A long-time federal prosecutor once told me that as long as
elections put people into positions where they can make decisions
about how much the government will spend, who will receive the
money, and how the government will exercise its power, elections
will be important enough to tempt some individuals to steal them.
As the Supreme Court recognized when it upheld the
constitutionality of Indiana's voter identification law in 2008,
flagrant examples of voter fraud "have been documented throughout
this Nation's history by respected historians and journalists."
Those examples "demonstrate that not only is the risk of voter
fraud real but that it could affect the outcome of a close
The United States has one of the most decentralized systems of
election administration for its national elections of any
democracy. Unlike many other countries, we do not have a central
government agency administering our federal elections. This is in
accord with the Constitution, which reserves to the states the
exclusive authority for most election decisions, including voter
qualifications, except that Congress may alter "[t]he Times, Places
and Manner of holding Elections" for Congress. Even the relatively
new U.S. Election Assistance Commission, created in 2002, does not
have the authority to "issue any rule, promulgate any regulation,
or take any other action which imposes any requirement on any State
or unit of local government." It can only recommend "best
practices" in election administration to the states, an interesting
charge given that most of the employees of this federal agency (and
some of the commissioners) have absolutely no experience in
actually administering elections. The states are still the chief
administrators of our elections, although Congress has passed
various federal laws in recent decades regulating election
procedures, including the National Voter Registration Act of 1993
(NVRA) and the Help America Vote Act of 2002 (HAVA).
In order to have an election process in which we can be
confident that everyone who is eligible gets to vote, the vote is
counted, and the vote is not diluted by fraudulent votes, we have
to have security and integrity throughout the entire process, from
voter registration to the casting of the actual votes and the
counting of ballots. Unfortunately, because of various problems
with election laws and procedures in many states, we cannot
currently ensure that such security is in place. This is
particularly true because of the general lack of verification by
some states of the authenticity of both basic voter eligibility at
registration, including citizenship, and the identity of voters who
show up at the polls to vote.
State legislators can take several steps to safeguard America's
election system and to improve the integrity of the election
process. Based on my experience as a local county election official
administering voting registration and elections in the largest
county in Georgia; as a career lawyer in the Civil Rights Division
of the U.S. Department of Justice enforcing federal voting rights
laws like the NVRA and HAVA; and as a member of the Board of
Advisors of the U.S. Election Assistance Commission, I would
recommend the following legislation or regulations. While there are
some steps that only Congress and the federal government can take,
these are improvements to voter registration and voting procedures
that states can implement.
- Require all voters to present photographic identification,
issued by the federal, state, or local government, when they vote
at their polling place, or to send copies of such identification
when submitting an absentee ballot. Any individual who does not
have identification should be entitled to receive it free from
state authorities. The vast majority of eligible voters already
have such identification. Both academic studies and election results
show that identification requirements do not depress the turnout of
voters, including eligible minority voters. In addition, the
vast majority of voters of all parties and all races and ethnic
backgrounds support such a requirement and it increases public
confidence in the integrity of elections. For states that are not
covered by Section 5 of the Voting Rights Act, Indiana's voter
identification law provides a good model for states to follow.
Although it is considered the strictest identification law in the
country, the constitutionality of the law has been upheld by six
justices of the U.S. Supreme Court, a fact that will make it
much more difficult for groups opposed to such a law to succeed in
For states covered under Section 5 of the Voting Rights
Act, Georgia's voter identification law provides a good model.
Not only was Georgia's law precleared without objection by the U.S.
Department of Justice, it has also been upheld in federal court as
both constitutional and not a violation of the Voting Rights Act.
That will make a law modeled on Georgia's law much harder to oppose
successfully in litigation by groups opposed to voter
identification requirements or a U.S. Department of Justice led by
ideological partisans opposed to voter identification requirements
from a public policy perspective.
- Require all individuals who register to vote to provide
documentation establishing that they are United States
citizens. Individuals who are not U.S. citizens can easily
register and vote without detection. Federal law and all fifty
states provide that only U.S. citizens may vote in federal and
state elections, although some local jurisdictions may allow
noncitizens to vote in local elections. States have an interest in
preventing dilution of the votes of their citizens at the state
level and must maintain citizen-only voting rolls for federal
elections. However, only two states have mandated that voters
provide proof of citizenship, Arizona in 2004 through the
initiative process, and the Georgia legislature in 2009. Arizona's
law provides a good model because not only did the U.S. Justice
Department preclear Arizona's law without objection (Arizona is
covered by Section 5 of the Voting Rights Act), but it has been
upheld in federal court as not violating the Constitution or the
Voting Rights Act.
- Require state and local election officials to verify the
accuracy of new voter registration information against other
available state and federal databases. Section 303 of HAVA
requires states to coordinate their voter registration lists with
"other agency databases" and to "verify the accuracy of the
information provided on applications for voter registration."
However, some election officials are not complying with the federal
law and are not verifying new voter registration information
against other available databases such as Department of Motor
Vehicles (DMV) driver's license records and Social Security
Administration records. During the 2008 election, for example, the
Ohio Secretary of State refused to investigate the accuracy of
200,000 new voter registration applications whose information did
not match information in other state databases. Although it is
the duty of the U.S. Justice Department to enforce compliance with
this HAVA requirement, it refused to do so in Ohio and is unlikely
to do so in the future because of the views of both the
Department's current leadership and its liberal career lawyers
towards such requirements. Only by implementing this requirement as
a state law can legislators ensure that their state election
officials will follow this commonsense requirement.
- Require an individual who registers by mail to vote in
person the first time they vote. States are specifically
allowed to implement such a requirement by Section 6 of the NVRA
although it cannot apply to any voter entitled to vote by absentee
ballot or other than in person under the Uniformed and Overseas
Citizens Absentee Voting Act (UOCAVA) or the Voting Accessibility
of the Elderly and Handicapped Act. This generally includes
disabled voters and those over age 65, along with military and
- Require all individuals who register to vote through the use
of mail-in forms, whether they are mailed back to election
officials or hand-delivered by the individual or third-party
organizations, to comply with the applicable HAVA provision.
HAVA requires persons who register to vote by mail who have not
previously voted in a federal election to provide a copy of certain
identification documents when they register or the first time they
vote. Unfortunately, some states have
interpreted this federal requirement to apply only to voter
registration forms received through the mail and not to such forms
delivered through other means.
- Require all third-party organizations (like ACORN) that
conduct voter registration drives to put the name of their
organization and the volunteer or employee handling each
registration on the voter registration form and require all
completed forms to be returned to election officials by such
organizations within ten days of the date the forms are executed by
the voter. These measures will allow election officials to
identify which organization and individual handled voter
registration forms that are found to be incomplete or fraudulent as
well as ensuring that completed registration forms are provided to
election officials on a timely basis so they can be properly
processed before the state's pre-election registration
- Facilitate voting by overseas members of the military by
requiring that all absentee ballots being sent to UOCAVA voters be
mailed at least 45 days prior to the election deadline or
alternatively by express mail or electronic means so the ballots
will be received by voters in time to be returned. The long
transit times for overseas mail have led to the disfranchisement of
many military personnel stationed overseas, particularly those in
combat zones in Afghanistan and Iraq. Most states mail out absentee
ballots 30 or fewer days before an election, which is not
sufficient time for them to be received and returned. States should
also allow absentee ballot request forms to be sent to election
officials by facsimile or as a scanned attachment to an email.
- Require all state courts to notify election officials when
individuals whose names are drawn from the registration rolls are
excused from jury duty because they claim they are not U.S.
citizens or no longer live in the jurisdiction. Such a
requirement would be similar to the provision contained in Section
8(g) of the NVRA that requires United States attorneys to notify
state election officials whenever an individual is convicted of a
felony in a federal district court. This allows election officials
to remove that individual from voter registration rolls if felons
are not entitled to vote in that particular state. Such a
requirement for noncitizen notification will allow local election
officials to remove ineligible voters and refer them to state
authorities for possible prosecution. Completion of a jury
questionnaire by an individual stating that he no long resides in
the jurisdiction would allow local election officials to
immediately delete such voters from the rolls, avoiding having to
keep them on the inactive list for years. State and local tax
officials should also notify election officials when they receive
similar information. Running data comparisons between voter
registration addresses and property tax rolls is also recommended
to detect individuals who are illegally registering at commercial
- Require the state to enter into agreements with other
states, especially neighboring states, to compare voter
registration lists to find voters who are registered in more than
one state. There have been a number of reports comparing voter
registration lists among different states showing individuals
registered in multiple states. Because there is no
national voter registration list, it is relatively easy for
individuals to register in more than one state without detection.
Regional agreements would be a good start to detecting (and
deterring) double registration and possible double voting.
One final warning to state legislators: Pass resolutions urging
your congressional representatives to oppose legislation that will
impose further federal requirements on how you conduct your
elections or would give the U.S. Election Assistance Commission the
power to regulate elections. There are many proponents in
Washington who would like to see a complete federal takeover of the
administration of elections. From overruling state laws barring
felons from voting, to requiring states to implement same day (or
election day) registration, these groups want to impose such
federal mandates on all of the states.
One of the current proposals that is gathering momentum is
"universal registration," a concept that would force states to
automatically register individuals who are contained in driver's
license records, tax lists, public assistance and welfare rolls,
and other such databases. This concept is being pushed based on the
fallacy that large numbers of individuals were unable to vote in
the 2008 election because of voter registration problems. This
claim is supported by almost no evidence other than an academic
survey that used very questionable methodologies, and did not
determine whether individuals who reported not voting due to
"registration" problems ever attempted to register or were even
eligible to register or vote. The contrary evidence is
much more powerful: The Census Bureau just reported that there was
an increase of 4 million registered voters in 2008 from the 2004
election and voter turnout increased by 5 million voters.
Driver's license, public assistance, and tax rolls all contain
individuals who are not citizens, are mentally incompetent or are
felons, making them ineligible to vote under most state laws. Yet
universal registration would automatically register such ineligible
individuals and give them the ability to vote. Many people own
property in more one location or pay taxes to more than one
political jurisdiction. Universal registration would automatically
register them in more than one location, allowing them to vote more
than once. Universal registration would thus automate voter
registration fraud and decrease the security and integrity of our
election process to deal with a nonexistent problem.
This push for universal registration is especially ironic given
that many of its proponents are the same liberal groups that have
filed lawsuits, some successfully, trying to stop states from
verifying the accuracy of new voter registration information by
running data matches with other state records such as driver's
license databases. They claim that those records are too inaccurate
and cause large numbers of mismatches, disenfranchising voters.
Yet nowthese same groups claim those records are accurate enough to
be a source of automatic voter registration. These views are
totally inconsistent. State legislators should oppose any attempt
to force states to implement universal registration unless it is
done in such a way as to verify the identity, residence,
eligibility, and citizenship status of each registrant, and will
avoid duplicate registrations in more than one location. That will
be the only way to ensure the accuracy of voter registration
These are all relatively simple steps that can be taken by state
legislatures, but they are very important to protecting our
democracy from errors and intentional fraud that can affect the
integrity and security of our election process.
is a Legal Scholar in the Center
for Legal and Judicial Studies at The Heritage Foundation. He is a
former Commissioner on the Federal Election Commission and former
Counsel to the Assistant Attorney General for Civil Rights at the
U.S. Department of Justice.
Crawford v. Marion County Election Board, 128
S.Ct. 1610, 1619 (2008).
Const. art. I, §4, cl. 1. Congress has less power to regulate
the election for President, being limited to determining the "Time"
of choosing electors and the "Day" when they give their votes.
Id. art. II, §1, cl. 4. By subsequent constitutional
amendments, states may not discriminate on the basis of race,
ethnicity, gender and age over 18, but Congress still may not
interfere with state laws disqualifying noncitizens and certain
felons from voting, despite the claims of many activists. See
generally id. amend. XIV, § 2.
Voter identification can prevent impersonation
fraud, voting under fictitious names, voting by illegal aliens, and
voting by individuals registered in more than one state. See
Hans A. von Spakovsky, Stolen Identities, Stolen Votes: A Case
Study in Voter Impersonation, Heritage Foundation Legal
Memorandum No. 22, March 10, 2008, available at http://www.heritage.org
During litigation over Indiana's and Georgia's
voter identification laws, the plaintiffs were unable to produce a
single individual who would be unable to vote because of the
identification requirements. See alsoRobert Pastor, et al.,
Voter IDs Are Not the Problem: A Survey of Three States (2008),
available at http://www.american.edu/ia/cdem/csae/pdfs/
csae080109.pdf. This survey found that across three
states, Mississippi, Maryland and Indiana, less than 1 percent of
all voters did not have the required identification, and the number
was even smaller (only 0.3 percent) in Indiana, the state with the
strictest identification rules. Id at 9, 15.
See David B. Muhlhausen and Keri Weber
Sikich, New Analysis Shows Voter Identification Laws Do Not
Reduce Turnout, Heritage Foundation Center for Data Analysis
Report No. 07-04, Sept. 10, 2007, available at http://www.heritage.org/research/legalissues/cda07-04.cfm;
Hans A. von Spakovsky, Voter ID Was a Success in November,
Wall St. J., Jan. 30, 2009, available at http://online.wsj.com/article/SB123327839569631609.html.
Robert Pastor, et al., supra note 6, at
Section 5 requires certain covered states to
submit any changes in voting procedures either to the Justice
Department or to federal court in Washington, D.C., for
preclearance before they can take effect. 42 U.S.C. §
Code § 3-5-2-40.5 (2009).
Crawford, 128 S.Ct. 1616. Indeed,
emotional opponents of voter ID should reflect instead on the
simple logic of Justice Stevens's opinion for the majority in
Ga. Code Ann. § 21-2-417.
Common Cause v. Billups, 554 F.3d 1340 (11th
Cir. 2009), cert. denied (June 8, 2009).
Gonzalez v. Arizona, No. 06-1268 (D. Ariz.
August 20, 2008). The case is on appeal to the Ninth Circuit Court
of Appeals. Arizona's law requires both proof of citizenship and
identification at the polling place. SeeAriz. Rev. Stat.
§§ 16-166(F), 579(A). Georgia's legislation is House Bill
139, amending Ga. Code Ann. § 21-2-6, and it has not yet been
reviewed by the Justice Department.
The Secretary of State was sued by the Ohio
Republican Party under HAVA; however, the Supreme Court vacated a
stay that had been issued by the Sixth Circuit Court of Appeals
directing her to comply with the law because the Supreme Court held
that a private party was not "likely to prevail on the question
whether Congress has authorized...a private litigant" to bring an
action under HAVA. Brunner v. Ohio Republican Party, 555 U.S. ___
(2008). This leaves it up to the Justice Department to enforce this
particular requirement of HAVA.
42 U.S.C. § 1973gg-4(c).
See id. § 1973ff-1 and
42 U.S.C. § 15483(b). There are certain
exceptions, including for individuals entitled to vote under the
Uniformed and Overseas Citizens Absentee Voting Act.
See Press Release, Kentucky Secretary
of State, Kentucky Blazes Path in New Voter Fraud Prevention
Technique (April 24, 2006), available at http://sos.ky.gov/secdesk/mediacenter/pressreleases/article41.htm;
Russ Buettner, City Mulls Action Against Two-Timing Voters,
N.Y. Daily News, Aug. 24, 2004, available at http://www.nydailynews.com/archives/news/2004/
60,000 Could Be on File to Vote in Both Carolinas, The
State, Oct. 25, 2004, at A1.
It is human nature to make up excuses for
failing to vote, but such excuses must be tested by social
scientists if they are really interested in finding the truth
rather than pushing a nationalization agenda.
This article is based on a presentation
made at the annual meeting of the American Legislative Exchange
Council in Atlanta, Georgia, on July 17, 2009, on a panel with John
Fund of the Wall Street Journal and Bob Williams of the
Evergreen Freedom Foundation. Many of these legislative
recommendations first appeared in an article by the author under
the name Publius. See Publius, Securing the Integrity of
American Elections: The Need for Change, 9 Tex. Rev. L. &
Pol. 227 (2005).