Chapter 9 The Voter Fraud Myth

CHAPTER 9 THE VOTER FRAUD MYTH

LORRAINE C. MINNITE

I. The Changing Voter Identification Law Landscape

Voter identification laws continue to generate political controversy as a flashpoint for partisan conflict and competing notions of the right to vote. The stated rationale for these laws is that they deter voter fraud and improve voter confidence. Two-thirds of all states now require voters to show some form of identification in order to vote,¹ but it wasn't always this way. Before the 1980s, five states requested voters show some form of identification, usually a document with their name on it, but no state required documentary proof of identity or residency at the polling place.² The story of voter identification laws since then has been one in which they have become much more widespread and increasingly restrictive.³ Between 1980 and 2000, eight states added a variety of voter identification laws to their books that mostly moved beyond simply authorizing local election agencies to request identification if deemed necessary.⁴ The new laws were passed with bipartisan support, and none required that the identification be government issued or that it display a photograph. Usually, voters without identification could still vote a regular ballot if they were properly registered and signed an affidavit attesting to eligibility.

Following the disputed 2000 presidential election, Congress passed the Help America Vote Act of 2002 (HAVA). As was the case with the federal government's previous effort at election reform, the National Voter Registration Act of 1993 (NVRA), passed into law a decade before, states had to enact enabling legislation amending their election codes in order to formally adopt the new federal mandates. For many, especially those states where Republicans were contesting for power, the opportunity to tinker further with electoral rules proved irresistible. Photo identification laws were gaining in popularity with core supporters of the Republican Party in response to the propaganda efforts of partisan operatives to ratchet up the allegations.⁵ They moved front and center in competitive state-level battles for electoral advantage. Between 2002 and 2008, when the Supreme Court in Crawford v. Marion County Board of Elections upheld Indiana's restrictive voter identification law,⁶ 12 more states adopted new voter identification laws and three tightened their existing laws (see Table 9.1). A pattern of stark partisanship in the arguments for and against voter identification laws emerged, with Republicans introducing and adopting these laws in states with Republican majorities and unified control over state government, in the face of fierce opposition from Democrats.⁷

Sources: Lorraine C. Minnite, The Myth of Voter Fraud tbls.7.2, 7.3, at 141-49, (2010); Lorraine C. Minnite, Voter Identification Laws: The Controversy Over Voter Fraud, in Law and Election Politics: The Rules of the Game (Matthew J. Streb, ed., 2d ed. 2012); Voter Identification Requirements/Voter ID Laws, Nat'l Conf. of State Legislatures (Aug. 10, 2015), http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx; History of Voter ID (Aug. 6, 2015), http://www.ncsl.org/research/elections-and-campaigns/voter-id-history .aspx; Statistical Abstracts of the United States for multiple years; various state statutes.

Notes on Table 1

* means a law was passed but subsequently struck down by a court and therefore, was not in effect. (Year) indicates the date the law listed in the preceding column was implemented.

1. The classification of state voter identification laws is complicated by the numerous exceptions and exemptions states grant voters lacking the requisite document. This column identifies states that require rather than simply request voters show a government-issued photo identification to vote, with few exceptions or alternative options for verifying identity and/or residency.

2. Florida revised its voter identification law in every legislative session between 2003 and 2007, and again 2011, mainly to eliminate certain forms of acceptable identification.

3. Kentucky made minor inconsequential revisions to its ID law in 2002 and 2008.

4. Before the Shelby County decision, under the Voting Rights Act of 1965 (as amended), South Carolina was not permitted to implement changes in election law without first securing preclearance from the U.S. Department of Justice or from a federal court. In January 2012, the Justice Department rejected South Carolina's 2011 law, finding that it would disproportionately suppress turnout among minority voters. Post-Shelby County, South Carolina began enforcing the 2011 voter identification law.

5. Like South Carolina, Texas was required to "pre-clear" election law changes with the U. S. Department of Justice or a federal court under the pre-Shelby County Voting Rights Act of 1965. As of this writing, the Texas law has been suspended by a ruling of the U.S. Fifth Circuit Court of Appeals.

6. Arizona's voter identification law was established in 2004 by ballot initiative Proposition 200 as part of a package of changes to the state's electoral procedures (effective January 2005). The law was unsuccessfully challenged in federal court in 2006.

7. Michigan's voter identification law went into effect in 2007, when control of the state legislature was split between Republicans and Democrats. However, Republicans controlled both houses of the legislature in 2005 when S.B. 513 reenacted a 1996 voter identification law that had been blocked from implementation for nine years by Michigan Attorney General's Opinion No. 6930 finding the law unconstitutional. Democrats took control of the lower house in 2006. The following year, the Michigan Supreme Court overruled the attorney general's interpretation of the 1996 law and upheld S.B. 513 reenacting it.

8. Missouri first passed a voter identification law in 2002, requiring voters to show one of several different types of either photo or not-photo identification. In 2006, lawmakers attempted to tighten the requirements and enact a strict photo identification law. The Missouri Supreme Court struck down that law, finding it violated the state's constitution. See Weinschenk v. Missouri, 203 S.W.3d 201, 210 (Mo. 2006). Since then, lawmakers have attempted to get around the court ruling by putting a constitutional amendment before the voters on the ballot. In June 2011, Missouri's Democratic governor vetoed a bill needed to implement the amendment.

9. After the state passed a moderate voter identification law that resembled the HAVA standard, the City of Albuquerque enacted a more stringent photo ID requirement through a voter referendum. The city rule was struck down in ACLU v. Santillanes, and then upheld on appeal.

10. Washington state's polling place voter identification law was passed by Democrats in a conciliatory gesture following the contested 2004 gubernatorial election in which a Republican won with a razor-thin margin on the first ballot count, only to see his victory reversed and a Democrat prevail after a recount. It provides for a wide range of acceptable identification documents. Since most Washingtonians vote by mail, the application of the law is limited.

11. In response to the Mississippi state senate's failure to pass a photo identification law, the Republican secretary of state and a Republican state senator co-sponsored a ballot initiative to amend the state's constitution to require voters to present a government-issued photo ID in order to cast a ballot. The measure passed in the November 2011 election. It was implemented in 2014 following the Shelby County decision.

12. After Oklahoma's Democratic governor vetoed a photo identification bill, the Republican-controlled state...