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June 16, 2011

The real victims of election ID laws

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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 attempting to restrictthe way that voters prove their identity at the polls.

Five states passed 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 ID.

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 studies. 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 voters don't have the right ID.

These are survey results. Other measures are less reliable. Comparing census results to Department of Motor Vehicle records 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 that bureaucratic 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 where we, 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.

Impersonating someone is an immensely inefficient way to steal an election, which may explain why it is extraordinarily rare: Americans are more likely to be struck and killed by lightning.

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 polls.

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 hook.

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.

Forty-four 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.