Laws requiring all voters to present very specific forms of identification before exercising their right to vote are rapidly becoming the voting rights barrier of the 21st Century. Last Friday, the Department of Justice approved a new Georgia law requiring every voter to show a government-issued photo ID. The Department of Justice was required to review the measure and “preclear” it because that state is covered by Section 5 of the Voting Rights Act. Although many legal scholars and voting rights advocates had argued the Department should deny its implementation because it would lead to disenfranchisement of minority voters, the Department evidently did not agree. Indiana passed similar legislation this year, and several groups have sued the state on the grounds that it violates the
Voting Rights Act.
Next up is Arizona. Last week, after months of resisting, the governor of Arizona signed off on a plan for implementing Proposition 200, which required identification from all voters. Arizona’s new rule
is that all voters must show government issued photo identification or a tribal identification to vote. Alternatively, the voter may present two current pieces of identification from a narrow list of potential documents that show the voter’s name and current address, such as a utility and phone bills.
The most problematic provision is this: if the voter is not able to present a government issued photo ID or these two documents to the satisfaction of the poll worker, that voter is simply disenfranchised, asked to leave the polling place without casting a ballot. The voter may not even cast a provisional ballot. For example, if the voter brings a gas bill and a water bill, but the poll worker decides the water bill is not “dated within ninety days of the election,” that person will be absolutely denied the right to vote. In addition to being a violation of the Help America Vote Act’s mandate that any voter who shows up at the polls and believes he or she is registered and eligible to vote must be given a provisional ballot, this raises serious voting rights issues.
As a group of preeminent voting rights scholars have argued in Georgia, under Section 5 of the Voting Rights Act, a covered jurisdiction may not implement a change in its election laws or practices unless the jurisdiction demonstrates the change will be free of any racially discriminatory purpose or effect. The objective of Section 5 “has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.”
As in Georgia , Arizona—especially given the possibility of a complete
denial of the vote—has not met that burden of proof. It is up to the state
to demonstrate that the ID requirement, which contemplates complete disenfranchisement
of certain voters, will not have a discriminatory impact. So, for example, has
the state examined whether most voters have or have easy access to the necessary
documents? Have state officials investigated what groups are likely to lack
the kinds of identification required? Since the law puts the burden on the state,
the state must undertake these types of inquiries before it is permitted to
go forward with this scheme—for there is a great deal of evidence indicating
that it is indeed minorities who lack even one form let alone two forms of the
types of identification contemplated.
The difficulty is that the poor and minorities are least likely to own motor vehicles and possess a driver’s license—the most commonly accepted form of identification. Indeed, in 1994, the U.S. Department of Justice found that African-Americans in Louisiana were 4 to 5 times less likely to have government-sanctioned photo ID than white residents. As a result, the Department denied pre-clearance for that state’s proposed photo ID requirement because it “would lead to retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.”
The evidence continues to mount. A June 2005 study
by the University of Wisconsin. found that less than half (47 percent) of
Milwaukee County African American adults and 43 percent of Hispanic adults have
a valid drivers license compared to 85 percent of white adults outside Milwaukee.
One Arizona county reported
in February that it was forced to reject nearly 75 percent of new voter registration
forms for failure to provide adequate proof of citizenship.
Furthermore, for those who do not have the kinds of up-to-date non-photo ID necessary—and many minority and urban voters, for example those who live in multiple family dwellings simply will not—getting identification from the government will present costs and burdens for voters who simply want to exercise their constitutional right to vote. A certified copy of a birth certificate costs from $10.00 to $45.00, depending on the state; a passport costs $85.00; and certified naturalization papers cost $19.95. It may not be so very easy for people who work more than one job or have small children to take the time during business hours, drive to a Department of Drivers Services, and wait on line to get necessary identification. Indeed, most of the state’s offices are open 8:00 a.m. to 5:00 p.m. Monday through Friday. Has the state researched the potential disparate impacts on getting non-photo ID? If not, it has not met its burden under the Act.
There has been a great deal of controversial discussion over the Voting Rights Act recently because some sections—including Section 5—are due to expire. The Act was passed in order to eliminate procedures aimed at the disenfranchisement of particular groups. That it is still necessary is being demonstrated today in Arizona and Georgia.