CMC Law Group Blog

Yesterday Pennsylvania got one step closer to passing a restrictive voter ID law, and Monday, the Department of Justice used its powers under the Voting Rights Act to halt a Texas voter ID law.  There has been a recent wave of litigation by the Justice Department and other groups against similar voting laws in South Carolina and Wisconsin.   Since Republicans overwhelmingly took over state legislatures across the country in 2010, voter laws similar to Texas’ have been passed with eight new ID laws passed last year alone.   Justified by the myth that voter fraud is a significant problem in the country, voter ID laws have erected barriers to prevent voters from exercising their right to vote.  Considering the above, I think it is appropriate to discuss my views on voter ID laws.   

Using the Texas voter ID law as an example, seven forms of photo ID were deemed acceptable in Texas.  These forms of ID included handgun carrying permits, several forms of state or federal government ID.  If the voter fails to provide proper ID, then the voter is able to cast a provisional ballot.   The Justice Department argued that this kind of voter ID law places strict barriers on the right of minorities, in this case Hispanics, to legitimately cast a ballot during an election.  I agree.  Although it seems simple enough for someone like me, with means and opportunity, to get an ID card, many who are economically depressed, work multiple jobs, or work in an urban setting where having standard identification (like a driver’s license) is generally unnecessary, cannot easily obtain voter ID.   As a result, the effect of these voter ID laws work to prevent minorities, and in many cases Democratic, voters from casting a ballot by forcing college students, the poor, urban residents, and minorities to get ID before voting. 

I flatly reject the idea that fear of voter fraud justifies using the law as a means to bar otherwise valid voters from exercising the right to cast a ballot.  I argued in a previous article that voter fraud is at best a specious argument.  There is something instinctual to stating that voter systems should be immune to fraud.  However, before burdening an individual’s right to vote, a constitutional right implied by substantive due process in the Fourteenth Amendment, the government should supply ample evidence prior to doing so.  The state legislatures have resoundingly relied on fears that without voter ID laws, rampant fraud would wrack our election system.  But, as Rick Hasen points out, and as I noted in the article above, most cases of voter fraud are little more than anecdotes with scant evidence to justify burdening a fundamental right. 

My solution to voter fraud is simple: if a voter’s credentials are challenged then that voter should be given the opportunity to file an available affidavit at the polling location, on the day of the election, testifying as to voter’s true identity.  After filing the affidavit, the voter should be allowed to cast a regular ballot that is counted with all of the other ballots at the polling location, despite the challenge.  If it is later found that the voter lied on the affidavit then the voter should be penalized for perjury and voter fraud.   This solution, although not perfect, assumes that the average voter is not a fraudulent voter.  Furthermore, rather than inconveniencing a voter or requiring the voter to fill out a provisional ballot, which has its own problems, the voter is allowed to cast a traditional ballot that will be counted with all other ballots.  Voting is a fundamental right, and before legislatures lightly dispense with that right through voter ID laws, they should instead look to simpler methods to resolve voter fraud concerns that protect the integrity of the system and protect the average voter’s ability to vote.