Further Thoughts on Voter ID in Light of the Pennsylvania Decision

David Weigel has been providing exhaustive coverage of the voter ID debate and, most recently, the legal battle in Pennsylvania over its stringent voter ID law, which many activists fear will disenfranchise large numbers of legitimate voters. I’ve outlined my take on voter ID: concerns about voter fraud are legitimate, but it is important to give legitimate voters an opportunity to acquire photo identification or to more broadly define what constitutes acceptable identification. The Brennan Center, a left-of-center group critical of stringent voter ID requirements, has documented some of the difficulties involved in obtaining free ID cards in a report by Keesha Gaskins and Sundeep Iyer:

Proponents of voter ID laws often say the requirement is not onerous because state-issued photo ID is available at no charge. But in all restrictive ID states except South Carolina, even if an eligible voter does not have to pay for the ID itself, he or she must provide supporting documentation — such as a birth certificate or a naturalization certificate — to obtain a state-issued photo ID suitable for voting. These records can be very costly.

An official copy of a birth certificate can cost anywhere from $15 to $30, depending on the state. The fees for a new passport or to renew a passport are $135 and $110, respectively. The price of a replacement naturalization certificate or certificate of citizenship is $345.

Married women who have changed their surname face an additional burden: They may need to present a marriage license with their current name to obtain a photo ID. Only 48 percent of voting-age American women who have ready access to their birth certificate have their current name on it. Fees for official copies of marriage licenses range from $5 to $40.Thus, a married woman who does not have a certified copy of her birth certificate and marriage license could easily spend $30 to $70 acquiring the documents necessary to obtain a photo ID.

But even these costs pale in comparison to the potential costs for people who were never issued birth certificates or whose birth certificates contain significant errors with respect to their race, name, or other key identifiers. These individuals often must obtain other official records, such as their school attendance records, spouse’s documentation, or childhood documentation. Each document carries with it separate costs and administrative processes.

In my view, this isn’t a case against ID requirements as such. Rather, it is a case for implementing ID requirements over a long enough period of time that various bureaucracies can accommodate hard cases. Rhode Island, where a liberal legislature implemented a voter ID requirement, has taken that approach. (See Simon von Zuylen-Wood on the quirky racial politics of the Rhode Island reform.) Other states allow voters to use other verification procedures, like signing a sworn affidavit

The central problem with the Pennsylvania voter ID law is that it expects too much from Pennsylvania’s state government and from the potentially large number of Pennsylvania voters who do not have proper identification in too short a timeframe. This subject is of particular interest to me because I am in an extremely small minority: I do not have a driver’s license. I do have other forms of state-issued identification, and so I would have no problem complying with Pennsylvania’s law. But I recognize that there are nontrivial numbers of people, particularly in urban areas, who would.

Weigel directs his readers to election law scholar Rick Hasen’s analysis of the Pennsylvania decision. Here is a passage that might be of interest:

In essence, the judge determined the following: the new voter i.d. law is likely to affect more than 1% but significantly less than the alleged 9% of Pennsylvania voters who plaintiffs alleged lacked the i.d. He thought it credible that state officials could get i.d.s into the hands of most voters who wanted them on election day. Many of the plaintiffs brought into the case to “put a face” on the case will have other means of voting, such as through absentee balloting. For those relatively few voters who will have significant difficulties getting voter id, and who cannot vote with an absentee ballot., they may well be entitled to an order, as applied to these voters only, barring the use of the id law as unconstitutional. Under the Supreme Court’s Crawford case (which is not strictly applicable in this case, decided under state law, but which is persuasive authority to the court), invalidating the law in the entire state is too broad of a remedy; the focus should be on those voters facing special burdens.

This might be a reasonable way to address the concerns of the Pennsylvania law’s critics, but that remains to be seen. 

Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

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