued voter identification. The poor also happen to be more likely to vote Democratic.
More important, it's not clear what the nonpartisan object of this exercise would be. Beyond a few isolated instances and anecdotes, there is precious little evidence of the kind of voter fraud a state voter ID card requirement would deter. I am aware of no studies finding evidence of any kind of systematic or serious problems with voters casting ballots in someone else's name, or with voters registering and actually voting using fictitious names. There is a great deal of registration fraud—such as when "Mickey Mouse" registers to vote. That problem is an artifact of paying bounty hunters to collect completed registration forms; some of those mercenaries will falsify information on registration forms. But, invariably, Mickey declines to vote on Election Day, so where is the fraud?
When voter fraud does occur, it tends to be in ways that state voter-identification cards can't catch. There is, for instance, evidence of folks who vote in two states, such as snowbirds who vote in Florida and New York; or people who vote in neighboring states, such as Kansas and Missouri. But voter identification is not checked across states, so how does voter ID help? There is also plenty of evidence of absentee-ballot fraud. Consider the facts of United States v. McCranie, a case in which supporters of opposing candidates for sheriff in Dodge County, Ga., "actually set up tables inside the courthouse at opposite ends of the hall, where supporters on both sides openly bid against each other to buy absentee votes." But most voter-identification laws do not require proof of identity when casting an absentee ballot, either.
Georgia is actually the best example of the increased partisanship and litigation that results when election reform is enacted on a partisan basis. There, the Republican legislature passed a voter-identification law in the name of fraud prevention over the loud protests of Democrats—some of whom noted that the law actually made it simpler to cast an absentee ballot and thus hardly succeeded as a means of combating fraud. Because Georgia is a jurisdiction covered by Section 5 of the Voting Rights Act, it must seek approval from the Department of Justice to put its law into effect, and to gain that approval it had to prove that the law would have no discriminatory effect on minority voters.
Career attorneys at the Justice Department concluded that the Georgia ID law was discriminatory and should not be approved, a decision overruled by DOJ political appointees (a fact the public learned when the internal DOJ memo was leaked to the Washington Post). The DOJ careerists had found that Georgia offered no proof of a problem with fraud and, as the Century Foundation summarized, the careerists' memo concluded that the law would hurt minority voters.
Unsurprisingly, civil rights organizations challenged the Georgia voter-identification law, and a federal district court granted a preliminary injunction against the law, finding that the costs associated with obtaining voter identification (even with a fee waiver) made the ID requirement a de facto unconstitutional poll tax. The court also found no evidence of voter fraud in Georgia to sustain the law, except in the area of absentee ballots—where the law actually made voting without identification easier.
Undeterred, the Georgia legislature passed a new version of the voter-identification law, which its supporters say eases the ability of the poor to obtain a voter ID. The new law awaits DOJ approval and, if approved, further scrutiny by the district court, where plaintiffs still contend that the law is discriminatory.
Richard L. Hasen is a professor of law and political science at the U.C. Irvine School of Law and author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. He also writes the Election Law Blog.