Originally published in Politico June 14, 2011.
With ballooning deficits and
substantial unemployment among the urgent problems confronting the states, many
state legislatures spent their first
days of the 2011 session
way that voters prove their identity at the polls.
voter ID laws in 2011.
The most stringent preclude citizens from voting a valid ballot
unless they show specific documents. Opinion polls reveal that the public
supports this idea. But those behind this effort have forgotten both
their priorities and their obligation to safeguard the vote -- the
most fundamental of constitutional rights -- not just for most U.S.
citizens but for all.
The public supports restrictive
ID rules because most Americans have ID. We think nothing of showing
ID for conveniences, so we think nothing of showing it as a condition
for a basic constitutional right. Because we have the correct ID, and
our friends have the correct ID, we think every citizen has the correct
The facts, however, say different.
Most of these recent laws demand current, government-issued photo ID
with an expiration date. Yet 11 percent of voting-age citizens do not
have this sort of ID, according to reliable
The estimated impact on actual voters ranges from 1 percent to 12 percent,
depending on the state. Even using the most conservative figure,
this amounts to more than 1.6 million voters nationwide.
Some are hurt more than others
by this. Roughly 18
percent of seniors
don't have the right ID. Only 5 percent of Anglo voters but
at least 10 percent of African-American voters and 11 percent of Latino
have the right ID.
These are survey results.
Other measures are less reliable. Comparing
census results to Department of Motor
to see who has ID overlooks expired licenses and people who move out
of state. Comparing
voter turnout to
see the effect of these new rules -- looking at Georgia and Indiana
from 2004 to 2008, for example -- neglects other factors, including
national mood, weather and a state's
new battleground status
in a contested presidential campaign with a minority candidate at the
top of the ticket.
Want to know who doesn't
have the right ID? Ask 'em.
The results show that there
are more such people than you think. Real citizens who go to school, take the bus to work,
care for family, or live in a seniors' community. Real citizens born with disabilities or recovering
from natural or economic disasters. Real
veterans and real soldiers' families. The right to vote in American
elections is for these Americans, too.
For those without the right
ID, there's an extra catch: You usually need ID to get ID. Negotiating
maze is time-consuming.
It also costs money. Even if the new ID cards are free, it's
not free to obtain the underlying required documentation. States
may pledge to bring ID to all those without -- but in tight budgetary
times, these are expensive commitments that no state has truly fulfilled.
It is true that you need ID
to buy Sudafed or rent a car -- and deeply beside the point.
No American has died for the right to buy decongestants. In a country
the people, are
in charge, voting is different. For those without proper ID,
the new laws strike at the very heart of citizenship.
Moreover, they burden the franchise
without good reason. ID rules supposedly target voter fraud.
To be clear: Some
voter fraud exists.
Insiders do sometimes stuff ballot boxes; votes are sometimes bought;
absentee ballots sometimes manipulated.
Most restrictive ID rules stop
none of that. They prevent only one thing: people pretending to
be someone else at the polls.
Some protest that evidence
of this fraud is rare because it is difficult to prosecute. But
there aren't even credible allegations of a wave of fraud that ID
requirements can stop. There are far more reported UFO sightings than reports of impersonation at the
Impersonation leaves a paper
trail: signatures on poll books. Sign in as someone else, and
a call to the real voter uncovers the crime. For the past 10 years, plenty of news outlets have sought such reports. If
there were a big problem, the phones should have been ringing off the
Instead, there has been barely
a whisper. In a 2006
Supreme Court case,
photo ID proponents brought out the fraud best-in-show: Since 2000, nine suspected votes -- perhaps impersonation, perhaps
not -- that required ID could have stopped. During the same period, 400 million votes
were cast in general
elections alone. That's an alleged fraud rate of 0.000002 percent.
Now, some would respond that
elections are decided by only one vote -- and I agree. Which
is why restrictive ID rules make no sense. Keeping perhaps 2 percent
of eligible citizens from the polls to save 0.000002 percent of the
votes is a strange solution. It's like amputating a foot to
cure a hangnail.
Others say that requiring ID
may not stop much fraud, but it is necessary to keep Americans confident that their
votes are secure. It turns out, though, that there's little
evidence that ID
rules bolster voter confidence. If you believe elections are stolen,
you'll believe it -- no matter what ID you have to show at the polls.
states give voters
options to prove their identity, preserving security without turning
away eligible Americans. Those with photo ID can show it.
Those without can show an official government document or a utility
bill, or sign a legal affidavit matched to their registration forms,
which are themselves compared with Social Security records. These
are working safeguards, more than sufficient to prevent people from
showing up at the polls pretending to be someone else.
There are still many real problems confronting our election process.
These problems have available bipartisan solutions. Restrictive ID laws,
by contrast, look like operatives' gamesmanship. They are expensive distractions that U.S. democracy --
democracy for all -- just can't afford.
Justin Levitt is a constitutional law and election law professor at Loyola Law School, Los Angeles.