Could a Photo ID Law Hurt Representation at Polls?

The House of Representatives is set to vote on a bill that could require photo identification at the ballot box. Would it curb fraud or disenfranchise thousands? Tony Cox discusses the issue with Spencer Overton, a law professor at George Washington University and the author of Stealing Democracy: The New Politics of Voter Suppression and Mark "Thor" Hearne, academic adviser to the Carter-Baker Commission and national election law counsel for president Bush's 2004 campaign.

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TONY COX, host:

From NPR News this is NEWS & NOTES. I'm Tony Cox in for Farai Chideya.

Today, a controversial new bill before the House of Representatives could forever change the practice of voting in the United States. The Federal Election Integrity Act of 2006 would require all voters to present photo ID before voting by 2008.

In recent months, similar efforts have been waged at the state level including Georgia, Arizona, Missouri and Indiana, among others. The federal bill's sponsor, Republican Congressman Henry Hyde of Illinois, says his proposal addresses the growing concern over voter fraud at the ballot box.

Representative HENRY HYDE (Republican, Illinois): We don't want to disenfranchise anybody. We're trying to make the process more honest and people have more confidence in it. If there weren't 12 million illegal aliens in the country, all of them demonstrating some political awareness by these parades we're seeing - I think that we should take every reasonable step to safeguard the process.

COX: Again, that was Congressman Henry Hyde of Illinois. We get a different perspective, however, from Congresswoman Juanita Millender-McDonald of California, the ranking Democrat on the House Administration Committee. Millender-McDonald says the Federal Election Integrity Act would not only put a huge burden on states to fund free photo IDs, it also could potentially shut out thousands of voters, especially the poor.

Representative JUANITA MILLENDER-MCDONALD (Democrat, California) As we see this bill, it amounts to 21st century poll taxes; taking us back to before the civil rights bills were put into law. Because what it is suggesting - that Americans now need to go and get either a passport or a birth certificate. Passports costing $100. My constituents cannot pay $100 out of already very stretched income.

COX: That was Congresswoman Juanita Millender-McDonald of California. So how to handle the notion of fraud at the polls has become yet another instance of partisanship on Capitol Hill. To help us determine the facts, who's impacted and how, we are joined now by two people intimately knowledgeable about the issue of voting reform. Spencer Overton, professor of law at George Washington University and author of Stealing Democracy: The New Politics of Voter Suppression; and Mark Thor Hearne, academic adviser to the Carter-Baker Commission. He was also national election law counsel for President Bush's 2004 campaign.

Gentlemen, welcome to both of you.

Mr. MARK THOR HEARNE (Adviser, Carter-Baker Commission): Good to be here, Tony.

Professor SPENCER OVERTON (Professor of Law, George Washington University): Thanks so much.

COX: Let's start with you, Spencer. It seems that there are two tracks at issue here. One that impacts voting at the polls with a call for photo ID, and a second that affects registering to vote and needing certain ID there. Now given what happened yesterday in Georgia, where that state's attempt to enact voter ID was forestalled by a superior court. At the same time you look at a state like Indiana, where things seemed to be the most successful so far. Why has the issue been able to sustain itself in a place like Indiana and not at any of the other several states where it's come up so far?

Prof. OVERTON: Well, I think we're talking just about different judges. Right now we've got three states that have laws that require a photo ID to vote: Georgia, Missouri and Indiana. Courts in Georgia and Missouri have declared those laws likely unconstitutional, and the court in Indiana has upheld that law.

A slightly different requirement, as you know, Tony, involves Arizona, which requires proof of citizenship to register to vote. And then also the restrictions on voter registration groups in Ohio and Florida, and those have been halted as unconstitutional. So litigation continues in all of these states; really, the issue is up in the air right now.

COX: Mr. Hearne, you have worked hard in Missouri but the law there, as we've just indicated, is being challenged in that state and in federal court. On what grounds do you hope to prevail?

Mr. HEARNE: Well, I think these laws, Tony, are ones that enjoy broad public support, bipartisan support. Eighty-one percent of people polled nationally support the requirement of photo ID. It's just something that basically you have to do anywhere for a variety of things we do in society, whether it's opening a bank account, getting on a plane. It's the kind of thing that is a confidence-building measure.

Political scientist John Lott and two University of Missouri professors have studied the issue. They find that the impact on anybody when you provide free ID, you provide as in the Missouri case or the federal law two years to get a free ID before you have to use it to vote, this is the kind of thing that actually increases participation.

People like Ambassador Andrew Young have supported the concept of photo ID, as President Carter did on the commission and others. So this isn't a partisan issue, shouldn't be seen as such. It's the kind of measure that increases voter confidence in the process and it also increases participation.

COX: Let me bring you back in, Spencer. Charges of election fraud have commonly been used to justify both the federal voter ID law and strict registration guidelines at the state level. Is there tried and true evidence of election fraud even today?

Prof. OVERTON: Well, Tony, there really is a lack of evidence of fraud. While a photo ID requirement would exclude actually millions of legitimate voters -there are 20 million Americans who don't have photo ID - it would exclude very few improperly cast votes.

A statewide study of all of Ohio's top county election officials, for example, found that for every 2 million ballots cast only one improper vote was cast. So my concern here, Tony, is that photo ID advocates propose that we throw out the baby simply because the baby has a drop of bathwater on the baby's arm. Instead, we should focus on real tools that deal with the bathwater and not throw out the votes of 20 million Americans who don't have photo ID.

COX: What about that, Mark. Is it worth disenfranchising even one voter even if you are preventing 10, a hundred or a thousand times as many fraudulent votes from being cast?

Mr. HEARNE: Well, as a judge - a federal judge in Indiana found, not a single person will be disenfranchise by these voter identification requirements. In fact, they actually prevent voters from being disenfranchised by fraudulent votes. In 2004, we had Dick Tracy and Mary Poppins registered to vote. In St. Louis, we had Ritzy the dog registered to vote in 2000.

These are the kind of things where those voter rolls - right now the Department of Justice is suing Missouri because Missouri has the most polluted voter roll in the country. And the only way you prevent Ritzy the dog or Dick Tracy from casting that illegal ballot that disenfranchises a lawful voter is to require the voter to identify themselves at the poll. And this law also provides free photo ID to everyone. So it is not a burden, it is not a cost to participate in an election.

COX: One of the things that has been said about that is that in the absentee voting situation that we now have people are not required to provide photo ID. Would that be change as a result of this, Mark?

Mr. HEARNE: Well, I think that we should require identification also for absentee ballots; you could include a photocopy of your ID with that. I believe this federal law does have that requirement. It treats absentee ballots as well as in-person voting at polling places the same way. Everybody should be reliably identified before they cast a ballot.

We have issues, and I know the House had some hearings into the number of illegal non-citizens who were casting ballots. When we have close elections in this country, the people have to have confidence that it was lawfully decided by honest, legitimate voters, not non citizens and illegal people trying to participate in the process.

COX: So, Spencer, who does this hurt? Who does voter registration and voter photo IDs hurt?

Prof. OVERTON: Well, the data shows that in places like Wisconsin, 23 percent of senior citizens don't have a state-issued photo ID. Seventy-eight percent of young black men ages 18 to 24 don't have a driver's license. And the bill in Congress, Tony, would prevent voting by 97 percent of Wisconsin college students in dorms who lack a photo ID with a current address. So seniors, disabled Americans, people of color, poor people are excluded.

And let me just mention this, Tony, the biggest threat to a democracy is not American voters. The biggest threat is politicians who used gerrymandering and barriers to voting to maintain power. The United States is in the bottom 19 percent of all democracies in the world in terms of voter turnout. Photo ID requirements are just one more hurdle that politicians use to lower voter turnout.

COX: Let me put this to the both of you, because we talked initially about Henry Hyde's proposal coming before the House today. Given the ongoing battles at the state level over this issue of voter identification and registration, is it even likely, do either of you feel, that the proposed federal legislation has a real chance in the near term? Mark, you first.

Mr. HEARNE: Well, I think ultimately it will. I think that in the Senate they passed - well, they had a sufficient number of votes for the McConnell amendment as part of the immigration bill. That wasn't ultimately included. But there's certainly support for this kind of national reform. As I indicate, this is the kind of bipartisan reform - I mean people like Lee Hamilton, Democrat congressman from Indiana, as well as President Carter and others, have all supported the concept of reliable photo identification before somebody casts a ballot as well as proof of citizenship.

COX: What do you say, Spencer?

Prof. OVERTON: Actually, in states where this is passed, it's passed along party lines. Republicans have supported it, Democrats have opposed it. I was actually on the commission that Mark talks about and there was significant descent within the commission over this particular issue.

I'd also just like to note that, you know, we talk about photo ID being used commonly in our society, but it's comparing apples and oranges. Certainly it makes sense to prevent 10,000 travelers without ID from flying if we can stop one terrorist who will blow up the plane. But with voting, it's anti-democratic to exclude 10,000 legitimate voters just to stop one improper vote.

The purpose of voting is government of, by and for the people. And the existing evidence shows that a photo ID would thwart that goal because so many legitimate voters would be excluded.

COX: With regard to the president - the national elections this year - well, actually the state elections is really what I'm referring to - is it likely that any of this will be in place in time for the November 7th elections, do you think, Mark?

Mr. HEARNE: Well, it's certainly in place in Indiana. And Michigan right now has a Supreme Court case on that. Missouri, we still have to see. The verdict's out there as well as in Georgia. So Arizona does have their proof of citizenship requirement that's been upheld by a federal court.

So we certainly see that the states have made a lot of progress on this and I fully expect to continue progress in those states between now and '08.

COX: We have about 30 seconds. Spencer, do you agree that some of this will remain in effect by November?

Prof. OVERTON: I think it's a battle. We've got real problems in our democracy and we need to fix those real problems through tools that work. For example, we can affirm identity through affidavits; we can use computer technology to ensure that everyone on the voting roles is a U.S. citizen. And more importantly we need real reforms that open up participation to more Americans, like Election Day registration. We also need reforms that stop politicians from gaming the systems like procedures to ensure the elections are not thwarted through electronic voting machines.

COX: Okay. Spencer Overton, professor of law at George Washington University and author of Stealing Democracy: The New Politics of Voter Suppression. And Mark Thor Hearne, academic advisor to the Carter-Baker Commission and national election law counsel for President Bush's 2004 campaign. Gentlemen, thank you very much.

Mr. HEARNE: Thank you.

Prof. OVERTON: Thanks so much, Tony.

COX: Coming up, the president asks the U.N. to fight for freedom. Plus, a dire situation in Darfur has U.S. movie stars speaking out. We'll discuss these and other topics on our Roundtable next.

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