Everything You've Ever Wanted to Know About Voter ID Laws

by Suevon Lee ProPublica, Sept. 27, 2012, 12:35 p.m.

Editor's note, Sept. 27, 2012 This post, which was first published July 23, 2012, has been updated and clarified with new developments.

Voter IDs laws have become a political flashpoint in what's gearing up to be another close election year. Supporters say the laws — which 30 states have now enacted in some form — are needed to combat voter fraud, while critics see them as a tactic to disenfranchise voters.

We've taken a step back to look at the facts behind the laws and break down the issues at the heart of the debate.

So what are these laws?

They are measures intended to ensure that a registered voter is who he says he is and not an impersonator trying to cast a ballot in someone else's name. The laws, most of which have been passed in the last several years, require that registered voters show ID before they're allowed to vote. Exactly what they need to show varies. Some states require a government-issued photo, while in others a current utility bill or bank statement is sufficient.

As a registered voter, I thought I always had to supply some form of ID during an election.

Not quite. Per federal law, first-time voters who registered by mail must present a photo ID or copy of a current bill or bank statement. Some states generally advise voters bring some form of photo ID. But prior to the 2006 election, no state ever required a voter to produce a government-issued photo ID as a condition to voting. Indiana in 2006 became the first state to enact a strict photo ID law, a law that was upheld two years later by the U.S. Supreme Court.

Why are these voter ID laws so strongly opposed?

Voting law opponents contend these laws disproportionately affect elderly, minority and low-income groups that tend to vote Democratic. Obtaining photo ID can be costly and burdensome, with even free state ID requiring documents like a birth certificate that can cost up to $25 in some places. According to a study from NYU's Brennan Center, 11 percent of voting-age citizens lack necessary photo ID while many people in rural areas have trouble accessing ID offices. During closing arguments in a recent case over Texas's voter ID law, a lawyer for the state brushed aside these obstacles as the "reality to life of choosing to live in that part of Texas."

Attorney General Eric Holder and others have compared the laws to a poll tax, in which Southern states during the Jim Crow era imposed voting fees, which discouraged blacks, and even some poor whites -- until the passage of grandfather clauses -- from voting.

Given the sometimes costly steps required to obtain needed documents today, legal scholars argue that photo ID laws create a new "financial barrier to the ballot box."

Just how well-founded are fears of voter fraud?

There have been only a small number of fraud cases resulting in a conviction. A New York Times analysis from 2007 identified 120 cases filed by the Justice Department over five years. These cases, many of which stemmed from mistakenly filled registration forms or misunderstanding over voter eligibility, resulted in 86 convictions.

There are "very few documented cases," said UC-Irvine professor and election law specialist Rick Hasen. "When you do see election fraud, it invariably involves election officials taking steps to change election results or it involves absentee ballots which voter ID laws can't prevent," he said.

An analysis by News21, a national investigative reporting project, identified 10 voter impersonation cases out of 2,068 alleged election fraud cases since 2000 – or one out of every 15 million prospective voters.

One of the most vocal supporters of strict voter ID laws, Texas Attorney General Greg Abbott, told the Houston Chronicle earlier this month that his office has prosecuted about 50 cases of voter fraud in recent years. "I know for a fact that voter fraud is real, that it must be stopped, and that voter id is one way to prevent cheating at the ballot box and ensure integrity in the electoral system," he told the paper. Abbott's office did not immediately respond to ProPublica's request for comment.

How many voters might be turned away or dissuaded by the laws, and could they really affect the election?

It's not clear.

According to the Brennan Center, about 11 percent of U.S. citizens, or roughly 21 million citizens, don't have government-issued photo ID. This figure doesn't represent all voters likely to vote, just those eligible to vote.

In late September, an analysis by Reuters and research firm Ipsos of data culled from 20,000 voter interviews found that those lacking proper ID were less likely to vote anyway, "regardless of state law changes."

Among those who said they were "certain to vote," only 1 percent said they did not have proper ID while another 1 percent said they were uncertain whether they had the proper ID.

The analysis also found that those who lack valid photo ID tended to be young people, those without college educations, Hispanics and the poor.

State figures also can be hard to nail down. In Pennsylvania, nearly 760,000 registered voters, or 9.2 percent of the state's 8.2 million voter base, don't own state-issued ID cards, according to an analysis of state records by the Philadelphia Inquirer. State officials, on the other hand, place this number at between 80,000 and 90,000.

In Indiana and Georgia, states with the earliest versions of photo ID laws, about 1,300 provisional votes were discarded in the 2008 general election, later analysis has revealed.

As for the potential effect on the election, one analysis by Nate Silver at the New York Times' FiveThirtyEight blog estimates they could decrease voter turnout anywhere between 0.8 and 2.4 percent. It doesn't sound like a very wide margin, but it all depends on the electoral landscape.

"We don't know exactly how much these news laws will affect turnout or skew turnout in favor of Republicans," said Hasen, author of the recently released The Voting Wars: From Florida 2000 to the Next Election Meltdown. "But there's no question that in a very close election, they could be enough to make a difference in the outcome."

When did voter ID laws get passed — and which states have the strictest ones?

The first such law was passed as early as 2003, but momentum has picked up in recent years. In 2011 alone, legislators in 34 states introduced bills requiring voters show photo ID — 14 of those states already had existing voter ID laws but lawmakers sought to toughen statutes, mainly to require proof of photo identification.

The National Conference of State Legislatures has a helpful breakdown of states' voter ID laws and how they vary.

Indiana, Georgia, Tennessee, Kansas and Pennsylvania have the toughest versions. These states won't allow voters to cast a regular ballot without first showing valid photo ID. Other states with photo ID laws offer some more flexibility by providing voters with several alternatives.

What happens if a voter can't show valid photo ID in these states?

These voters are entitled to a provisional ballot. To ensure their votes count, however, they must produce the mandatory ID within a certain time frame and affirm in person or writing they are the same individual who filled out a temporary ballot on Election Day. The time limits vary: They range anywhere from up to three days after the election (Georgia) to noon the Monday after the election (Indiana).

Are there any exceptions to the photo ID requirement?

Yes. Indigency or religious objections to being photographed. But these exceptions don't automatically grant a voter the ability to cast a regular ballot: In Pennsylvania and Indiana, voters will be given a provisional ballot and must sign an affidavit for their exemption within the given time frame. For a more specific breakdown of all exceptions, see this state-by-state summary.

Why is the Justice Department getting involved in some cases?

Because of Section 5 of the Voting Rights Act, which requires that states with a history of discrimination receive preclearance before making changes to voting laws. Texas and South Carolina passed strict photo ID laws in 2011 but were refused preclearance by the DOJ, which argued that these laws could suppress turnout among minority voters. Texas went to court seeking judicial preclearance from a federal district court; in August, a three-judge panel of the U.S. District Court for the District of Columbia blocked the law. South Carolina has presented arguments before the same court.

What about challenges to the laws?

On Aug. 15, a Pennsylvania judge shot down an attempt to attempt to block the state's voter ID law. The plaintiffs appealed. On Sept. 18, the Pennsylvania Supreme Court, by a 4-2 vote, vacated the judge's order and returned the case for further review. The justices asked the trial judge to assess whether voters could obtain state-issued photo ID without difficulty in the short time remaining before the November general election. If the judge could not be convinced voters wouldn't be disenfranchised, the justices wrote, the law should be temporarily blocked.

As we've reported, other judges have also ruled in favor of other states' voter ID laws. Here's a rundown of the rulings.

The DOJ is also investigating many of the states' laws, including Pennsylvania's photo ID law. As first reported by Talking Points Memo, the DOJ's Civil Rights Division sent the state's chief election official a letter Monday afternoon requesting 16 separate items, including the state's complete voter registration list, any documents supporting the governor's prior assurance that "99 percent" of the state's eligible voters already have acceptable photo ID, any papers to prove the state is prepared to provide registered voters with ID cards free of charge upon oath or affirmation, and any studies that inform state officials of the "demographic characteristics" of residents who lack valid voter ID.

The DOJ letter states it needs these documents within 30 days to evaluate the state's compliance with Section 2 of the Voting Rights Act, which forbids voting practices that discriminate on the basis of race, color, or membership in a language minority group.

Have any states attempted to enact strict voter ID laws but so far been unsuccessful?

Yes. In Wisconsin, two judges have blocked enforcement of the state's photo ID law. The state attorney general has asked the Wisconsin Supreme Court to intervene and reinstate the law before the November election. Meantime, Democratic governors in Minnesota, Missouri, New Hampshire and North Carolina have vetoed strict photo ID bills passed by their Republican-led legislatures last year.

Are there other voter ID laws in effect that ask for but don't necessarily require photo ID?

Yes. In these so-called "non-strict photo ID states" — Florida, Louisiana, Michigan, Idaho, South Dakota and Hawaii — individuals are requested to show photo ID but can still vote if they don't have one. Instead, they may be asked to sign affidavits affirming their identity or provide a signature that will be compared with those in registration records.

Why has there been such a recent surge in voter ID legislation around the country?

This report by NYU's Brennan Center for Justice cites primarily big Republican gains in the 2010 midterms which turned voter ID laws into a "major legislative priority." Aside from Rhode Island, all voter ID legislation has been introduced by Republican-majority legislatures.

News21 also has this report on the close affiliation between the bills' sponsors and the conservative nonprofit group, American Legislative Exchange Council (ALEC).

Republican figures have championed such laws. For instance, Mike Turzai, majority leader of the Pennsylvania House of Representatives, recently praised the state's legislative accomplishments at a Republican State Committee meeting last month. "Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done," he said.

A spokesman for Turzai, Steve Miskin, told ProPublica that Turzai was "mischaracterized" by the press. "For the first time in many years, you're going to have a relatively level playing field in the presidential elections" as the result of these new laws," Miskin said. "With all things equal, a Republican presidential nominee in Pennsylvania has a chance."

Correction August 20, 2012: An earlier version of this story incorrectly stated "voting law advocates contend these laws disproportionately affect elderly, minority and low-income groups that tend to vote Democratic." It's voting law opponents who make that contention.

Correction July 24, 2012: An earlier version of this story said Texas went to federal court to challenge the DOJ's denial of preclearance. In fact, Texas filed a lawsuit seeking preclearance from the federal district court two months before the DOJ announced its decision. Also, some states require a government-issued photo that does not have to come from the federal government as first detailed.

Clarification Sept. 25, 2012: This post has been clarified to reflect details about who was discouraged from voting under a poll tax.

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Five Ways Courts Say Texas Discriminated Against Black and Latino Voters

by Lois Beckett and Suevon Lee ProPublica, Sept. 4, 2012, 10:59 a.m.

How does Texas discriminate against minority voters? Federal judges counted the ways.

Last Tuesday, a panel of federal court judges ruled that new district maps drawn by Texas' Republican-controlled legislature weakened the influence of Latino voters and in some cases evinced "discriminatory intent" against both Latinos and African Americans. Two days later, another panel of federal judges unanimously struck down a voter-ID law passed by the legislature in March 2011, arguing that it would disproportionately harm African-American and Latino voters. The judges did not address whether there was discriminatory purpose behind the legislation, but they noted that the legislature failed to pass amendments that would have mitigated the law's discriminatory impact.

Minority groups have outnumbered whites in Texas since roughly 2004, and 55.2 percent of the state's residents are now minorities, according to Census figures. As of 2011, the state's legislature was more than two-thirds white.

Texas Attorney General Greg Abbott's office declined to comment on the specifics of the rulings, but Abbott has promised to appeal both cases to the U.S. Supreme Court. In news releases, he said that the Supreme Court had already upheld voter-ID laws, and that the redistricting decision "extends the Voting Rights Act beyond the limits intended by Congress and beyond the boundaries imposed by the Constitution."

Both decisions hinged on Section 5 of the Voting Rights Act, which requires certain states with a history of racial discrimination in voting — including Texas — to prove that any changes in their voting laws or procedures do not hamper the voting rights of minorities. Enacted in 1965, the Voting Rights Act aimed to eliminate discriminatory voting practices that had long been used to suppress the black vote, particularly in southern states. Section 5 has been challenged, including in two cases pending before the U.S. Supreme Court, as an outdated provision that unfairly singles out certain states. The Court has not decided if it will hear the cases.

The rulings detailed several examples of discriminatory practices in Texas:

1. Lawmakers drew some districts that looked like Latino majority districts on paper — but removed Latinos who voted regularly and replaced them with Latinos who were unlikely to vote.

In the redistricting case, a panel of three federal judges found that Texas lawmakers had intentionally created districts that would weaken the influence of Latino voters, while appearing to satisfy the requirements of the Voting Rights Act.

In drawing Texas' 23rd congressional district, the judges found that "The mapdrawers consciously replaced many of the district's active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [Congressional District] 23's Anglo citizens. In other words, they sought to reduce Hispanic voters' ability to elect without making it look like anything in [Congressional District] 23 had changed."

In 2010, the 23rd district narrowly elected a Latino Republican, Francisco "Quico" Canseco. One email to a Republican mapdrawer, released during the legal battle over the maps, shows that Republicans were trying to increase the chances Canseco would be re-elected.

Lawmakers used a similar tactic in redrawing a state house district, modifying it "so that it would elect the Anglo-preferred candidate yet would look like a Hispanic ability district on paper," the court ruled. An "ability district" is one in which a minority group has the capability to elect representatives of its choosing. The judges concluded that the legislature had been trying to make this district appear as if it satisfied the requirements of the Voting Rights Act, while actually trying to benefit white voters.

Judge Thomas B. Griffith, writing the unanimous opinion of the three-judge panel of the U.S. District Court for the District of Columbia, called it "a deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote."

2. Lawmakers widened the gap between the proportion of the population that is Latino and African Americans and the proportion of districts that are minority-controlled.

In the years leading up to the 2010 census, Texas' population increased by 4.3 million people, 65 percent of them Latino. As a result, Texas gained four seats in Congress.

In their decision, the federal judges in the redistricting case noted that minority voters have no constitutional right to proportional representation. But the Voting Rights Act says states can't weaken the electoral power of minorities. So, the judges reasoned, if there is already a gap between the minority population of a state and its political representation, states can't let that gap grow wider.

In Texas, the judges observed, African Americans and Latinos were already underrepresented in Congress. Given the number of voting-age minority citizens in the state, Texas's old maps should have had roughly 13 congressional seats that represent districts in which minorities have a strong voice, the judges calculated. Instead, Texas only had 10 such districts.

Instead of narrowing this "representation gap" as the minority population grew, the legislature increased it.

With four additional congressional seats, Texas should now have 14 districts in which minorities have the ability to elect their chosen representatives, the judges concluded. But the state's new plan still included just 10 minority districts.

3. Texas removed economic centers and district offices from African-American and Latino districts, while giving white Republicans perks.

In defending its new maps, Texas argued that the districts had been shaped to help Republicans and hurt Democrats — a perfectly legal tactic — and that race had been irrelevant to its choices.

The Associated Press reported that the state's lawyer had argued before the court that "'a decision based on partisanship' is not based on race, even if it results in minority voters having less political influence."

The judges noted that while there was no "direct evidence" that "discriminatory purpose" animated the new maps, circumstantial evidence indicated the design of the new congressional districts "was motivated, at least in part, by discriminatory intent."

Texas' gerrymandering was not limited to manipulating the kinds of voters within districts. By reshaping a district, mapdrawers can determine whether key businesses, schools and tourist attractions are removed from a district or added to another.

The redistricting opinion dwelled at length on "unchallenged evidence that the legislature removed the economic guts from Black ability districts." African-American Rep. Al Green testified that the "economic engines" of his district — including a medical center, a university, and the Reliant Park sports mega-complex that includes the Astrodome — were removed. African-American Rep. Eddie Bernice Johnson's district lost a sports center and an arts district, while Latino Rep. Charles A. Gonzalez from San Antonio said that both a convention center and the Alamo were drawn out of his district.

These three members of Congress, and African-American Rep. Sheila Jackson Lee, all Democrats, also testified that their district offices were drawn out of their districts — a detriment because constituents want easily accessible district offices.

"No such surgery was performed on the districts of Anglo incumbents," the judges found. "In fact, every Anglo member of Congress retained his or her district office."

"The only explanation Texas offers for this pattern is 'coincidence.' But if this was coincidence, it was a striking one indeed," Judge Griffith wrote. He noted that Texas had argued that "without hearing from the members, the mapdrawers did not know where the district officers were located." But, he wrote, "We find this hard to believe as well. We are confident that the mapdrawers can not only draw maps but read them."

The judges noted that members of Congress who represented minority districts testified that they were largely shut out of the map-drawing process. At the same time, white Republican members asked for tweaks to their districts and were often accommodated. "Anglo district boundaries were redrawn to include particular country clubs and, in one case, the school belonging to the incumbent's grandchildren," the judges wrote, referring to requests related to the districts of Republican Congressman Lamar Smith, and Kenny Marchant, respectively.

Not all white lawmakers were happy with their new districts. Democratic Congressman Lloyd Doggett, who was forced to run in a new district as a result of the Republicans' maps, told the Texas Tribune last year that map plans "plunged a dagger into the heart of our community."

4. Divide and conquer: Texas "cracked" minority voters out of one district into three.

One common tactic of racial gerrymandering is "cracking" a minority community into different districts so it cannot elect a minority politician.

Looking at a State Senate district in Fort Worth, the judges cited testimony that lawmakers reshaped the district in a way that "cracked the politically cohesive and geographically concentrated Latino and African American communities," and placed those voters "in districts in which they have no opportunity to elect their candidates of choice."

The judges cited "well supported" testimony that African Americans in Fort Worth had been "exported" into a rural, "Anglo-controlled" district to the South, while Latinos on the North side of the city had been put into another white, suburban district, leaving the "reconfigured" Senate District 10 a "majority Anglo" district.

The judges rejected Texas' argument that "its decision to 'crack' [Senate District] 10 is best explained by partisan, not racial, goals," and concluded that the district map "was enacted with discriminatory purpose."

5. Texas passed a voter-ID law with requirements that would make it disproportionately difficult for African Americans and Latinos to vote.

A three-judge panel found last Thursday that Texas' voter-ID law discriminates against minorities, since the costs of obtaining the required identification would place a greater burden on low-income Texans, who are more likely to be minorities than white.

Although the state issues free election IDs, the cost of a birth certificate, one of the underlying documents needed for the ID, is $22 — and that's if voters can get to the right government office in the first place. At least one-third of Texas' counties don't have a state Department of Public Safety office, which issues state IDs.

"It is virtually certain that these burdens will disproportionately affect racial minorities," wrote Judge David S. Tatel for the unanimous panel of the U.S. District Court for the District of Columbia. He cited "undisputed U.S. Census data" showing that Hispanics and African Americans in Texas are more likely to be poor and more likely to live in households without a car.

"Simply put, many Hispanics and Africans Americans who voted in the last election will, because of the burdens imposed by [the new voter ID law], likely be unable to vote in the next election," he wrote.

The judges agreed ahead of last month's trial to keep out any evidence indicating motivations for the voter-ID law, so they didn't address whether or not there was intentional discrimination behind the creation of the law. But the 56-page decision pointed out that the Texas legislature could have made its law more accommodating by, among other things, waiving documentation fees for the election IDs, reimbursing travel-related costs or expanding DPS office hours to evenings and weekends — amendments that were either defeated or tabled.

Finally, the judges agreed with Texas that the state had an interest in preventing voter fraud, even though there is little documented evidence of current voter fraud in Texas. However, they noted that circumstantial evidence "could nonetheless suggest that Texas invoked the specter of voter fraud as pretext for racial discrimination."

The 2012 election

Whatever the Supreme Court's response to Texas' voter-ID law, Texans will not be required to present a photo ID to vote this November.

"As a result of the court's decision, Texas is not permitted to implement the photo ID law," Texas Secretary of State Hope Andrade announced in a news release last week.

As for the redistricting maps, Texas will use a set of interim maps drawn by federal judges in Texas. Those interim maps were part of a contentious battle that earlier went to the U.S. Supreme Court.