Protecting The Right To Vote: Testimony for the Committee on the Judiciary

Protecting The Right To Vote: Testimony for the Committee on the Judiciary

November 14, 2011

The assault on the right to vote witnessed in 2011 is historic in terms of its geographic scope and intensity.   Legislation enacted in states across the country to require government-issued photo identification and/or prove citizenship to register to vote, make voter registration more difficult, and curtail early voting is nothing short of blatant vote suppression, the likes of which has not been seen in generations. Absent denial of preclearance by the US Department of Justice in three states, stringent voter identification requirements will restrict voter participation in the upcoming presidential election in Alabama, Georgia, Indiana, Kansas, Mississippi, Tennessee, Texas, South Carolina, and Wisconsin, The list may yet expand as dozens of other states revisit strict voter ID legislation introduced this year in the 2012 legislative sessions. Voter identification initiatives may also be put on the ballot in Minnesota and Missouri.

These laws require that every voter present government-issued photo identification in order to cast a ballot.  And while courts have upheld the restrictions enacted in Georgia and Indiana, other states have now enacted photo ID provisions that exceed those that survived judicial scrutiny.[i]  Voters in Georgia must show a driver’s license, which need not be current, a photo ID from any entity of the US or state governments, a passport, a military ID, or tribal identification.  Acceptable proof of identity includes student identification from state institutions of higher learning. Indiana requires voters to present a photo ID issued by the federal or state government, including student ID from a state school.

But Wisconsin will only accept identification issued by the Wisconsin Department of Transportation, a military ID, passport, naturalization papers or tribal identification.  Student identification is effectively disallowed. And Texas only allows a driver's license, personal ID card issued by the state, military ID, passport or concealed handgun permit. Student identification cards were explicitly rejected by Texas lawmakers.[ii]

The vote suppressive impact of these measures is well documented. Indeed, the research demonstrating that students, African Americans, Latinos, young people, low-income Americans, the elderly and persons with disabilities are more likely to be blocked from voting as a result of such requirements has only been building over the last several years.[iii]  A disproportionate number of these Americans do not have the type of ID these laws require. For example, 18 percent of Americans over the age of 65, one- quarter of African-Americans, and 15 percent of low-income voters do not have a photo ID.[iv] Many young voters do not have a driver’s license, the most commonly accepted form of photo ID.[v]



















According to scholars, white voters are approximately 10 percent more likely to have driver’s licenses than non-whites.  Latinos, Asian Americans, African Americans, and naturalized citizens are statistically less likely to have access to five out of six other basic types of acceptable voter identification, as compared to whites and the native born. Asians and Blacks are over 20 percent less likely to have two forms of identification, as compared to whites, while Latinos are 13 percent less likely.[vi] A recent report from the Center for American Progress Action Fund shows that voter ID bills would lower Latino voter turnout by as much as 10 percent.[vii]

Wisconsin presents a vivid illustration of the problem. The Legislative Fiscal Bureau there has estimated that 20 percent of Wisconsinites do not have the necessary ID.[viii]  Research shows that among the Wisconsinites without the ID necessary to vote are over 177,000 elderly persons, 55 percent of African American men and 49 percent of African American women, 46 percent of Latino men and 59 percent of Latino women, 78 percent of African American men age 18-24, and 66 percent of African American women age 18-24.[ix]

Proponents of photo ID laws are quick to point out that their proposals provide for “free” ID for those without proof of identity.  The catch is that in order to get the “free ID” the voter must have all sorts of other documentation and identification, which many are unlikely to have, such as a birth certificate.  These documents cost money to obtain, such that obtaining originals or replacements in order to exercise the vote can amount to a poll tax. And getting to the DMV adds additional burdens that may in some states be insurmountable.  As Rep. John Lewis (D-GA) stated, “there are too many citizens that would be unable to afford the fees and transportation costs involved in getting government issued photo IDs.”[x]  

Real life examples of the problems these laws have created are now emerging. In Tennessee, citizens have had to wait in line for several hours in tremendous heat at DMVs to get ID, sometimes only to be sent away for having insufficient documentation.[xi]  A Wisconsin newspaper columnist recently received the following email from a reader:

How many of us can say we have voted for the past 83 years? As far as our family knows, my 101-year-old mother, Gladys Lassig Butterfield, has voted in every federal, state and local election since she turned 21. However, Scott Walker and the current Wisconsin Legislature have determined that she can’t vote as conveniently as she has in the past; she must apply for a voter ID.

Because she no longer has an unexpired driver’s license and her baptismal record isn’t acceptable as proof of her identity, she has had to apply for and pay $20 for a state certified birth certificate. She is not exempt from needing an ID as those in nursing homes are because my sister and I have been able to care for her in her home.

The next step is to take her in her wheelchair to the Department of Transportation to wait in line to have her picture taken. If she doesn’t request a free voter ID, she will have to pay an additional $28.

My mother is fortunate that she has someone to take her through this vote suppressing procedure. How many elderly or disabled residents do not?

Are Scott Walker and his followers deliberately making it difficult for the elderly, disabled, poor and young to vote? My mother thinks so.[xii]

At the same time, research has consistently shown that photo ID proponents mislead and dramatically misstate the incidence of voter fraud – the purported rationale for these laws.  They repeat the mantra of “fraud” without showing that a voter ID would avoid the misconduct that at times arises in our elections.  Simply put it would not.  Studies over the last several years have consistently shown that voter impersonation at the polls – the only type of misconduct that would be prevented by a photo ID requirement -- virtually never happens.[xiii]  Voter ID proponents typically conflate various types of election irregularities as “fraud” and propose photo identification as the only solution. These ID requirements would do nothing to address problems with absentee ballots, voting by persons disfranchised due to felony convictions, or problems in the voter registration system.  Yet these are the types of activities that are cited as justification for vote suppressive measures like strict photo requirements in nearly every instance.

An extensive analysis by Professor Lori Minnite showed that at the federal level, only 24 people were convicted of or pleaded guilty to illegal voting between 2002 and 2005, an average of eight persons a year.[xiv] Over 200 million votes were cast in federal elections during that three-year period.[xv]

State-level evidence of voter fraud, which Minnite culled from interviews, newspapers, and court proceedings, was also negligible. It included 19 people who were ineligible to vote—five because they were still under state supervision for felony convictions and 14 who were not U.S. citizens—and five individuals who voted twice in the same election. Even an intensive five-year investigation by the US Department of Justice under George W. Bush famously netted only 86 voter-fraud convictions. Most of these were for offenses like vote-buying schemes or ineligible voters registering to vote, not for voter impersonation at the polls.[xvi]

Given the severe fiscal crisis and budget shortfalls gripping most states, the focus on photo ID legislation this year is all the more baffling, and suggests that improper partisan considerations may be in play.    According to Indiana officials, production costs for 168,264 “free” IDs in 2010 exceeded $1.3 million; foregoing the usual $13 fee per card added another $2.2 million. Total costs reached almost $4 million.[xvii] The Indiana Bureau of Motor Vehicles has spent an additional $10 million to distribute free photo IDs since the law was put into effect.[xviii]  These figures do not include the millions of dollars states must invest in voter education, additional poll workers to ensure reasonable wait times, and poll worker training in order to comply with court rulings on ID laws. And expenses such as these could increase in presidential election years. In Wisconsin, the head of the Municipal Clerks Association testified as to how much of a strain the photo ID bill then under consideration would put on the local officials, and said if it was passed they would have to choose between spending resources to implement it or on providing services, positions and machinery for emergency operations in a timely manner.[xix]


“The 2008 presidential election saw a significant increase in voter turnout among young people, blacks and Hispanics. But as turnout among some other demographic groups either decreased or remained unchanged, the overall 2008 voter turnout rate was not statistically different from 2004.” Thomas File, Voting Analyst, Housing and Household Economic Statistics Division, U.S. Census Bureau.[xx]

While overall voter turnout was slightly higher than usual in November 2008, certain groups of Americans turned out in unprecedented numbers. Approximately 2 million more African-American voters, 2 million more Latino voters and about 600,000 more Asian voters voted in 2008 than in 2004, while the number of white voters remained unchanged. Young voters between the ages of 18 and 24 showed the biggest increase, reaching 49 percent in 2008, as compared to 47 percent in 2004.  African American youth increased their voting rate to 55 percent -- 8 percent higher than in 2004.[xxi] The overall African American voting rate increased 4.9 percentage points, from 60.3 percent in 2004 to 65.3 percent in 2008.[xxii]  Among Latinos, voting rose by 2.7 percentage points, from 47.2 percent in 2004 to 49.9 percent in 2008.[xxiii]

These constituencies may have constituted the margin of victory for President Obama in 2008. According to the Pew Research Center, “in the last three general elections - 2004, 2006, and 2008 -- young voters have given the Democratic Party a majority of their votes, and for all three cycles they have been the party's most supportive age group. [In 2008] 66 percent of those under age 30 voted for Barack Obama making the disparity between young voters and other age groups larger than in any presidential election since exit polling began in 1972.”[xxiv] Almost all African Americans voted for Obama – 95 percent.[xxv]  Latino support for Democrats increased by 14 points, “the biggest shift toward the Democrats by any voter group…For the first time, Latino voters emerged as a mobilized Democratic voting bloc in states across the country.” 67 percent of Latinos voted for Obama.[xxvi] Low income voters also voted for the President at a rate of 60 percent to 38 percent for Republican candidate Senator John McCain.[xxvii]

Anti-voter laws that disproportionately disfranchise these very groups were rammed through the states by Republican majorities in an unprecedented fashion in 2011.  Not only did several states manage to pass laws such as those that require government-issued photo identification in order to vote, political leaders made enactment a top priority in the 2011 legislative session. Texas Governor Rick Perry even deemed it “emergency legislation” that had to be dealt with before any other matters could be taken up. In Wisconsin, a voter ID bill was the very first piece of legislature taken up by the Republican leadership after Democrats fled the state in the fight over collective bargaining rights.

Apart from disfranchising voter ID laws, states have enacted other restrictive laws that restrict the franchise and threaten the integrity of our democracy.  For example, Florida has made it so difficult and potentially punitive for nonpartisan organizations to engage in voter registration drives that groups like the League of Women Voters have abandoned longstanding voter registration campaigns.  A number of states have curtailed early voting days, which helped increase turnout in 2008.  Maine legislators abolished the state’s decades-old system of Election Day Registration, responsible for extending the vote to tens of thousands of citizens, especially young people.[xxviii] Kansas passed legislation requiring voters to provide documentary evidence of citizenship in order to register to vote.  And the governors of Iowa and Florida rescinded their predecessors’ orders that allowed many persons with prior felony convictions to regain their voting rights.  Together, these measures greatly threaten the equality, fairness, and representative nature of our democracy.


There are a number of steps the federal government can take to mitigate the damage that may be caused by these new laws and make the system more accessible and fair for all Americans.

U.S. Department of Justice

Federal protection of the vote begins at the U.S. Department of Justice.  The Department’s recent requests for additional information from South Carolina and Texas on the racial impact of their new ID laws evidence the serious and rigorous inquiry required under Section 5 of the Voting Rights Act. Given the voluminous evidence of their retrogressive effect, the Department should deny preclearance.  The Justice Department must apply similarly vigorous review of the discriminatory impact of voter ID requirements in other states under Section 2 of the Voting Rights Act.

Deceptive Practices

One of the most troubling aspects of recent elections has been the proliferation of “deceptive practices” leading up to the vote.  Deceptive practices are those that seek to mislead voters about the voting process in such a way as to prevent them from voting, such as by providing blatant misinformation about where or when to vote. Legislation introduced in past Congresses to criminalize such activity merit renewed consideration in the run-up to the 2012 elections.[xxix] The Department of Justice and state and local law enforcement authorities and elections officials must at the same time vigorously work to prevent such activities and address them should they occur.[xxx]


Another act of voter intimidation repeatedly seen in recent elections is the attempt to “cage” and challenge the voting eligibility of persons in certain targeted communities. Congress should pass federal legislation banning caging. The Caging Prohibition Act of 2009 proposed by the 111th Congress,[xxxi] would have prohibited challenges to a person’s eligibility to register or vote based solely on returned mail or a caging list, and mandated that anyone who challenged another’s right to vote must set forth the specific grounds for their alleged ineligibility, based on first-hand knowledge.


In addition to taking measures that protect voters from suppression, Congress should take affirmative steps to improve the process for voters.   Congress passed the Military and Overseas Voter Empowerment Act (MOVE) [xxxii] in 2009 to try to address the numerous problems overseas and military voters confronted in exercising the vote. The new law allows for the electronic exchange of materials between election officials and overseas voters and requires that election officials send ballots to overseas voters at least 45 days before the election.

In its first go around, the MOVE Act made a small but not insignificant difference. [xxxiii] Use of technology in the transmittal of information and material varied widely by state; several states were unable to meet the required 45 day deadline, leading to effective enforcement actions by the Department of Justice.[xxxiv]  The Department must continue to be vigilant and aggressive in enforcing the MOVE Act.

National Voter Registration Act

The Justice Department can also make a major difference by aggressively enforcing Section 7 of the National Voter Registration Act, which requires public assistance agencies to provide voter registration services. According to an analysis by Demos,

Individual states clearly show the impact of enforcement activity.  The number of voter registrations at public assistance agencies has risen sharply in specific states following re-implementation work and litigation.  Most of the top ten performing states within the just issued 2009-2010 EAC biennial report –whether measured by absolute numbers of voter registration applications or by voter registration applications relative to the number of SNAP (Supplemental Nutrition Assistance Program) applications–are states where there has been enforcement activity or cooperative efforts to improve public agency registration.  For example, Ohio and Missouri, two states that were sued by the non-profit partners and entered into settlement agreements in 2009 to resolve their lack of compliance with public agency registration requirements, topped the charts.  Tennessee has been in the top three states since it entered into a consent decree with DOJ in late 2002.  Illinois, which entered a pre-litigation settlement agreement during the Bush Administration, also ranked high in terms of the absolute number of people submitting voter registration applications at public assistance offices. .. Under the Obama Administration, enforcement action under Section 7 of the NVRA has just begun.  DOJ entered a consent decree with Rhode Island in March 2011, too recent to show any impact in the current EAC report, and also filed a lawsuit in Louisiana this month.  The data in the current EAC report strongly underscore the need for the Obama DOJ to step up its enforcement efforts in this area.

Unfortunately, the data in the recent EAC Report also show that many states continue to ignore their responsibilities.  While voter registration applications have been increasing at agencies serving low-income Americans since 2005-2006, it nevertheless has dropped off by 57 percent since 1995. [xxxv]

Same Day Registration

“Same Day Registration” (SDR) greatly expands opportunities for Americans to participate in the electoral process and cast a ballot that will be properly counted by allowing citizens to register and vote on Election Day or during the period immediately preceding an election. States that allow for Same Day Registration consistently lead the nation in voter turnout.

That trend continued in the 2010 midterm elections. Average turnout in the nine SDR states and in the District of Columbia, which first implemented Same Day Registration in 2010, was nearly 6 percentage points higher than in non-SDR states.  SDR allowed almost 640,000 Americans to register and vote in the November 2, 2010 election.[xxxvi] Rep. Keith Ellison (D-MN) has recently introduced the Same Day Registration Act (H.R. 3316), which would make Same Day Registration available to all voters across the country.[xxxvii]

Felon Disfranchisement

It is critical that we stop the practice of disfranchising people who have committed a felony offense. 5.3 million Americans are currently denied the right to vote through felon disfranchisement; three-fourths of them are no longer incarcerated; 2 million have fully completed their sentences.[xxxviii] Sen. Russ Feingold (D-WI) and Rep. John Conyers (D-MI) have introduced the Democracy Restoration Act (H.R. 3335, S. 1516), which would provide voting rights to those voters who have been released from incarceration.

Voting Rights for the District of Columbia

The residents of the District of Columbia should have the right to vote and be represented in Congress. The Senate passed of the DC Voting Rights Act (H.R.157/S.160) in 2009. No vote was taken in the House of Representatives.

Non-Partisan Election Administration

Recent actions by the Democratic Caucus to encourage state election officials to pledge nonpartisanship in their administration of elections is also a positive step.  Conflicts of interest and partisan bias have been alleged by both Democrats and Republicans in the last several election cycles.  Pending adoption of truly nonpartisan election administration, as exists in many democracies around the world, elections officials must act impartially, with the highest integrity, and avoid any conflicts of interest that would diminish public trust in their neutrality, including affiliation with any candidate or campaign.


Congress and many state legislatures have endeavored to improve the accuracy and efficiency of our elections since 2000. Great advances have been achieved. The raft of vote suppressive bills that have been enacted around the country in recent months are undermining that progress and threaten to skew election results for parochial, partisan gain.  As America cries for job creation and economic security, this misplaced emphasis on an illusory problem is particularly deplorable.

Congress, clear-sighted state legislators, the US Department of Justice, elections officials, voting rights activists and concerned Americans must continue to fight against vote suppressive proposals and for legislation that affirms all citizens’ fundamental rights to vote and have those votes counted.  We must not allow this time to be recorded in history as one in which our democracy took huge strides backwards toward discrimination and exclusion.

[i] See Crawford v. Marion County Election Bd., 128 S. Ct. 1610 (2008); Democratic Party of Georgia, Inc. v. Perdue, 707 SE 2d 67 (Ga. Sup. Ct. 2011).

[ii] See NAACP Legal Defense & Education Fund, Inc. and the League of Young Voters Education Fund, “Comment Under Section Five of the Voting Act,” Letter to the U.S. Department of Justice (Sept. 8, 2011), available at The letter urged the Attorney General to reject Texas’ Voter ID law and noted that the bill would disenfranchise students who possess only student identification cards even when student identification cards are government issued.

[iii] Wendy R. Weiser and Lawrence Norden, Voting Law Changes in 2012, Brennan Center for Justice (Oct. 2011), available at

[iv] Citizens Without Proof: A Survey Of Americans’ Possession Of Documentary Proof Of Citizenship And Photo

Identification, Brennan Center for Justice (Nov. 2006), available at

[v] Brief Amicus Curiae of Rock the Vote, National Black Law Students Association, National Black Graduate Student Association, The Feminist Majority Foundation and The Student Association for Voter Empowerment Supporting Petitioners in Crawford v. Marion County Election Bd., 553 U.S. 181 (2008), available at

[vi] Matt A. Barreto, Stephen A. Nuño, Gabriel R. Sanchez, Voter ID Requirements And The Disenfranchisements Of

Latino, Black and Asian Voters, Prepared for presentation at 2007 American Political Science Association Annual Conference (Sept. 1, 2007), available at

[vii] Shakir, Faiz et al. eds., “In 22 Statehouses across the Country, Conservatives Move to Disenfranchise Voters,” Think Progress: The Progress Report (Apr. 15, 2011), available at

[viii] Bob Lang, Director, Legislative Fiscal Bureau of Wisconsin, “Memo to Member of Wisconsin Legislature,” (May 11, 2011), p. 4, available at

[ix] John Pawasarat, The Driver License Status of the Voting Age Population in Wisconsin, Employment and Training Institute, University of Wisconsin-Milwaukee (June 2005), available at See also Tanya Somanader, “Tennessee Agency Charges 86-Year Old Veteran An Unconstitutional Poll Tax to Obtain Voter ID,” (Oct 26, 2011), available at

[x] See Tanya Somanader, “Civil Rights Leader Rep. John Lewis: Voter ID Laws ‘Are A Poll Tax,’ ‘I Know What I Saw During The 60s’,” Think Progress (Nov. 3, 2011), available at

[xi] Linda S. Wallace, “Will Long Lines Sink Photo ID Law?,” State Defender (July 15, 2011), available at

[xii] Dave Zweifel, “Plain Talk: 101-year-old disgusted with Walker’s voter ID law,” The Capitol Times (July 22, 2011), available at

[xiii] See Justin Levitt, The Truth About Voter Fraud, Brennan Center for Justice (2007), available at; Lori Minnite, The Politics of Voter Fraud, Project Vote (2007), p. 3, available at See generally Lorraine C. Minnite, The Myth of Voter Fraud (Cornell University Press, 2010).

[xiv] Lori Minnite, The Politics of Voter Fraud, p. 3.

[xv] See United States Elections Project at the Department of Public and International Affairs at George Mason University,

[xvi] Lori Minnite, The Politics of Voter Fraud, p. 7.

[xvii] National Conference of State Legislatures, The Canvass (Feb. 2011), p. 2.

[xviii] Iowa State Association of County Auditor, A Report on Photo ID for Voting Purposes (Feb. 2, 2011), p. 7, available at

[xix] Dianne Hermann-Brown, President, Wisconsin Municipal Clerks Association, Testimony on SB6 (Jan. 25, 2011), available at

[xx] Voter Turnout Increases by 5 Million in 2008 Presidential Election, U.S. Census Bureau Reports (July 20, 2009), available at

[xxi] “Minority, Young Voters Pushed 2008 Turnout,” UPI (July 20, 2009), available at

[xxii] Mark Hugo Lopez, Associate Director, Pew Hispanic Center, Paul Taylor, Executive Vice President, Dissecting the 2008 Electorate: Most Diverse in U.S. History, Pew Research Center for the People & the Press (Apr. 30, 2009), available at

[xxiii] Id.

[xxiv] Scott Keeter, Director Survey Research, Juliana Horowitz, Research Associate and Alec Tyson, Research Analyst, Young Voters in the 2008 Election, Pew Research Center for the People & the Press (Nov. 12, 2008), available at

[xxv] Mark Hugo Lopez, Dissecting the 2008 Electorate.

[xxvi] Julia Preston, “In Big Shift, Latino Vote was Heavily for Obama,” The New York Times (Nov.  6, 2008), available at

[xxvii] Inside Obama’s Sweeping Victory, Pew Research Center for the People & the Press (Nov. 5, 2008), available at

[xxviii] This legislation was repealed by public referendum on November 9, 2011.  The margin of voters voting in favor of repeal of was twenty percentage points. See Eric Russell, “Mainers Vote to Continue Election Day Registration,” Bangor Daily News (Nov. 9, 2011), available at

[xxix] See Deceptive Practices and Voter Intimidation Prevention Act of 2009 (H.R. 97), introduced by Rep. John Conyers, and the Deceptive Practices and Voter Intimidation Prevention Act of 2007 (S. 453), introduced by then-Sen. Barack Obama.

[xxx] See “Election Protection Finds Problems Persist at Polling Places Across the Country ... Nonpartisan Coalition Urges New Congress to Implement Commonsense, Modern Reforms,” Lawyers’ Committee for Civil Rights, Press Release (Nov. 2010), available at; Clay Ramsay, et al., Misinformation and the 2010 Election A Study of the US Electorate, at the University of Maryland Program of International Policy Attitudes, available at

[xxxi] HR 103: Caging Prohibition Act of 2009.

[xxxii] Pub.L. 111−84, 123 Stat. 2190, H.R. 2647, enacted October 28, 2009.

[xxxiii]Moving Forward: 2010 OVF Post Election UOCAVA Survey Report and Analysis, Overseas Vote Foundation (Feb. 2011), available at

[xxxiv] United States Department of Justice Uniformed and Overseas Citizens Absentee Voting Act, Annual Report to Congress 2010, available at

[xxxv] Youjin B. Kim and Lisa J. Danetz, A Preliminary Analysis of the Public Assistance Agency Data Within the EAC 2009-2010 Biennial NVRA Report, Demos (July 13, 2011), pg. 1, available at

[xxxvi] Youjin B. Kim and Steven Carbo, Voters Win With Same Day Registration, Demos (May 26, 2011), available at

[xxxvii] See H.R. 3316. 112th Cong., 2011. The full text of the bill is available at See also Voter Turnout Increases by 5 Million in 2008 Presidential Election, U.S. Census Bureau Reports (July 20, 2009).

[xxxviii] The Sentencing Project, Felon Disfranchisement Laws in the United States, March 2011,