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Voter ID: Tamping Down Turnout

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The following piece was produced for the Huffington Post's OffTheBus by NYU School of Law's Brennan Center for Justice.

By Chisun Lee

You'd think that with a presidential election looming next year, people would pay more attention to the restrictive voter ID laws that keep popping up across the country. These laws will play a big role in determining who can and cannot vote in the 2008 election. And anyone who thinks the officials pushing strict new ID laws must have sound reasons might pause for a moment on the example of Justice Department voting rights chief John Tanner.

Last month, he said "statistically," ID requirements that disenfranchise the elderly who do not have, and cannot easily get driver's licenses, would not harm racial minorities, because "minorities don't become elderly the way white people do - they die first." He said "the math is," a measure that "disproportionately impacts the elderly has the opposite impact on minorities."

His reasoning won him a congressional grilling. A member from his boss's party demanded to know if his "statement was supported by empirical data." Tanner could only say, "I . . . apologize."

Yes, Tanner is the nation's top voting rights enforcer. He is also the one giving the green light to certain state voter ID restrictions proposed in the last few years, despite warnings from his veteran staffers that these laws would unfairly and impermissibly restrict the right to vote. Proponents insist the new measures are necessary to combat rampant "voter fraud"--a claim that holds up as well as Tanner's "math."

This reasoning will be tested in a Supreme Court battle this term over Indiana's new voter ID law and some dozen others waiting in the wings. Depending on the outcome, millions of voters could face ID restrictions in the 2008 presidential election.

Indiana's law is among the most severe of the new genre. It forbids citizens from casting a regular ballot if they cannot produce an unexpired, government-issued photo ID that matches registration records. Utility bills and other documents previously allowed for identification would no longer be valid; neither would military IDs or even Congressional IDs.

The widespread adoption of ID restrictions could effectively bar millions of citizens from voting. Over 10 percent of Americans lack a current driver's license, passport, or comparable photo ID, according to a 2006 survey analysis by the Brennan Center for Justice. Certain groups are more likely not to have ID: the elderly, for instance (over 6 million nationally lack ID), the poor (15 percent of adults earning less than $35,000 annually), and racial minorities (over 5.5 million African Americans nationally).

The majority of Americans who have ID may find it difficult to believe so many don't. But in Wisconsin, almost a quarter of seniors, 59 percent of Latinas, and nearly 80 percent of young black men don't have a driver's license. Obtaining ID can cost money and workday time and require supporting documentation - such as a birth certificate - that may be difficult or even impossible to get.

Federal appellate judge Richard Posner, who wrote to uphold the Indiana law , put it squarely: "[M]ost people who don't have photo ID are low on the economic ladder." Posner nevertheless opted to uphold the law, and thus propelled the case towards the Supreme Court, demonstrates the power of the voter fraud myth.

Supporters of ID requirements say they are necessary to stop voter impersonation at Indiana's polls. Yet as the state's lawyers concede, there has never been a single documented instance of voter impersonation in the history of Indiana. Nationally, voter impersonation happens about as often as someone gets killed by lightning - in the 2004 election in Ohio, for instance, once in 2.5 million votes. Maybe that's because voter fraud is already punishable by a $10,000 fine and five years in prison, and there's just very little to gain from pretending to be another voter.

Asked by the Indianapolis Star to explain the state's lack of impersonation evidence, Indiana Secretary of State Todd Rokita gave this Tannerist response: There is no proof of voter impersonation, because voter impersonation "is hard to prove." Rokita nonetheless insisted the ID law is sound policy "[w]hether you want to believe fraud exists or not."

But investigations into alleged voter fraud - from Missouri to New Hampshire to Wisconsin, and beyond - consistently reveal that the problem is bad bureaucracy not bad, or fraudulent voters.

Those who input data botch birth dates and misspell names. Computers and officials, failing to realize that people commonly share names or birthdays or sometimes both, flag mere coincidences as "fraud." Dead voters turn out to be alive. So-called "vacant-lot voters" often live in legitimate residences, but on property with outdated commercial zoning. And, most commonly, state databases don't keep track of voters who move or pass away.

These problems scream for solutions - mainly, better administration, which existing but under-implemented federal law already requires. But none has anything to do with people showing up at the polls pretending to be other people.

It might still be okay for Indiana to police an imaginary problem - Posner calls this "preventive action" - were it not for the constitutional protections for fundamental rights.

Requiring official photo ID is an exclusionary policy premised on a phantom menace. It won't fix real problems, but it will sacrifice real people's fundamental right to vote.

Chisun Lee is counsel at the Brennan Center for Justice at the NYU School of Law, which will serve as amicus in support of petitioners in the Indiana case and has just issued a new report, The Truth About Voter Fraud.