Voter ID legislation, requiring all voters to produce photo ID each time they vote, legislation will have a profound impact on our most fundamental right as Americans, posing significant questions as to who will be allowed to exercise their right to vote – and who will not.
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The Dangerous Impact of Proposed Voter ID Laws
By Karen C. Buck
“The vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men.”
— Lyndon B. Johnson
The Pennsylvania House has passed and the Senate is poised to vote on HB 934, amending state election law. Commonly known as the “Voter ID legislation,” requiring all voters to produce photo ID each time they vote, this legislation will have a profound impact on our most fundamental right as Americans, posing significant questions as to who will be allowed to exercise their right to vote — and who will not.
WHAT THE LAW PROVIDES
HB 934 in its current form requires all voters to produce “proof of identification” each time they vote in any election. Proof of ID is currently defined as unexpired photo identification issued by the U.S. government, the commonwealth, an accredited Pennsylvania public or private institution of higher learning, or a Pennsylvania long-term care facility.
Recent amendments to the bill provide narrow exceptions, including driver’s licenses expired within the past year, absentee ballots for uniformed and overseas citizens and alternative ballots for residents of long-term care facilities — but only those assigned to an inaccessible polling place would be relieved of the photo ID requirement.
If you don’t have photo ID, you must file a “provisional ballot,” which will not be counted at all unless it meets a number of requirements, including providing to the county board of elections, within six days, affirmation of identity, indigency and/or an original or copy of your photo ID.
EVERYONE HAS ONE, DON’T THEY?
Proponents contend that HB 934 would not pose a major inconvenience to voters, since most adults carry one form of photo ID or another. But a great many Americans do not have photo ID — approximately 11 percent of all Americans. The Brennan Center for Justice, in “Citizens Without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship and Photo Identification” (2006), estimates that 33 million Americans do not have photo ID. Seniors, the disabled, minorities, youth and women are disproportionately represented, including as many as 18 percent of American citizens age 65 and above — more than 6 million seniors — and approximately 25 percent of African-Americans (compared to 8 percent of non-minority Americans).
While it would appear easy to obtain photo ID for those of us who have driver’s licenses or passports, those who do not must overcome a number of financial and other obstacles, particularly arduous for those who are elderly, disabled, low-income or live in rural areas. What seems a simple process for those of us who have the luxury of a car, easy access to public transportation, and are able-bodied and economically secure, is a laborious task for many of our fellow citizens.
Many voters would be unable to produce the documents necessary to obtain a new state ID. In the absence of a current driver’s license or state photo ID, one must produce two proofs of residency (tax records, lease, mortgage, W-2 forms, current weapons permit or utility bills), a Social Security card, and either a current passport or birth certificate with a raised seal (and if your name has been changed, you must provide documentation that connects the names, such as an original marriage certificate, divorce decree or court order). Voter ID requirements affect older voters profoundly, including those who no longer drive and do not need licenses; do not now travel internationally or never did and have no passport; or have difficulty obtaining birth certificates from many decades ago or were never provided birth certificates (for example, Southern-born African-Americans or Native Americans who were not allowed in some white hospitals, and those who were born at home in decades past prior to birth certificate filing requirements). Moreover, although included in the list of acceptable photo ID, it appears that most “care facilities,” including nursing homes, do not issue such ID to their residents.
Many individuals without ID may be uncertain about how to go about obtaining the underlying documentation, and many who live on low, fixed incomes will find the costs associated with these documents unduly burdensome. The costs have been likened by many to a “poll tax,” outlawed over four decades ago by the Supreme Court in Harper v. Virginia Board of Elections (a state “violates the Equal Protection Clause of the 14th Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.”).
Thousands of voters who currently have no ID and do not drive would also need to find transportation to the DMV in their county to get a new ID card, despite any disabilities, frailties, health, mobility or financial challenges they might have. This will be especially difficult for seniors, disabled and low-income voters and those living in rural counties where they must travel dozens of miles and no public transportation options are available.
Indeed, those who are most likely not to have ID are those who are least able to get it and least likely to be equipped to deal with this added obstacle to the polls. Even with investment in strong educational campaigns, many voters will not know of new requirements when they show up at the polls.
While photo ID may be required for a great many activities, such as jumping on a plane, renting a video or even buying a case of beer, these activities cannot be equated with a fundamental constitutional right guaranteed to every American citizen. Photo ID, showing one’s “papers,” is not required to be an American. At least not yet.
WHY REQUIRE PHOTO ID?
Voter ID restrictions address only voter impersonation fraud at the polls: One individual impersonates another. Is this a pervasive problem? In 2007, New York University School of Law’s Brennan Center released “The Truth About Voter Fraud,” the most extensive analysis of voter fraud claims to date, finding that individual voter fraud targeted by legislative efforts such as voter ID “is exceedingly rare; one is more likely to be struck by lightning.”
The Voter ID legislation is opposed by the County Commissioners Association of Pennsylvania, the bipartisan organization representing all county commissioners across the commonwealth, who serve both as election boards under Pennsylvania law and oversee elections. In testimony to the House State Government Committee in March 2011, CCAP found no evidence of voter impersonation fraud, substantiated by a search of case records and anecdotal information from the counties. In their words, it is “a solution to a problem that doesn’t exist.”
Unlike many other states, current Pennsylvania law already has a number of safeguards in place to protect the integrity of our votes. Pennsylvania law requires voters to show valid ID the first time they vote at a polling place (which may be a photo or nonphoto ID), a voter’s signature at the time of voting and comparison to that in the register, and announcement of the voter’s name so it may be heard by all members of the election board and all watchers present in the polling place. Additionally, Pennsylvania’s poll books are directly cross-checked against Department of Health reported deaths, and the counties do follow up on any where there is a match against a registration record. A person attempting to vote under another’s name in Pennsylvania would have to find a currently registered individual who had voted in the polling place before, pose as that person at the polls by duplicating his or her signature, successfully forge the person’s signature while looking at it upside down, reasonably match the identifying information in the book, and be sure that the individual he or she is impersonating does not show up to vote also — and that no neighbor, colleague or acquaintance of the voter is at the polls at the time.
At minimum, to pass constitutional scrutiny, voter ID legislation must also include provisions to provide free state-issued IDs, universal access to acquiring IDs, and a comprehensive public education/outreach campaign to inform voters about new requirements. The Pennsylvania Budget and Policy Center has reported that HB 934 will cost at least $11 million to implement in the first year alone. Expenses include statewide public education efforts, training and oversight of poll workers across the commonwealth, provision of photo ID cards, and additional efforts to provide, receive and review provisional ballots, absentee ballots and alternative ballots.
State photo ID laws also remain vulnerable to constitutional attack. In 2008, a divided U.S. Supreme Court in Crawford v. Marion County Election Board upheld Indiana’s photo ID law against a broad attack to its constitutionality, but also cautioned that restrictive voting ID laws are not to burden specific groups of citizens. The court indicated that more compelling evidence of such burdens might have justified striking Indiana’s ID laws and specifically left open the possibility of lawsuits against ID laws that impair particular groups and individual citizens such as older voters, poor voters, the homeless and students. The court also did not eliminate the possibility of constitutional challenge to ID laws that were more burdensome than those at issue in Crawford , which, among other things, included an alternate voting method for elders.
Our work at SeniorLAW Center is protecting the rights of older Pennsylvanians. We serve 8,000-10,000 older Pennsylvanians annually with our many programs and services, including seniors in all of Pennsylvania’s 67 counties through our statewide legal HelpLine, to save homes, provide protection from abuse, fraud and exploitation, and promote access to safe, healthy lives of independence and dignity. We focus on the rights of those who came before us, who fought not only our wars, but the battle for civil and voting rights. Voting is indeed a “powerful instrument” for fighting injustice and a hallmark of our democracy. Let’s protect the right to vote, of our elders, and of all voters, not place unnecessary obstacles in their path. •
Karen C. Buck is the executive director of SeniorLAW Center, a nonprofit public interest law organization that protects the rights of older Pennsylvanians through legal representation, education and advocacy.
“Reprinted with permission from the 1/23/2012 issue of The Legal Intelligencer © 2012 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.”