March 23, 2009

March 23, 2009 | Testimony on Legal Issues

Requiring Identification by Voters

Testimony Before the Texas Senate

Delivered March 10, 2009

I appreciate the invitation to be here today to discuss the importance of states such as Texas requiring individuals to authenticate their identity at the polls through photo and other forms of identification.

By way of background, I have extensive experience in voting matters, including both the administration of elections and the enforcement of federal voting rights laws. Prior to becoming a Legal Scholar at the Heritage Foundation, I was a member for two years of the Federal Election Commission. I spent four years at the Department of Justice as a career lawyer, including as Counsel to the Assistant Attorney General for Civil Rights. I also spent five years in Atlanta, Georgia, on the Fulton County Board of Registration and Elections, which is responsible for administering elections in the largest county in Georgia, a county that is almost half African-American. I have published extensively on election and voting issues, including on the subject of voter ID.

Guaranteeing the integrity of elections requires having security throughout the entire election process, from voter registration to the casting of votes to the counting of ballots at the end of the day when the polls have closed. For example, jurisdictions that use paper ballots seal their ballot boxes when all of the ballots have been deposited, and election officials have step-by-step procedures for securing election ballots and other materials throughout the election process.

I doubt any you think that it would be a good idea for a county to allow world wide Internet access to the computer it uses in its election headquarters to tabulate ballots and count votes - we are today a computer-literate generation and you understand that allowing that kind of outside access to the software used for counting votes would imperil the integrity of the election.

Requiring voters to authenticate their identity at the polling place is part and parcel of the same kind of security necessary to protect the integrity of elections. Every illegal vote steals the vote of a legitimate voter. Voter ID can prevent:

  • impersonation fraud at the polls;
  • voting under fictitious voter registrations;
  • double voting by individuals registered in more than one state or locality; and
  • voting by illegal aliens.

As the Commission on Federal Election Reform headed by President Jimmy Carter and Secretary of State James Baker said in 2005:

The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important.

Voter fraud does exist, and criminal penalties imposed after the fact are an insufficient deterrent to protect against it. In the Supreme Court's voter ID case decided last year, the Court said that despite such criminal penalties:

It remains true, however, that flagrant example of such fraud in other parts of the country have been documented throughout this Nation's history by respected historians and journalists, that occasional examples have surfaced in recent years, and that...demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.

The relative rarity of voter fraud prosecutions for impersonation fraud at the polls, as the Seventh Circuit Court of Appeals pointed out in the Indiana case, can be explained in part because the fraud cannot be detected without the tools - a voter ID - available to detect it. However, as I pointed out in a paper published by the Heritage Foundation last year, a grand jury in New York released a report in the mid-1980's detailing a widespread voter fraud conspiracy involving impersonation fraud at the polls that operated successfully for 14 years in Brooklyn without detection. That fraud resulted in thousands of fraudulent votes being cast in state and congressional elections and involved not only impersonation of legitimate voters at the polls, but voting under fictitious names that had been successfully registered without detection by local election officials. This fraud could have been easily stopped and detected if New York had required voters to authenticate their identity at the polls. According to the grand jury, the advent of mail-in registration was also a key factor in perpetrating the fraud. In recent elections, thousands of fraudulent voter registration forms have been detected by election officials. But given the minimal to nonexistent screening efforts engaged in by most election jurisdictions, there is no way to know how many others slipped through. In states without identification requirements, election officials have no way to prevent bogus votes from being cast by unscrupulous individuals based on fictitious voter registrations.

The problem of possible double voting by someone who is registered in two states is illustrated by one of the Indiana voters who was highlighted by the League of Women Voters in their amicus brief before the Supreme Court in the Indiana case. After an Indiana newspaper interviewed her, it turned out that the problems she encountered voting in Indiana stemmed from her trying to use a Florida driver's license to vote in Indiana. Not only did she have a Florida driver's license, but she was also registered to vote in Florida where she owned a second home. In fact, she had claimed residency in Florida by claiming a homestead exemption on her property taxes, which as you know is normally only available to residents. So the Indiana law worked perfectly as intended to prevent someone who could have illegally voted twice without detection.

I don't want to single out Texas, but just like Indiana, New York, and Illinois, Texas has a long and unfortunate history of voter fraud. In the late 1800's, for example, Harrison County was so infamous for its massive election fraud that the phrase "Harrison County Methods" became synonymous with election fraud. From Ballot Box 13 in Lyndon Johnson's 1948 Senate race, to recent reports of voting by illegal aliens in Bexar County, Texas does have individuals who are willing to risk criminal prosecution in order to win elections. I do not claim that there is massive voter fraud in Texas or anywhere else. In fact, as a former election official, I think we do a good job overall in administering our elections. But the potential for abuse exists, and there are many close elections that could turn on a very small number of votes. There are enough incidents of voter fraud to make it very clear that we must take the steps necessary to make it hard to commit. Requiring voter ID is just one such common sense step.

Not only does voter ID help prevent fraudulent voting, but where it has been implemented, it has not reduced turnout. There is no evidence that voter ID decreases the turnout of voters or has a disparate impact on minority voters, the poor, or the elderly --the overwhelming majority of Americans have photo ID or can easily obtain one.

Numerous studies have borne this out. A study by a University of Missouri professor of turnout in Indiana showed that turnout actually increased by about two percentage points overall in Indiana after the voter ID law went into effect. There was no evidence that counties with higher percentages of minority, poor, elderly or less-educated populations suffered any reduction in voter turnout. In fact, "the only consistent and statistically significant impact of photo ID in Indiana is to increase voter turnout in counties with a greater percentage of Democrats relative to other counties."

The Heritage Foundation released a study in September of 2007 that analyzed 2004 election turnout data for all states. It found that voter ID laws do not reduce the turnout of voters, including African-Americans and Hispanics - such voters were just as likely to vote in states with ID as in states where just their name was asked at the polling place.

A study by professors at the Universities of Delaware and Nebraska-Lincoln examined data from the 2000, 2002, 2004, and 2006 elections. At both the aggregate and individual levels, the study found that voter ID laws do not affect turnout including across racial/ethnic/socioeconomic lines. The study concluded that "concerns about voter identification laws affecting turnout are much ado about nothing."

In 2007 as part of the MIT/CalTech Voter Project, an MIT professor did an extensive national survey of 36,500 individuals about Election Day practices. The survey found:

  • overwhelming support for photo ID requirements across ethnic and racial lines with "over 70% of Whites, Hispanics and Blacks support[ing] the requirement;" and
  • Only 23 people out of the entire 36,500 person sample said that they were not allowed to vote because of voter ID, although the survey did not indicate whether they were even eligible to vote or used provisional ballots.

A similar study by John Lott in 2006 also found no effect on voter turnout, and in fact, found an indication that efforts to reduce voter fraud such as voter ID may have a positive impact on voter turnout. That is certainly true in a case study of voter fraud in Greene County, Alabama that I wrote about recently for the Heritage Foundation. In that county, voter turnout went up after several successful voter fraud prosecutions instilled new confidence in local voters in the integrity of the election process.

Recent election results in Georgia and Indiana also confirm that the suppositions that voter ID will hurt minority turnout are incorrect. Turnout in both states went up dramatically in 2008 in both the presidential preference primary and the general election.

In Georgia, there was record turnout in the 2008 presidential primary election - over 2 million voters, more than twice as much as in 2004 when the voter photo ID law was not in effect. The number of African-Americans voting in the 2008 primary also doubled from 2004. In fact, there were 100,000 more votes in the Democratic Primary than in the Republican Primary. And the number of individuals who had to vote with a provisional ballot because they had not gotten the free photo ID available from the state was less that 0.01%.

In the general election, Georgia, with one of the strictest voter ID laws in the nation, had the largest turnout in its history - more than 4 million voters. Democratic turnout was up an astonishing 6.1 percentage points from the 2004 election. Overall turnout in Georgia went up 6.7 percentage points, the second highest increase of any state in the country. The black share of the statewide vote increased from 25% in 2004 to 30% in 2008. By contrast, the Democratic turnout in the nearby state of Mississippi, also a state with a high percentage of black voters but without a voter ID requirement, increased by only 2.35 percentage points.

I should point out that the Georgia voter ID law was upheld in final orders issued by every state and federal court in Georgia that reviewed the law, including most recently by the Eleventh Circuit Court of Appeals. Just as in Texas, various organizations in Georgia made the specious claims that there were hundreds of thousands of Georgians without photo ID. Yet when the federal district court dismissed all of their claims, the court pointed out that after two years of litigation, none of the plaintiff organizations like the NAACP had been able to produce a single individual or member who did not have a photo ID or could not easily obtain one. The district court judge concluded that this "failure to identify those individuals is particularly acute in light of the Plaintiffs' contention that a large number of Georgia voters lack acceptable Photo ID...the fact that Plaintiffs, in spite of their efforts, have failed to uncover anyone who can attest to the fact that he/she will be prevented from voting provides significant support for a conclusion that the photo ID requirement does not unduly burden the right to vote."

In Indiana, which the Supreme Court said has the strictest voter ID law in the country, turnout in the Democratic presidential preference primary in 2008 quadrupled from the 2004 election when the photo ID law was not in effect - in fact, there were 862,000 more votes cast in the Democratic primary than the Republican primary. In the general election in November, the turnout of Democratic voters increased by 8.32 percentage points from 2004, the largest increase in Democratic turnout of any state in the nation. The neighboring state of Illinois, with no photo ID requirement and President Obama's home state, had an increase in Democratic turnout of only 4.4 percentage points - nearly half of Indiana's increase.

Just as in the federal case in Georgia, the federal court in Indiana noted the complete inability of the plaintiffs in that case to produce anyone who would not be able to vote because of the photo ID law:

Despite apocalyptic assertions of wholesale vote disenfranchisement, Plaintiffs have produced not a single piece of evidence of any identifiable registered voter who would be prevented from voting pursuant to [the photo ID law] because of his or her inability to obtain the necessary photo identification.

One final point on the claims that requiring an ID, even when it is free, is a "poll tax" because of the incidental costs like possible travel to a registrar's office or obtaining a birth certificate that may be involved. That claim was also raised in Georgia. The federal court dismissed this claim, pointing out that such an "argument represents a dramatic overstatement of what fairly constitutes a 'poll tax'. Thus, the imposition of tangential burdens does not transform a regulation into a poll tax. Moreover, the cost of time and transportation cannot plausibly qualify as a prohibited poll tax because those same 'costs' also result from voter registration and in-person voting requirements, which one would not reasonably construe as a poll tax."

We are one of only about one hundred democracies that do not uniformly require voters to present photo ID when they vote. All of those countries administer that law without any problems and without any reports that their citizens are in any way unable to vote because of that requirement. In fact, our southern neighbor Mexico, which has a much larger population in poverty than Texas or the United States, requires both a photo ID and a thumbprint to vote - and turnout has increased in their elections since this requirement went into effect in the 1990's.

Requiring voters to authenticate their identity is a perfectly reasonable and easily met requirement. It is supported by the vast majority of voters of all races and ethnic backgrounds. As the Supreme Court said, voter ID protects the integrity and reliability of the electoral process. Texas has a valid and legitimate state interest not only in deterring and detecting voter fraud, but in maintaining the confidence of its citizens in the security of its elections.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies