Picture perfect: a critical analysis of the debate on the 2002 Help America Vote Act.

• Author: Ruda, Gabrielle B.

"And all the while, the rising power of my vote, helping build democracy" (1)

The notion that every citizen should have the unimpeded ability to cast a vote in the federal electoral process is an axiom embedded in America's collective subconscious. (2) The Presidential Election of 2000, however, provided a stark illustration of how easy it is to disprove the principle of Americans' inherent right to vote. Discrepancies and flaws in procedural policies for the administration of the election silenced thousands of voices in the State of Florida. (3) The wide-scale disenfranchisement of numerous citizens highlighted the need for federal intervention into this long-neglected area of election law. (4)

The Help America Vote Act of 2002 (5) ("HAVA"), was designed to implement sweeping national election reform to remedy some of the ills that occurred in 2000. (6) One major cause of the breakdown of the electoral process in 2000 was the lack of uniform procedural guidelines for various aspects of the voting process. (7) Congress sought to provide such standards through the creation of HAVA, which was passed on October 16, 2002, by Congress and was signed into law by President Bush on October 29 of the same year. (8)

HAVA generally received a warm reception from the public because of the urgency of the need for legislative reform. (9) There are several provisions however, that have not received universal acceptance, including Section 303, (10) which deals with the identification requirements for voter registration, meant to reduce voter fraud. (11) Part of the Anti-Fraud provision requires that prospective voters provide valid photo identification, such as a driver's license, in order to register. (12) If potential voters do not possess a valid photo ID, they can use their Social Security number for identification instead. (13) If the registrant has neither a photo ID nor a Social Security number, the anti-fraud provision provides that she will be assigned a voter registration number based on a state-authored computerized voter list. (14) Further, first-time voters who register and cast a ballot by mail must submit with the ballot valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck, of other government document that verifies the name and address of the voter. (15)

This Anti-Fraud provision is highly contentious and was hotly debated during the months of Congressional negotiations over HAVA. (16) The fallout of the debate took place on the floor of Congress along predominantly partisan lines. (17) The House and Senate Republicans argued that the Anti-Fraud provision was necessary, including Senator Christopher Bond (R-MO), who said it was needed to "combat problems of votes being cast on behalf of dead people and dogs." (18) Democrats vociferously opposed the provision because of the obstacles to voting that it creates for lower socioeconomic groups and racial/ethnic minorities. (19) Senator Christopher Dodd (D-CT) responded, "While its humorous to talk about dogs who voted, it's not funny to talk about people who showed up and didn't, and were denied to do so." (20) Despite the deep ideological divide that separates Democrats and Republicans on this issue, the bill passed overwhelmingly in both the House and the Senate, (21) illustrating the Congressional consensus on urgency of the need for immediate reform of the electoral process.

After passage of the bill, the torch of opposition to the Anti-Fraud provision was passed to Civil Rights and Civic Participation Organizations. These groups propose that the implementation of the provision holds the potential to paralyze the strides made in voting rights legislation throughout the twentieth century, such as the establishment of voter equality for gender and racial minorities, (22) and deprives racial and ethnic minority groups and lower socio-economic groups (two categories which often overlap) of having their voices heard in the political process because these groups are the most likely to be without the requisite forms of ID. (23) Because of this opposition, the controversy over the Help America Vote Act of 2002 still continues and goes beyond the halls of Congress into the streets of America.

This Comment examines whether the Anti-Fraud provision provides a fair scheme for the identification process during voter registration, or if it inherently violates certain fundamental rights and freedoms of American citizens who wish to cast their ballot. Part I of this Comment provides a historical assessment of the institution of voting and how it came to be one of the most coveted rights within the framework of American democracy. Part I also examines the standard of review used by courts to determine whether a law violates a citizen's constitutional right to vote. Part II analyzes perspectives on whether the Anti-Fraud provision is the appropriate means required to achieve its stated objective of decreasing voter fraud, or whether the provision places an undue burden on individual rights. Part III argues that discriminatory infringements on voting rights need to be eliminated because the right of the citizenry to cast their vote in a federal election serves as the basis for all other rights. If this institution is handicapped in any way, the guiding principle that the United States government "[O]f the people, by the people, and for the people...." (24) is jeopardized. Part III recognizes, however, that voter fraud is a pervasive problem that needs to be addressed. This section asserts that a compromise needs to be achieved between both sides of the debate in order to make it harder to cheat but not harder to vote.

1. BACKGROUND ON CONSTITUTIONAL AND LEGISLATIVE MECHANISMS TO CHALLENGE DISCRIMINATORY LEGISLATION

   In the quest to achieve equality in the implementation of law in the United States, citizens are entitled to challenge the constitutionality of laws they feel are either facially discriminatory or that create an undue burden on the rights of certain groups of people in the course of their implementation. (25) There are several methods through which citizens can assert these challenges. One type of constitutional challenge can be brought if a statute wrongfully infringes on the fundamental rights of individuals. (26) Fundamental rights are derived from the Equal Protection Clause of the Fourteenth Amendment. (27) As part of the Equal Protection analysis, the United States Supreme Court interpreted the clause to encompass certain specific fundamental rights that belong to each citizen, which receive heightened protection from governmental interference. (28)

   A second constitutional basis for challenging a statute is to claim that the law imposes an undue burden on the rights of certain groups identified as "suspect classes." (29) The Court reads the Equal Protection Clause to mean that members of certain classes deserve special protection because their class has faced a history of discriminatory treatment. (30) If a court determines that a law imposes an undue burden on fundamental rights, or discriminates against a suspect class, that law will be subject to strict scrutiny review and will be struck down as unconstitutional if it does not meet the burden imposed by this standard. (31) Within a strict scrutiny analysis, the Court reviews the legislation in question to determine whether it furthers a compelling state interest and if the means used are narrowly tailored to achieve that end. (32)

   A third basis for statutory challenge can be derived from the Voting Rights Act of 1965. (33) Individuals bringing this challenge can argue that a statute or one of its provisions violates the protections afforded minority groups through the passage of the Voting Rights Act, which codified equal voting rights for all citizens, in accordance with the Fifteenth Amendment. (34)

   There are several avenues, therefore, through which parties can challenge such legislation as the Help America Vote Act of 2002. This section describes the manner in which a citizen could use the Voting Rights Actor the Constitution as a framework for analysis of the anti-fraud provision of HAVA. This section also surveys the development of the general concept of fundamental rights and the development of voting as a fundamental right. In addition, this section examines the evolution of suspect classes and the standard of review set forth by the Court as a means by which to measure the constitutionality of laws that are called into question as violative of the Equal Protection Clause. Finally this section examines the Voting Rights Act of 1965, which represents the union of basic civil rights with the constitutional right to exercise the vote.

   1. Constitutional Bases for the Assertion of Voting Rights

      1. Fundamental Rights Defined

      Certain rights that "have value so essential to individual liberty in our society" (35) permit the Court to review acts of other government branches that involve these rights. (36) These rights are referred to as fundamental rights, if they are "explicitly or implicitly guaranteed by the Constitution." (37)

      1. Voting as a Fundamental Right

         There are several amendments to the Constitution that establish voting as a fundamental right that can be claimed by all American citizens. The Fifteenth Amendment directly embodies this sentiment" "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, of previous condition of servitude." (38) The Nineteenth Amendment prohibits voting discrimination based on gender, stating, "The right of citizens of the United States to vote shall not be denied of abridged by the United States or by any state on account of sex." (39) The Twenty-Fourth Amendment outlaws the use of barriers such as poll taxes to impede voting, emphasizing the fact that a citizens' right to vote in any primary or election shall...