The U.S. Senate passed, by a vote of 99-1, a landmark $3.5 billion election reform package on April 11th that requires states to upgrade their election systems. In many ways it is a remarkable bill that could lead the way to serious reform of the voting processes in the nation by providing federal funds for states to upgrade their election systems and by requiring improved procedures for counting disputed ballots. But the bill includes a critical flaw that has civil rights leaders across the country - and New Yorkers in particular - up in arms.
The step backward within the bill's great leap forward is its requirement that first-time voters who did not register in person use a driver's license or other proof of identity, such as a utility bill, to verify their identity. The requirement was pushed by Republican senators as an anti-fraud measure, and it seems simple enough - don't most of us have a driver's license or, at least, a utility bill? And, the law provides what looks like a safety net for voters who show up at the polls without proper identification. The voter is supposed to be allowed to vote by affidavit ballot. But many advocates, including folks with years of experience working in the electoral process, contend that this requirement will impose a serious burden on voters who are members of minority groups, immigrants and new citizens, and those who live in urban areas, particularly New York.
First, there is the straightforward practical concern. As many as 3 million New York City voters do not have a driver's license. Indeed, 1990 census data showed that less than 50 percent of New York City's voting age residents had a driver's license compared with 91 percent of the state's residents overall. Also, members of minority groups are far less likely to have a driver's license than whites; recently naturalized citizens (and new immigrants from Puerto Rico) are also less likely to have a driver's license. For many of those potential voters, it may also prove onerous for them to have another valid form of identification handy when they go to the polls. This requirement, then, could depress the voting power of New York City and members of minority groups.
Second, application of the identification requirement is likely to create a host of problems. An identification requirement will require poll workers to use their discretion and judgment. More discretion and judgment will be required when the voters use a form of identification other than a driver's license. Unfortunately, poll workers often get the rules wrong. The more complicated the rules, the more likely they will not be applied properly - and this set of rules could seem complicated. A study of New York City's 2001 general election by the New York Public Interest Research Group demonstrated that most poll workers did not know basic rules about where someone should vote if they moved or who could help a disabled person vote. This suggests that poll workers will not be able to apply an identification requirement properly. Under the bill, the first-time voters who fail to provide proper identification should be permitted to vote with an affidavit or paper ballot, with which they sign an affidavit promising that they are who they say they are. But, again, given the reliability of the poll workers, it is quite likely that significant numbers of voters could be wrongly turned away. In fact, New York election lore is full of stories about poll workers who do not know when someone should use such a ballot and denying voters access to such ballots.
The i.d. requirement also creates opportunities for discriminatory treatment. African-Americans have a history of being subjected to special scrutiny at the polling place - as have members of other minority groups and recently naturalized citizens. Stories abounded in Duval County, Florida of African-American voters being asked to show a form of identification - sometimes two - while white voters were allowed to sign in without presenting any i.d. Similarly, a survey conducted by the Asian American Legal Defense Fund found that in the 2001 New York City general election one in six Asian voters was improperly asked to show identification before voting.
Finally, there is no evidence that such a rule is needed. In even the closest elections, there is rarely any evidence of voter fraud at the polls. And, the experience of states with same-day voter registration suggests that identification is not needed to protect against fraud.
Any close election will seriously test how these rules are applied. The improper application will leave a cloud over the legitimacy of the election results, but it will also disenfranchise valid voters and dissuade citizens from participating in the political process. That is not the intention of this law, and it should not be. This Senate bill must now be reconciled with a House bill that was passed in December and does not include an identification requirement. It is not clear what will happen to the i.d. provision when the two bills go to conference committee, but advocates will be keeping a close watch to ensure that the law does not include this step backward.Susan Reefer is a Republican pollster and media strategist. She is based in New York City.