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Voter IDs and Election Law

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Roy A. Schotland
Professor, Georgetown Law
Tuesday, April 29, 2008; 2:00 PM

Georgetown Law School professor Roy A. Schotland was online Tuesday, April 29 at 2 p.m. ET to explain the Supreme Court's ruling on Indiana's voter identification law, examine its hearing on the "millionaire's amendment," and discuss the FEC and other aspects of election law.

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The transcript follows.

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Seattle: So, in theory, if a Democratic legislature wanted to combat voter fraud by requiring that all voters show an ID obtained at a welfare office stating that the person had applied for welfare status and either had been denied or accepted, that would be permissible under this ruling?

Roy A. Schotland: Probably the hypothetical you suggest would be found to be a discriminatory classification, and stricken down.

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North Bethesda, Md.: I'm a pretty liberal Democrat and an ACLU member (not card-carrying, as I leave it at home) but I think it is wrong that I can vote without showing any identification. All I have to do is verify my birthday and address.

I know my best friend's birthday and address. As we are close in age (nine months' difference), I could vote has him (or he as I). This couldn't happen if we had to show an ID.

If the reasoning is that poor people don't have IDs, make the state provide a free, nondriver ID for those who can't afford it. Heck, I got IDs for my children in Maryland for $5 each. No state will go broke waiving this fee if the person claims inability to pay.

Roy A. Schotland: You put your finger on the problem: How hard is it to get the ID? Indiana's requirements, in just about everyone's view, are the strictest in the U.S. Indeed, in Justice Breyer's dissent yesterday, he noted how reasonable the requirements are in Florida and Georgia. So, question isn't whether ID can be required -- the question is what the burden is for getting an ID.

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Austin, Texas: I've read the arguments on both sides and tried hard to be sympathetic to the Democrats' concern. (For the record, I'm a left-leaning, fiftysomething, white female Clinton supporter.)

However, it's 2008 -- I fail to see the big deal about this issue. Sounds like a stereotypical Democratic doom-and-gloom, knee-jerk response to me.

Roy A. Schotland: You make a valuable point in suggesting the doom/gloom may be overdone. But first of all, we're likely to see more statutes passed, with very strict requirements, like Indiana's strictest-so-far. Second, the Indiana statute is part of a national epidemic, like Florida's new one that has caused the League of Women Voters to suspend all registration efforts. Lastly, the way yesterday's decision was written will make it much harder to challenge any law that's arguably an unduly burdensome restriction.

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Arlington, VA: I don't have a problem with requiring people to show ID to prove [they are] who they say they are. But shouldn't the state be required to provide such ID free of charge?

Roy A. Schotland: Like an earlier question, you're pointing to the right place-- the ease or difficulty of getting the ID. It isn't merely a matter of cost or free, it's also a matter of what documentation must be produced-- and Indiana's requirements are uniquely strict.

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Washington: Why do Democrats oppose this simple measure to protect the validity of elections? You cant have a bank account or do anything in society without an ID, and in this case the state will provide one for free.

On top of this, the Democrats basically have shut down the FEC at a time when they are raking in record numbers in fundraising. Not to mention the Democrats' long-standing programs to get illegal immigrants to vote ... illegally.

Is this what this is about? Trying to protect their strategy of illegals being able to vote?

Roy A. Schotland: I''ll take your second point first: The Senate's failure to confirm nominees to the FEC, which now has four if its six seats vacant, is at least as attributable to the Republicans as to the Democrats.

As for requiring ID, I hope answers just posted are responsive here.

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West Hartford, Conn.: Do you think the outcome might have been different had the Supreme Court examined a law subject to the Voting Rights Act -- for example, the similar voter identification law in Georgia? If not, does this end the battle regarding voter identification laws?

Roy A. Schotland: As noted in an answer just posted, Georgia's law was pointed to by dissenting Justice Breyer as a dramatic contrast with the strict Indiana statute.

As for whether the suit would have won if brought under the Voting Rights Act, I only can say that's a wonderfully imaginative point, not seen in the rafts of comment about yesterday's decision or earlier writing. Without having time to think it through, let me just say that I expect the reliance on constitutional grounds was the likeliest path.

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Chambersburg, Pa.: Why are conservatives so afraid? If someone wants to cheat, they will. Forged IDs are part of this country -- just ask most high schoolers in the suburbs, and most illegal immigrants. The cheaters will cheat. Is there any evidence that illegals have voted in any quantity, either teens or immigrants?

Elderly people who do not drive have a real problem complying, especially if their health is fragile. How do we guarantee their enfranchisement? Don't have them sit in line for four or five hours at the DMV for a picture ID!

Roy A. Schotland: For the elderly, Indiana's uniquely strict law exempts them from the ID requirement: those older than 65 can vote absentee.

(And let's note: We don't have "voter fraud" at the polls, but everyone agrees that fraud in absentee voting is a definite problem. But Indiana's law doesn't touch where there is a problem, only where Indiana's never -- repeat, never -- had a problem and we have all but zero nationally, for many generations.

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Walla Walla, Wash.: I am student at Whitman College studying election law. I am wondering how is it the Court can uphold barriers to voting, such as the Indiana ID law, and still proclaim that American citizens have a right to vote?

(Right to vote in Reynolds v. Sims, Wesberry v. Sanders, Yick Wo v. Hopkins ... Article 1 Section 2)

Roy A. Schotland: All rights are subject to some regulation. The most famous example is that you can't shout "fire!" in a crowded theatre. Or, despite our protection of political speech, a candidate can't drive a loudspeaker truck through residential neighborhoods in middle of night.

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Washington: Professor Schotland: had you for legislation in 1982 and you were quite entertaining. I think you enjoyed my story about a Long Island congressman who accidentally voted in favor of child porn. Does Indiana make a difference? If they want photo IDs, they get photo IDs but that doesn't mean everyone else has to, right?

Roy A. Schotland: Grand to hear from alum, please do send me e-mail so we can continue. As for your question, photo IDs absolutely can be required (and at least so far that's not challenged, although many people don't like it). The question is how hard it is to get an ID. The Indiana statute wouldn't have been litigated if weren't not only strict, but strictest in the U.S., in what it required to get ID.

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Ankeny, Iowa: Does Indiana provide an ID for free? If it doesn't, then at least technically wouldn't this qualify as a poll tax which violates the 24th Amendment? Or, does this situation not apply because it is a fee rather than a tax?

Roy A. Schotland: Good for you -- the poll tax decision, Harper in 1966, is all over yesterday's opinions and much discussion of the case. Indiana treated indigents separately, but they still had the burden of a separate trip, apart from voting, to get the ID. Back at the Supreme Court's oral argument, one question was something like "why couldn't Indiana provide IDs either at the polling place -- or at least somewhere not too far from the various precincts -- on Election Day?"

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Arlington, Va.: How did this even make it past the first judge? It seems like an open-and-shut case, besides the fact that it will only allow legal citizens to vote (which Democrats don't like).

Roy A. Schotland: First, the statute was upheld at trial court, intermediate appeals (2-1) and now 6-3 in the Supreme Court. Second, as I hope is very clear from prior answers, the issue isn't whether photo ID can be required, but rather how hard it is to get photo ID.

In Indiana it's uniquely hard, though quite a number of states require photo IDs.

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Ankeny, Iowa: What about Florida's ID law caused the League of Women Voters to suspend their activities there?

Roy A. Schotland: Good question. The Florida statute fines anyone who gets voter registration forms and then fails to turn them in. The League is, of course, entirely a volunteer organization, with many superb volunteers but maybe some who are elderly and may not be flawless. The law is also unclear about whether the fines mount up, form by form, or are capped. That's why it's now in federal court. Stay posted!

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Woodbridge, Va.: If voter fraud is not a problem, as opponents of the Indiana law claim, why do we so often find dogs registered to vote, addresses with more voters than possibly could live in one location and voter addresses that simply do not exist?

I'll concede the dead still may be on the rolls because of sloppy election office procedures, but there have been too many cases of bogus registrations to think they were just a prank. Has anyone cross-checked these registrations to see if anyone actually voted in their name?

By the way, Philadelphia has almost as many voters registered as it has residents (more than 97 percent). Either they are the most civic minded city in the country (yeah right) or something is going on. Unfortunately we'll never know, because the last time anyone tried to look into it (Republican poll watchers in 2002) they were beaten senseless while the mayor's police department looked the other way.

Roy A. Schotland: You're certainly right that there are problems of election fraud, but this statute aims only at fraud via an ineligible person showing up to vote, perhaps impersonating an eligible. Indiana could point to zero instances of that problem, and even nationally there are either zero or all-but zero, unless you go way back.

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Washington: What specifically about Indiana's requirements are so hard? How does it differ from, say, applying for a job where I either have to have a passport or two forms of government issued ID?

Roy A. Schotland: Many states are satisfied by a recent utility bill or similar item showing where you live. Indiana's requirement of a birth certificate has been almost insurmountable for people from out of state, particularly the elderly ... and then there's the poor soul whose records were at a city building that burned down...

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Washington: So, assume that in the future that a state requires that all voting be electronic. Would that be subject to an equal protection challenge? (Some don't have an Internet connection.) Moreover, what if that state then decided to actually make people travel to a polling place. Surely, that would be challenged as a burden (some can't drive or don't have a car). Isn't it somewhat odd to look at each incremental change in the voting process to determine if there's an undue burden?

Roy A. Schotland: There's no question there are incidental burdens -- like having to pay for a postage stamp to send a letter to editor or to a public official. We won't have electronic voting (though some has been tried) until we're beyond the "digital divide" between those who use computers and those who don't. As for requiring travel, we do in fact require at least some travel to get to polling places in rural America. And people help one another to meet that burden, and candidates/parties/etc. help, right?

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Illegals don't vote: A couple people have slid in comments about the Democrats wanting undocumented people to vote. I don't think any undocumented person even would attempt to vote, and the Democrats do not support non-U.S. citizens from voting.

Roy A. Schotland: Thanks -- I agree and hope everyone will agree that both parties have some people who will use anything to help their party, and then large majorities who aren't that way. The Indiana statute was passed on a 100 percent party-line vote, but the Democrats' opposition stemmed from their view that the statute was unduly restrictive, and the Republicans' view is that the restrictions aren't unduly burdensome. Note that Justice Stevens, usually one of the so-called "liberal" justices, wrote the lead opinion upholding the statute, although saying it might be attacked by someone who can show burden, not just claim there are burdens.

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Austin, Texas: How many illegal immigrants are trying to vote? Seems to me that if I were an illegal immigrant, the last thing on earth I would want is any sort of unnecessary contact with the government.

Roy A. Schotland: What can I say except to agree with you? A lot of people conjure up horrors.

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To me the most important paragraph: Was about the homeless person denied a ID because she did not have an address; consequently, she will be denied her right to vote under this law stating that there was no evidence how widespread the problem was. However, earlier in the opinion, Justice Stevens states that preventing voter fraud is a valid reason for the ID requirement, even though there was no evidence that in-person fraud is occurring. There is an inconsistency that a state is allowed to prevent real people from voting based on addressing a perceived problem.

Roy A. Schotland: Good for you, no question the Stevens opinion is not drawing wide applause -- it was joined by only Roberts and Kennedy. But then, Scalia's was joined by only Thomas and Alito (note where he was), and only Ginsburg joined Souter's dissent, Breyer writing solo. If a homeless person with the problem you suggest had been among the plaintiffs, this would have been a much better case. The case, as brought, had a lot of problems.

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Seattle: I just wonder why the GOP-ers aren't going after absentee-ballot voter-fraud. How can you prove that I didn't fill out the ballot for my Alzheimer's-patient mother? Or that I didn't do so for the wife I beat up yesterday?

Actually, I have a bigger absentee-ballot issue: We all happily seem to have given up the right to the secret ballot.

Roy A. Schotland: Secrecy of absentee ballots, so far as I know, is protected as fully as can be without eliminating such ballots, and I assume you agree they shouldn't be eliminated. People can choose to vote absentee or in person in the overwhelming majority of instances, right? As for why the anti-"fraud" efforts haven't gone after absentee ballot problems, I only can say that's probably the next wave.

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Washington: Submitting early ... thank you for taking my question, as nobody will seem to give me an answer.

You need some form of ID to do anything in this country, and in this case the government is offering one for free. So how can any call this a civil rights issue? Isn't it obvious why Democrats and liberal special interest groups are so opposed to this? There is a well-documented effort from the past ten years by the Democratic Party to illegally register illegal immigrants to vote, and get them to the polls. This is a fact. So this law will make it tough for them.

Also, why do you think that when the media refers to the court decisions they say Republican-appointed, Democrat-appointed, liberal etc.? Stop politicizing the court! Thanks.

Roy A. Schotland: I'm ot sure I'm aware of any "well-documented" effort, although am well aware of claims about such efforts. And this is a civil rights issue not because photo ID is required, but because of Indiana's uniquely high requirement for getting the ID. As for the media noting who appointed X judge, I agree with you in being very unhappy about that, but they're merely reporting facts and I'm afraid many people can't or won't agree that judges aren't just more politicians. In the mountains of writing and talk about Bush v. Gore, there's astonishingly little note that two of the "liberal" Justices, Souter and Breyer, agreed that the Florida recount system was unconstitutional; they ended up in dissent because they thought the case should be sent back to Florida, not because they wanted a shutdown of the whole recount process.

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Ann Arbor, Mich.: How important do you think it was that the plaintiffs in this case were the Democratic Party instead of finding an actual voter who was denied, as Posner points out in the 7th Circuit opinion? Do you foresee this court ruling that the Voting Rights Act is unconstitutional?

Roy A. Schotland: Re: This case's ripples on whether Voting Rights Act is constitutional, probably not, but that case is coming -- not about whole VRA but about one section, Section 5, which imposes special requirements on parts of the country. As for how much difference it might have made if the plaintiffs included "live bodies" who could show that the statute's burdens were severe for them, it certainly would have been stronger case and might have won Stevens' svote, but many observers -- maybe most -- believe that even Indiana's strict requirements would have been upheld by this court ... whether or not that should have been the result.

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Long Island, N.Y.: From a legal standpoint, as long as a government were to provide its residents a free form of photo ID that would make them eligible to vote, I don't have a problem with this law.

The problem I have is that these new rules may be the result of an over-hyped problem -- that there are a lot of fraudulent voters showing up on Election Day to vote.

Errors on the election rolls are not necessarily indicative of a problem -- I moved from Suffolk to Nassau (next county over) on Long Island more than 10 years ago, and for years that address continued to get election/jury duty notices for me.

Are there any objective measures of how many fraudulent votes may have been cast in the past two presidential cycles.

Roy A. Schotland: I don't know what evidence is basis for your statements. All the studies I'm aware of -- and we don't yet have any that are thorough enough to be broadly accepted -- show very, very little fraud -- and none in Indiana -- if the fraud we're talking about is what the Indiana statute aimed at, i.e. impersonating someone else or claiming to be eligible although not.

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Bethesda, Md.: Two questions: When I was in college, I registered and voted in the district where I went to school. Had ID been required, I would not have had anything but my out-of-state driver's license and my college-issued student ID. What are the implications of this kind of ID requirement for the efforts to register students to vote?

Also, what if a state were to jack up the fees for government-issued IDs? What did the court say about the indirect relationship between the requirements for acquiring an ID and the right to vote? Can states be prevented from effectively imposing things like poll taxes and literacy tests that they cannot impose directly?

Roy A. Schotland: Your noting the impact on out-of-state students is an important point. The burdens and/or discouraging of turnout are obvious. As for fees: The whole case is about what can be required to get ID. There's an exemption for indigents, but as noted in an early answer today, they have a potentially considerable burden to get the ID, even with no fee.

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Ankeny, Iowa: Having not read the decision yet (65 pages long), I read that those who argued against the law had a great deal of difficulty finding anyone adversely affected by the law. If they did not have specific examples, then they would not have standing, as far as I understand. What specific cases did they cite? Why did the Justices believe these specific cases were not insufficient?

Roy A. Schotland: Fine questions, but I simply lack the time to answer. Doubtless the next few days and weeks will bring many, many articles aimed at just such questions.

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Plano, Texas: Should we expect to see more states with Republican-controlled legislatures passing stringent voter ID laws? I admit, I'm a hardcore conservative Republican. Voter fraud has been rampant in the past few elections, giving a huge advantage to Democrats. I'm all for clamping down on this crime, and if it means a few million poor, immigrant and elderly people can't vote, all the better. They're mostly Democrats, aren't they?

Roy A. Schotland: Sorry, I can't agree with your statements of what happens, nor your "all the better."

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Washington: The justices recognized that there are certain costs involved in obtaining the ID necessary to vote under Indiana's law -- whether that be in collecting the requisite documents or in traveling to sign an affidavit after the election. Mississippi's poll tax, which was the last to be overturned in 1966, was a mere $2 (the equivalent of about $15 today). Why isn't Indiana's law a back-door poll tax?

Roy A. Schotland: As some observers have written about yesterday's decision, we may have several justices now who would not go along with the 1966 poll tax decision. If so, I can't conceive of there being a majority for that. Poll tax is clear economic discrimination, distinguishable in many ways from the photo ID requirement.

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Washington: Professor, I'm a recent grad, a former Hill staffer, and a 10-year student of election law and voter issues. How do these guys do it? How can they be so selective with precedent? First off, voting's a fundamental right, so strict scrutiny applies. Second, the basic rule is one person, one vote. Third, we know minorities, seniors, and the poor lack state IDs and the time, funds, and transportation available to get proper ID. Fourth, there has been no known prosecution for individual voter fraud.

Ergo, access to official ID's including the fees and transportation costs -- not to mention time out of work taken to get the requisite IDs -- amount to a poll tax.

These six justices just committed a form of treason! Will Congress impeach them or will Congress, again, fail to address this and other fundamental problems with our election system?

Roy A. Schotland: No, it's not treason, however much you and I may disagree with the result and the reasoning. Let's hope Congress does act by amending the Help America Vote Act to set standards for what can be required to get a photo ID. Many states (not just a handful) do require one, and after yesterday more will do so. Let's focus on how to do it fairly.

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Springfield, Va.: Do you have any recent figures on how many U.S. citizens don't have picture ID? It seems that most of us who do have ID assume the number is vanishingly small, but I've heard it's several percent.

Roy A. Schotland: In Indiana, according to the District Judge who upheld the statute, an estimated 1 percent of voting age population (i.e. 43,000 people) lacked photo ID. National estimates obviously are far, far harder to make.

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Long Island, N.Y.: "All the studies I'm aware of -- and we don't yet have any that are thorough enough to be broadly accepted -- show very, very little fraud -- and none in Indiana..."

That was the point I was trying to get at -- are these laws intended to counteract a real problem that the states are facing (fraudulent voters on Election Day) or are they being passed by partisan legislatures in order to oput up just one more hurdle to voting?

Roy A. Schotland: So far, too many of the efforts for photo ID have gone on partisan lines, one side claiming the other supports fraud and the opposing argument being that the effort is to suppress turnout. There are real problems of voter fraud, e.g. in absentee balloting, and there are real problems of suppressing turnout, and we have got to work on both sides. This year's remarkable, unprecedented turnouts and new registrations are reason to be optimistic, and show what's bound to be support for improving our administration of elections, in all aspects.

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Dunn Loring, Va.: Is it fair to conclude from your comments that you're a Democrat?

Roy A. Schotland: Yes I'm a Democrat, and as my election law classes would tell you, I depart from the "party line" on many many issues, including almost all of campaign finance.

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Roy A. Schotland: Thank you for the opportunity to exchange views -- now ended.

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