By: Robert Bryson
This post will be the first in a five-part series examining “voter fraud,” its impact on elections, steps taken to curb it, and it will end with an analysis of Husted v. A. Philip Randolph Institute which is the Supreme Court case scheduled for arguments January 10, 2018 that will determine if Ohio can use voter inactivity to send confirmation notices to that voter under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002 (e.g. if Ohio can purge its voter lists).[1]
Part One will discuss: steps taken to curb voter fraud (such as voter identification laws), the development of these laws, and the current status of voting rights in the United States.
Development of Voter ID Laws
Voter ID laws and voter suppression has been going on in some form or another since the founding of the country. In the beginning, it was baked into the Constitution, only allowing land-owning white males to vote. Then literacy tests and poll taxes were used. Even when they achieved the right to vote, there was an ever-present threat of violence against women and minorities. But, slowly and painfully, the United States clawed its way to a freer and more equal society.
One of the landmark provisions of the Voter Rights Act of 1964 was to identify certain states as having a history of suppressing the vote of minorities and to grant the Department of Justice the authority to review and veto any law that impedes the right to vote. Unfortunately, that provision was struck down by the Supreme Court in the landmark decision Shelby County v. Holder (2013) 570 U.S. 2. Following Shelby, states began an earnest campaign to pass laws that suppressed the vote, currently taking the name of voter ID laws.
Voter Identification Laws
Voter identification, to varying degrees, require or encourage voters to present some sort of identification prior to voting. 32 states[2] have voter ID laws in some form or another. There are four “types” of voter ID laws:
- Photo ID required (strict);
- Photo ID requested (non-strict);
- Non-photo ID required (strict); and
- Non-photo ID requested (non-strict).[3]
In “strict” states the voter must present an ID prior to voting. If the voter is unable to produce an ID, the voter is given a provisional ballot and may return to the election official (usually within a couple days) to present their ID and have their vote counted. “Non-strict” states vary but in general voters without an ID can vote if: (1) they sign an affidavit; (2) a poll worker vouches for them; and (3) election workers verify the voter’s ID after the vote or the voter returns a mailed inquiry after the vote.
Flawed Premise, Flawed Arguments
Voter identification laws are designed to prevent “impersonation” fraud. Supporters cite a variety of inaccuracies including: deceased individuals on voter rolls,[4] fictional characters on voter rolls[5], and general inaccuracies on voter rolls[6]. In response, states began imposing laws designed to protect the integrity of the vote. The problem with these “protections” is that they disproportionately impact the disenfranchised: impoverished families, students, homeless individuals, and minorities – who would otherwise be lawfully permitted to vote.
You are probably noticing a theme – voter rolls are a mess. Yes, voter rolls are inaccurate, they contain names of deceased individuals, of “joke” registrations, and of people registered to vote in multiple districts. However, the names on voter rolls does not equate to the people who cast a ballot.
Consider, did you register to vote? Did you later change counties? Your name probably appears twice in the voter rolls, once in your old county and once in the new. You are the exact person that supporters of voter ID laws cite as an example of fraud. But just because you moved, doesn’t mean that you’re going to vote in both counties.
“You need an ID to drive, why not to vote?”
Yes, you do need a license to drive a car or fly on a plane. But, consider for a moment, that those are privileges – not rights. You must earn the right to drive, by passing a series of exams that prove you are competent. Flying on a plan is a privilege, that can be taken away by the government in an instant (have you ever been mistakenly added on the “no-fly” list because your name sounds similar to an alias of a suspected terrorist, yes that happens all the time.) We mistake daily privileges with “rights” all the time. Rights are expressly provided for in the Constitution and Amendments which means the government must have a compelling or necessary interest to interfere with that right.
For example, you have the right to free speech and assemble. That means you can wear what you want in public and say what you want in public. Children have the right to free speech, as do adults. The government may only infringe on that right in extreme scenarios. For instance, you aren’t allowed to incite a crowd to violence or assemble with the purpose of engaging in armed rebellion. Other than those narrow exceptions, your right to free speech is nearly unlimited.
Conversely, driving is never mentioned in the Constitution.[7] Children are not permitted to drive. Moreover, adults may drive only after they pass a series of tests substantiating their competence. Additionally, if you cannot maintain competence, the government revokes your right.
The difference between these two functions is this: in one, the burden is on the government to infringe on your activity, on the other, the burden is on you to prove that you are competent to engage in the activity.
Voting is a fundamental function of a democracy, it is a right – not a privilege. In a democracy, the basic fundamental freedoms should exist for everyone, and you should lose that right only in the most extreme of circumstances. No one should have to pass a literacy test, pay a poll tax, or prove that they are a “real American.”
“Getting a/an [photo] ID is easy, what’s the problem?”
Getting an ID is easy, for some people. But there are whole groups of individuals who are overlooked: the elderly, students, poor families, the homeless, and individuals with physical or mental handicaps.
Getting an ID can take hours and cost $20 or more to acquire. If you are a parent supporting your children, when do you have the time to spend a few hours at the DMV to (1) prove your ID and (2) spend the money to get an ID? What if you use public transportation, now it takes even more time to get to the DMV. Many DMVs require people to make appointments online, what if you don’t have access to the Internet or a computer? What if you are homeless? Where will they mail your ID, where will you get the money? How about students (many voter ID laws specifically exclude student IDs[8])? What about a retired individual who cannot drive?
These groups are all systematically excluded by voter ID laws. Does a homeless person lose the right to vote because he doesn’t have a mailing address? Do working parents and elderly individuals lose the right to vote because they don’t have a car or the time to get an ID?
No one should be required to earn their right to vote. Everyone should be allowed to exercise it (or not[9]).
“Illegal immigrants vote!”
Finally, illegal immigrants do not vote in substantial numbers (if at all) in elections – certainly not enough to justify drowning out legitimate voters. During the 2016 Presidential Election, then-Candidate Trump cited a 2014 peer-reviewed research paper published at Virginia’s Old Dominion University.[10] Trump stated that 14 percent of noncitizens (which includes legal immigrants) were registered to vote. He further argued that noncitizens undermine the vote and are what enabled Obama to win North Carolina.
However, Trump misrepresented the data. The study didn’t say that 14 percent of noncitizens were registered to vote. The 14 percent figure was the higher end of the paper’s confidence interval. In other words, there was a 97.5 percent change that the number of noncitizens registered to vote was actually lower.[11]
Moreover, the paper itself was heavily criticized by the scientific community for cherry picking events[12]. Finally, a few days after Trump cited the figure in a speech, one of the authors of the paper wrote a blog post countering Trump’s remarks.[13] But, you may ask, that is one study – surely others have found high rates of noncitizen voter fraud. Numerous studies have found 0 or close to 0 instances of noncitizen voter fraud.[14]
Concluding Thoughts
Voter ID laws undermine the most basic function of a democracy – voting. Voter ID laws prevent far more people who are entitled to vote from voting than they catch impersonation voter fraud. Rather than focusing our efforts on catching 0.00001 percent of offenders, we should encourage more people to vote. After all, if more people vote, then it gets even harder for that 0.00001 percent to sway an election.
[1] http://www.scotusblog.com/case-files/cases/husted-v-philip-randolph-institute/
[2] http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx
[3] According to the National Conference of State Legislatures:
Strict photo ID required: Georgia, Indiana, Kansas, Mississippi, Tennessee, Virginia, and Wisconsin.
Strict non-photo ID required: Arizona and Ohio.
Non-Strict photo ID required: Alabama, Florida, Idaho, Louisiana, Michigan, Rhode Island, South Dakota, and Texas.
Non-Strict non-photo ID required: Alaska, Arkansas, Colorado, Connecticut, Delaware, Hawaii, Kentucky, Missouri, Montana, New Hampshire, North Dakota, Oklahoma, South Carolina, Utah, and Washington.
No ID required to vote at ballot box: California, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Vermont, West Virginia, Wyoming, and Washington, D.C
[7] There is a right to free travel between the states but not a right to drive – you can walk across the border.
[9] http://www.pewresearch.org/fact-tank/2017/05/15/u-s-voter-turnout-trails-most-developed-countries/
[10] http://www.sciencedirect.com/science/article/pii/S0261379414000973
[11] https://fivethirtyeight.com/features/trump-noncitizen-voters/
[12] This is a heavily summarized version of the critiques, for a full analysis please review the findings here: https://cces.gov.harvard.edu/news/perils-cherry-picking-low-frequency-events-large-sample-surveys
[13] https://fs.wp.odu.edu/jrichman/2016/10/19/some-thoughts-on-non-citizen-voting/
[14] The Brenna Center for Justice at New York University School of Law is an excellent resource that collects dozens of studies, opinions, court rulings, and articles on civil rights. Below is a sampling of some of the findings. https://www.brennancenter.org/analysis/resources-voter-fraud-claims
Christopher Famighetti, Douglas Keith and Myrna Pérez, “Noncitizen Voting: The Missing Millions,” Brennan Center for Justice, 2017. The Brennan Center surveyed election officials from across 42 jurisdictions, who together oversaw the tabulation of 23.5 million votes in the 2016 general election. Their research found that in those jurisdictions, the officials referred only an estimated 30 incidents of suspected noncitizen voting for further investigation or prosecution. That comes to a noncitizen voting rate of 0.0001 percent among those jurisdictions.
David Cottrell, Michael C. Herron and Sean J. Westwood, “Evaluating Donald Trump’s Allegations of Voter Fraud in the 2016 Presidential Election,” 2016. A working paper by three scholars at Dartmouth College concluded that there was no “evidence that there was a widespread, anti-Trump fraud effort that relied on either” noncitizen voting or impersonation fraud on behalf of deceased persons.
Hans Von Spakovsky, “The Threat of Non-Citizen Voting,” 2008, a report citing examples of possible non-citizen voter registration, primarily based on jury lists. The report suggests that up to 30,000 noncitizens were present on California’s registration rolls in 1998 based on their answers to jury summons. Professor Minnite noted, after the report was released, that a California investigation uncovered little if any evidence of non-citizen voting.
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