Winning the Fight for Voter-ID

by John Fund
States with voter-ID laws must implement them soundly.

In 2008, the U.S. Supreme Court upheld on a 6-to-3 vote the constitutionality of laws requiring voter ID at the polls. Justice John Paul Stevens, one of the left-of-center judges on the Court, wrote the opinion in a case involving Indiana’s voter-ID law: He found that the Court could not “conclude that the statute imposes ‘excessively burdensome requirements’ on any class of voters.”

But our Constitution decentralizes our election procedures over 13,000 counties and towns, and states themselves are in charge of writing voter-ID laws should they choose to do so. Some do it better than others.

Last Friday, Judge Bernard McGinley of the Pennsylvania Commonwealth Court found that his state’s voter-ID law violated Pennsylvania’s constitution because the manner in which it was implemented placed an unreasonable burden on voters. The law, passed in 2012, had been blocked from taking effect while the court case against it ground forward. McGinley’s decision is likely to be appealed to the Pennsylvania Supreme Court. Or the legislature could pass a new version of the law that would answer the judge’s objections.

McGinley concluded that the law had been implemented in a sloppy, haphazard way and that the state had not done enough to help provide IDs to voters who lacked one. Opponents of voter-ID laws are cheering the Pennsylvania ruling as a harbinger of further rollback of such laws nationwide. But it’s hardly that. “The relevance of this ruling to other voter ID challenges is somewhat limited,” writes Rick Hasen, a law professor specializing in election law at the University of California at Irvine. “The findings on implementation are state specific and don’t really carry over to other states.”

In addition, the judge found that Pennsylvania’s law was not motivated by any effort to disenfranchise minorities or Democratic voters — despite comments from a couple of GOP state legislators predicting that the law, if it stood, would reduce voter fraud in the overwhelmingly Democratic stronghold of Philadelphia.

What won’t be helpful in the defense of voter-ID laws in other states was Judge McGinley’s finding that the state offered no evidence to support its claim that the law was needed to block voter fraud. That decision by attorneys from the office of Kathleen Kane, the state’s Democratic attorney general, badly undercuts supporters of the law.

It’s not as if there aren’t clues that voter fraud is a problem. In 2012, Philadelphia city commissioner Al Schmidt, a Republican, issued a 27-page report on irregularities he found in a sample of city precincts during that year’s primary. The report, which looked at only 1 percent of the city’s districts, found cases of double voting, voter impersonation, and voting by non-citizens, as well as 23 people who were not registered to vote but nonetheless voted. Schmidt also found reports of people who were counted as voting in the wrong party’s primary. “We identified hundreds of cases of voting irregularities [in select precincts] that warrant further investigation,” he concluded.

But his report was largely ignored by city officials, who operate in an environment that former Democratic governor Ed Rendell (and former Philadelphia mayor) admitted to me was “a yeasty system where the rule of law isn’t always followed.” Indeed, the city has long been a fount of corruption. This was also true when Republicans ran a machine that dominated the city for 80 years, until the 1950s; during that period, not a single Democrat was elected mayor, in part because of Republican-led voter fraud. All that changed after Democrats seized control of the levers of city power and bent them to their will.

Longtime observers of Philadelphia are quite candid about what goes on there. The late Arlen Specter, who served Pennsylvania in the U.S. Senate as both a Republican and a Democrat, openly scoffed at liberal claims that there was no voter fraud. “They don’t see what they don’t want to see,” he told me in 2011. “I’m from Philadelphia. It’s been a way of life here.” Even after he became a Democrat, he stood by his 2007 GOP vote in favor of requiring photo IDs in all federal elections.

One reason for this is that Specter may once have been a victim of voter fraud himself. In 1967, he ran for mayor as a reform Republican against a Democratic machine that, Specter said, was “highly suspect if not demonstrably corrupt.” Specter lost by 10,000 votes out of more than three-quarters of a million cast, and he strongly suspected that voter fraud played a big role in his loss.

Chris Matthews, the left-wing MSNBC host who hails from Pennsylvania, agrees that voter fraud is a Philly tradition. On Hardball he explained a common scheme there: Someone calls to enquire whether you voted or are going to vote, and “then all of a sudden, somebody does come and vote for you.” Matthews says it’s an old strategy in big-city politics: “I know all about it in North Philly — it’s what went on, and I believe it still goes on.”

Having said that, the same government entities that historically have failed to adequately address voter fraud also apparently botched the implementation of the state’s voter-ID law. Judge McGinley found that the that state deployed too few mobile units to issue voter IDs and that wait times at DMV offices for voter IDs were often long. The state also spent too little money on educating voters about the new law and often issued vague implementation regulations on the fly.

Any state looking to implement a sound voter-ID law must address these problems. Rhode Island secretary of state Ralph Mollis, a Democrat, convinced his state’s left-leaning legislature to pass a photo-ID bill in 2011 to address problems of voter fraud in Providence and other cities. The law included extensive outreach efforts, with Mollis’s office going to senior centers, homeless shelters, and community centers to process free IDs. The law has been implemented smoothly, Mollis says, and he views it as a national model.

Indeed, in 2005, a bipartisan Commission on Federal Election Reform, headed by former president Jimmy Carter and former secretary of state James Baker, issued 87 recommendations on how to clean up our system. One of its most important, support for national voter ID, was based on the commission’s finding that “the electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters.” Eighteen of the 21 commission members called for voters to show photo ID at the polls and for more security for absentee ballots.

Robert Pastor, the former executive director of the Carter-Baker commission (he also set up the Carter Center’s election-monitoring programs), says he is disappointed that so few of the commission’s recommendations have been implemented at the state or national level. In 2012, after a trip to Mexico, he compared that country’s electoral system unfavorably with ours: “The Mexican electoral system is much fairer, professional, independent, and nonpartisan than the U.S. system.” Every voter gets a biometric photo-ID card; the registration list is audited regularly; and the photos of the voters are on the list in each polling site.

Sadly, Pastor died this month, and his commonsense, bipartisan approach to making our election laws better will be missed. We need voter-ID laws to protect ballot integrity, and we also have to provide adequate resources to make sure voters have an ID. Such efforts should be in everyone’s interests. Andrew Young, President Carter’s U.N. ambassador, noted that, in an era when people have to show ID to travel, marry, or cash a check “requiring ID can help poor people who otherwise might be even more marginalized by not having one.”

When Pennsylvania’s voter-ID law is either appealed or rewritten, let’s hope that the state does a better job debunking the inflated estimates that hundreds of thousands of Pennsylvanians lacked an ID.

The state should also emphasize that even when voters show up at the polling place without an ID, they can vote on a provisional ballot. The state will count that ballot if the voter mails, faxes, or e-mails a copy of acceptable ID within six days of the election. If a person lacks the money to obtain the background documents necessary to acquire a voter ID, he can sign an affidavit attesting to that fact, after which his vote will be counted without further questions.

Pennsylvania officials should also explain that requiring voter IDs does more than keep fraudsters away from polling places. It also deters voting under false registrations and voting by illegal aliens and people registered in more than one state. U.S. Justice Department investigations in the past have shown that these types of fraud do take place in Pennsylvania.

As for allegations that there is scant evidence that people commit voter fraud at polling places, the Seventh Circuit Court of Appeals addressed these when it upheld Indiana’s voter-ID law:

There is voter fraud, specifically the form of voting fraud in which a person shows up at the polls claiming to be someone else — someone who has left the district, or died, too recently to have been removed from the list of registered voters, or someone who has not voted yet on election day. Without requiring a photo ID, there is little if any chance of preventing this kind of fraud because busy poll workers are unlikely to scrutinize signatures carefully and argue with people who deny having forged someone else’s signature. . . . The absence of prosecutions is explained by the endemic underenforcement of minor criminal laws (minor as they appear to the public and prosecutors, at all events) and by the extreme difficulty of apprehending a voter impersonator.

New York City’s watchdog Department of Investigations proved how easy it is commit in-person fraud last month when it issued a reporting detailing how its undercover agents showed up at 63 polling places and claimed to be individuals who had in fact died or moved out of town, or who were sitting in jail. In 61 instances, or 97 percent of the time, the testers were allowed to vote (they voted only for nonexistent write-in candidates). The city’s Board of Elections, rather than examine its own sloppy procedures, responded by demanding that the investigators be prosecuted.

Pennsylvania’s voter-ID law is in need of a tune-up, especially when it comes to outreach on free IDs. But the basic case for such laws hasn’t been undermined by the decision of the Pennsylvania court. The vast majority of voters agree with the U.S. Supreme Court that properly drafted voter-ID laws are not overly burdensome. A 2012 Washington Post poll found that nearly two-thirds of African Americans and Hispanics back the requirement for photo IDs. And for good reason. Where strict voter-ID laws have been in operation for years, in states such as Indiana and Georgia, they have worked smoothly and the turnout of minority voters has in fact increased. Indeed, the Census Bureau has found that the rate of voter turnout for blacks exceeded that of whites for the first time in the 2012 election.

“When the day is done, my job is to maintain the integrity of elections,” Mollis says in explaining his support for voter-ID in Rhode Island as well as in other states. “Even if a state doesn’t have an immediate problem with fraud, doesn’t it make sense to take sensible precautions rather than wait for someone to abuse the system, and then it’s too late?”

— John Fund is a national-affairs columnist for National Review Online. Along with Hans von Spakovsky, he is the author of Who’s Counting: How Fraudsters and Bureaucrats Put Your Vote at Risk.