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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Debating Voter ID: A Means to Increase Confidence in Elections

In 2005, the bipartisan Commission on Federal Election Reform led by former President Jimmy Carter and former Secretary of State James Baker concluded that our “electoral system cannot inspire public confidence if no safeguards exist to deter and detect fraud or to confirm the identity of voters.”1 As a result, the Carter-Baker Commission recommended that states adopt a photo identification system with three key features: 1) require voters to present a valid government-issued photo identification card; 2) provide identification cards free of charge to voters who do not otherwise have them; 3) allow voters who fail to provide the required identification to cast a provisional ballot, which will be counted if they later certify their identity.2

In November, Minnesota voters will be asked to approve a constitutional amendment to incorporate these three features into Minnesota’s election system.  Because we agree with the sensible recommendation of the Carter-Baker Commission, we believe Minnesotans should approve the proposed amendment.

A Real Problem

Although there is dispute over the magnitude of the voter fraud problem, there is, in the words of the Carter-Baker Commission, “no doubt that it occurs,” and in a close election, even “a small amount of fraud could make the margin of difference.”3

Minnesota’s current election system is especially ripe for fraud.  The state is one of only eight that allow voters to register the same day they vote.  Unlike other same-day registration states, Minnesota fails to administer simple fraud-prevention strategies, such as strict identification requirements or segregating same-day registration votes until they are confirmed.  Instead, Minnesota allows one person to vouch for as many as 15 voters who are not required to present any identification.4

Opponents minimize the evidence of voter fraud.  But by its very nature, evidence of fraud is anecdotal and difficult to quantify with precision.  As Judge Posner explained in Crawford v. Marion County Election Board, “the absence of [voter fraud] prosecutions is explained by the endemic underenforcement of minor criminal laws … and by the extreme difficulty of apprehending a voter impersonator.”5

While hard to detect, there is evidence of fraud.  For example, in 2010, a Minneapolis election judge observed organized efforts to assign registered voters to vouch for unregistered voters.6  And in 2008, according to data obtained from the state by the pro-Photo ID group Minnesota Majority, 6,224 voters who registered on Election Day provided addresses that could not later be verified by the U.S. Postal Service.7

Perhaps as damaging as the actual existence of widespread voter fraud, however, is the perception of fraud and the resulting lack of trust in election results. In Buckley v. Valeo, the Supreme Court remarked on how the appearance of corruption is “[o]f almost equal concern as the danger of actual” corruption.8  Appearances, the Court explained, are “critical” to maintaining “confidence in the system of representative Government.”9 Avoiding even the perception of voter fraud is similarly critical to maintaining confidence in America’s political system.

Increasing Public Confidence

For both actual and perceived problems with our election system, a photo ID requirement should be part of the solution.  Photographic identification is part and parcel to everyday life in America.  Getting a job, opening a bank account, seeing the doctor, and buying beer all require the presentation of photographic identification in order to prevent and deter fraud.

Photographic identification can play just as important a role in protecting an individual’s vote.  Presenting a photo ID when voting would largely eliminate many of the more common and obvious opportunities for fraud, including:

  • voting at multiple sites;
  • impersonating a voter, including a dead voter;
  • voting under a fictitious voter registration;
  • forging absentee ballots; and
  • voting by ineligible felons and noncitizens.

Because these opportunities for fraud are so obvious to the average voter, it’s no wonder that 64 percent of voters in an April 2012 Rasmussen poll “rate voter fraud at least a somewhat serious problem.”  By eliminating these very visible opportunities for fraud, photo ID would increase voters’ confidence in election results.  This confidence is critical to America’s representative system of government, regardless of the actual magnitude of voter fraud.

Legally Viable

As a constitutional amendment, if adopted, the proposed photo identification requirement would not be subject to a challenge under Minnesota law, but could be challenged under the United States Constitution or federal law. Based on similar legal challenges, including one rejected by the Supreme Court, the amendment is on solid legal footing.

The leading case is the Supreme Court’s 2008 ruling in Crawford v. Marion County Election Board,10 which upheld Indiana’s voter identification law against a challenge based on the 14th Amendment. The lead opinion by Justice Stevens emphasized that “[t]here is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters” and “public confidence in the electoral process has independent significance, because it encourages citizen participation in the democratic process.”11 These significant state interests were sufficient to justify the limited burden placed on some voters to obtain free photo identification cards in order to vote.12

Based on Crawford and similar cases, courts will likely hold that Minnesota’s interest in protecting the integrity of, and public confidence in, its election system is sufficient to justify any minor burden imposed by the proposed amendment.

Costs, Burdens Exaggerated

Despite broad bipartisan support, photo ID receives fierce opposition from left-leaning groups and politicians. Opponents argue that photo ID is too costly and it disenfranchises poor and minority voters who will have difficulty acquiring a photo ID.  Both objections are exaggerated.

Requiring a photo ID to vote will certainly impose some upfront costs but the substantial benefits from photo ID that we’ve already outlined more than outweigh its limited cost. Indeed, voters’ confidence in election results and our representative system of government easily justify the expected cost.

The main costs related to implementing photo ID are tied to providing free IDs and educating the public on the new requirements.  In fiscal notes prepared for various 2011 legislative proposals the cost estimates to provide a free ID in the first year range from $384,000 to $1.1 million.13  The cost drops to a mere $215,000 in subsequent years in even the high-cost scenario.  These fiscal notes estimate educational outreach costs at $2.7 million for the first election year, half that in the next election year, and less again in subsequent election years.

Opponents’ inflated cost figures assume substantial expenses that aren’t required by the amendment, such as electronic polling books and new computer systems, and ignore long-term savings to the election system such as the fact that photo ID could streamline same-day registration.

Attorney General Eric Holder summarized the disenfranchisement argument in a July speech before the NAACP.  Under Texas’ photo ID law, according to Holder, “many of those without IDs would have to travel great distances to get them—and some would struggle to pay for the documents they might need to obtain them.”  He then added, “We call those poll taxes.”

This overheated and racially charged rhetoric by Holder cannot be justified in light of the broad bipartisan support for photo ID, especially the support from Democrats like Jimmy Carter, a man who devoted much of his post-presidential life to assuring fair and honest elections across the globe.

Nor are disenfranchisement claims supported by the empirical facts.  In the two states with the longest history of photo ID—Indiana and Georgia—voter turnout actually increased after implementation.14  And, in Georgia, minority turnout increased far more than white turnout.

None of this is surprising when you consider nearly everyone going to vote already has a photo ID.  An American University survey of registered voters in Indiana, Maryland and Mississippi found that only 1.2 percent lacked a government-issued photo ID.15  In addition, higher voter turnout is a natural result when people gain greater confidence in the election system.

Any risk of disenfranchisement is cured by the proposed amendment’s provisions requiring the state to 1) provide free IDs and 2) establish a provisional ballot system to allow people to vote who don’t bring a photo ID on election day.

In the end, opponents’ claims that photo ID will be costly and disenfranchise voters don’t hold up.  To the extent there is a limited cost to implementing photo ID, the integrity of our elections and the continued success of our representative democracy are well-worth the investment.

Notes

Peter J. Nelson is the director of public policy and associate general counsel at Center of the American Experiment, a conservative public policy organization in Minneapolis.  His research, writing, and advocacy focuses on health care, energy and state budget issues.  He received his law degree from the University of Minnesota Law School where he was a member of the Minnesota Law Review.

Harry Niska practices business and securities litigation at Ross & Orenstein LLC in Minneapolis. He graduated from Concordia College and the University of Minnesota Law School. He previously clerked for the Hon. Roger Wollman of the U.S. Court of Appeals for the 8th Circuit and practiced at Kirkland & Ellis LLP in Chicago.

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