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State to Voters: Can I See Some ID?

Indiana law requiring government-issued identification at the polling booth suggests Americans should be as concerned with someone stealing their vote as with their personal information. But is the cost of such protection disenfranchisement for some?

Mention “identity theft,” and most people conjure images of computer hackers or mail thieves stealing credit card numbers to buy consumer electronics and luxury goods. But Indiana Secretary of State Todd Rokita says identity theft — in the form of in-person vote fraud — can be used to steal elections, too.

Because “voting is a sacred civic transaction that should be protected,” Rokita defends Indiana’s 2005 law requiring voters to present government-issued photo identification. By associating vote fraud with identity theft — which, he notes, “continues to be the fastest-growing crime in the country” — Rokita raises the question of whether Americans should be just as concerned about the possibility of someone stealing their vote as they are about the chances of someone absconding with their personal financial information.

Indiana’s voter ID law — one of many pieces of state legislation passed since 2000 imposing new voter ID requirements — has been challenged by the Indiana Democratic Party and individual plaintiffs as imposing an unconstitutional burden on the right to vote. The law has been upheld in federal court; the U.S. Supreme Court heard oral arguments in the case on Jan. 9.

The issue of requiring voter ID at the polls is often cast in partisan terms.

Republicans — in line with their law-and-order image — are more often seen pushing for stricter requirements as a way to prevent vote fraud. Democrats are generally opposed to greater stringency, asserting that such requirements disproportionately affect — and therefore disenfranchise — poor, minority and elderly voters, who tend to vote Democratic. But it might be more useful to consider the debate in terms of which we consider the greater problem: the possibility that an election result will be affected by vote fraud perpetrated by ineligible voters, or the likelihood that fewer eligible voters will participate in the democratic process because of burdensome requirements.

Even in states with lesser ID requirements, however, political participation appears to be affected. In a study conducted by researchers at Brown University, the findings indicated that putting voter ID requirements in place tends to reduce voting across most racial and ethnic groups.

Interestingly, the requirements did not significantly affect voter registration rates among blacks and Hispanics (whites were actually more likely to register) in the 19 states studied. But blacks and Hispanics were far less likely to ultimately cast a vote — 14 percent and 20 percent, respectively. Whites were significantly affected as well, with their odds of voting reduced by 10 percent. The Brown researchers also found that voter ID requirements substantially decreased voting by people with low levels of income and education, renters and those who have recently moved.

Tova Wang, who co-authored a 2006 report on voter fraud and voter intimidation for the federal Election Assistance Commission, concludes “although there is fraud in the system, it doesn’t take place at the polling place.”

Instead, Wang and other experts say, vote fraud is perpetrated by other means, such as stuffing ballot boxes, doctoring registration lists or tampering with voting machines. Thus, states that are tightening voter ID requirements may be trying to plug the wrong leak. And with a voter turnout rate of only 64 percent in the 2004 general election, it seems natural to ask whether instituting new rules that discourage yet more people from voting is consistent with democratic principles.

Not everyone agrees with Wang.

According to a 2005 report issued by the bipartisanCommission on Federal Election Reform, “There is no evidence of extensive fraud in U.S. elections or of multiple voting, but both occur, and it could affect the outcome of a close election.” The report acknowledged that the commission, chaired by former President Jimmy Carter and former Secretary of State James Baker III, could not reach a consensus on the subject, “with some [commissioners] believing the problem is widespread and others believing that it is minor.”

Nevertheless, the commission declined to recommend eliminating voter identification requirements because “the problem … is not the magnitude of the fraud. In close or disputed elections, and there are many, a small amount of fraud could make the margin of difference.”

Robert Kelner, an attorney who specializes in election law for Washington law firm Covington & Burling, concurs, telling“I am not inclined to believe that the kind of voter fraud to which photo ID laws are directed is rampant.” He adds, “Nor need it be rampant to justify reasonable precautions against fraud. The various anti-fraud provisions built into our election system are … there to ensure the overall integrity of the voting system. … Integrity of the system (and confidence in the reliability of election outcomes) is and ought to be the predominant concern in any democratic society.”

Kelner notes that “most Americans believe (as polls have repeatedly demonstrated) that photo ID laws are a quite modest and reasonable further step to ensure the integrity of the voting system.”

But as history has also demonstrated repeatedly, the fact that a majority of Americans supports a policy doesn’t make it constitutional. In a friend of the court brief in support of the plaintiffs in the Indiana case, the Indiana League of Women Voters argues that the fact that a voter ID law may inconvenience a small number of people is not relevant: “The number of voters burdened does not determine whether an individual’s fundamental right to vote has been impermissibly infringed. The focus of constitutional inquiry is correctly on the burdens to a given individual, and not on the raw number of people burdened.”

Although only seven states currently require photo ID for voting, it should be noted that the Census Bureau and Federal Highway Administration estimate that 21 million Americans — 11 percent of the voting-age population — lack a current government-issued photo ID.