Fashioning a Constitutional Voter-Identification Requirement

• Author: Samuel P. Langholz
• Position: Samuel P. Langholz: J.D. Candidate, The University of Iowa College of Law
• Pages: 08

Samuel P. Langholz: J.D. Candidate, The University of Iowa College of Law, 2008; B.A., Washington and Lee University, 2002. I give a special thanks to former Iowa District Court Judge Robert D. Wilson, a published member of Volume 66 of the Iowa Law Review, for suggesting the topic of this Note long before it was in the headlines and for providing immeasurable guidance throughout my law school career. This Note also benefited from an early conversation with Professor Spencer Overton, and I appreciate his generosity with his time. I am grateful as well for the efforts of the editors and writers of Volumes 92 and 93 of the Iowa Law Review, especially the editorial assistance of Kirsten Arnold, Lou Ebinger, Alison Guernsey, Brad Price, and Andrea Reed. Finally, I thank my wife, Kristin, for her love and support throughout this endeavor.

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I Introduction

Some have called it "a simple, commonsense proposal and a necessary safeguard against vote fraud."¹ Others have said it is "a solution in search of a problem"² and "a tawdry attempt by Republicans to suppress the votes of millions of Americans."³ In recent years, no election-law issue has generated such a divided response in legislatures around the country as the proposal that voters be required to prove their identity before voting.⁴ As some states have enacted voter-identification requirements into law,⁵ this bitter debate has moved from legislative chambers to courtrooms around the nation, where opponents have challenged the constitutionality of the new laws.⁶

This Note focuses on these challenges in an attempt to determine what sorts of voter-identification requirements a state legislature may pursue without offending either its state constitution or the U.S. Constitution. It begins in Part II by discussing concerns about voter fraud in the United States.⁷ Next, Part III traces the history of voter-identification laws, beginning with the first registration requirements and culminating with the recent strict legislation in state legislatures and Congress.⁸ Part IV then examines the legal challenges to the constitutionality of enacted voter- identification laws in state and federal courts.⁹

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Part V articulates the parameters of a constitutional voter-identification requirement. It begins by examining one of the strictest voter-identification proposals, a bill passed by the Iowa House of Representatives in 2006, ¹⁰ and then suggests several changes that would remedy the bill's potential constitutional defects.¹¹ This Note speaks not only to the Iowa Legislature, but also to any state legislature that is considering the implementation of rigorous voter-identification requirements and attempting to craft legislation capable of surviving constitutional scrutiny. Finally, this Note discusses the limits on a state legislature's ability to enact voter-identification requirements and concludes that the issue may ultimately be best addressed through congressional action.¹²

II Voter Fraud

Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. "The right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."¹³

The United States has a long record of fraud in its elections.¹⁴ From Tammany Hall, the notorious New York City political machine of the nineteenth century, to Mayor Daley's efforts in Chicago in the 1960 election, voter-fraud scandals have earned prominent places in our political history.¹⁵ Page 735 Allegations of voter fraud have also generated significant controversy in recent years, with some observers raising concerns of increasing fraud¹⁶ and others suggesting that such allegations are overstated and politically motivated.¹⁷ Resolving this debate over the exact extent of modern voter fraud is beyond the scope of this Note,¹⁸ but "[w]hile there may be disputes about the nature and extent of voter fraud, there can be no dispute that it occurs," even now in the twenty-first century.¹⁹

Modern voter fraud, which can be generally defined as "the corruption of the process of casting and counting votes," comes in various forms.²⁰ At its Page 736 simplest, voter fraud occurs when an ineligible person, such as a noncitizen or, in some states, a felon, casts a vote in an election.²¹ It also occurs when a single person votes more than once-either in multiple locations or in his own name and in the name of another eligible voter, a fictitious person, or a deceased person.²² Each of these types of fraud can occur either while voting at a polling place or by absentee ballot,²³ and each can be the act of an individual voter or an organized group.²⁴ Moreover, with the exceptions of felon voting and double voting in multiple locations,²⁵ each of these forms Page 737 of fraudulent voting is enabled by the "honor system" of voting prevalent in nearly all states until recent years.²⁶

Scholars disagree about the extent of voter fraud.²⁷ There has been little comprehensive and unbiased research conducted to analyze the extent of voter fraud²⁸-an analysis made even more challenging due to the difficulty of detecting many types of fraud.²⁹ Opponents of stricter identification laws have pointed to this lack of research as evidence that the laws are "unwarranted 'solution[s]' in search of a problem."³⁰ Others, however, have Page 738 argued that this focus on determining the magnitude of voter fraud is misguided because even "a small amount of fraud could make the margin of difference" in a close election and, moreover, "the perception of possible fraud contributes to low confidence in the system," regardless of the actual magnitude of fraud.³¹ This latter proposition, that ensuring "[c]onfidence in the integrity of our electoral processes" is a compelling reason for a state to enact voter-fraud legislation, was recently endorsed unanimously, though only in dicta, by the U.S. Supreme Court.³²

Perhaps no case better demonstrates both the significant extent of voter fraud in a recent election and the minimal fraud necessary to affect an election's result than the 2004 election in Washington State. The Washington gubernatorial election was decided by a 133-vote margin after two recounts and a lengthy election contest.³³ In the election contest, the court found that 1678 illegal votes were cast, including 1401 by illegal felon voters, 19 by deceased voters, 6 by double voters, and 252 by unregistered voters.³⁴ However, since there was no way to prove for whom the illegal votes were cast, the court upheld the election.³⁵ Thus, this case also demonstrates another danger of voter fraud: if it is not prevented before it occurs, there is typically no way to remedy its harm.³⁶

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Voter fraud is not confined to Washington State, however.³⁷ Since initiating its Ballot Access and Voting Integrity Initiative in October 2002, the U.S. Department of Justice has conducted over 300 election-crime investigations, charged 119 individuals with ballot-fraud offenses, and successfully secured 86 convictions.³⁸ Furthermore, the Committee on House Administration conducted hearings on voter fraud around the country and found numerous instances of fraudulent voting, including votes cast by deceased individuals and stolen from eligible voters.³⁹

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One form of voter fraud that has received special attention recently and deserves further mention is illegal voting by individuals who are not U.S. citizens.⁴⁰ Though allegations of noncitizen voting influencing close elections have been persistent for many years,⁴¹ critics were emboldened in 2006 when a Democratic congressional candidate in a hotly contested special election in California was recorded on tape telling a largely Hispanic audience, "'You don't need papers for voting.'"⁴² Though the candidate later claimed to have misspoken,⁴³ her statement fueled fears of noncitizens influencing U.S. elections.

Furthermore, the candidate's statement, whether intended or not, accurately stated reality. Since no mechanism exists for states to verify the citizenship of registered voters, noncitizens can register and cast a vote without any barrier.⁴⁴ But unlike voting in someone else's name, which is nearly undetectable, it is possible to eventually catch a noncitizen voter if the voter's citizenship status is later discovered by some other means.⁴⁵ Thus, Page 741 significantly more documentation of this type of voter fraud exists.⁴⁶Similarly, the government has prosecuted and convicted numerous noncitizen...