In the wake of closely contested elections, calls for laws that require voters to present photo identification as a condition to cast a ballot have become pervasive. Advocates tend to rely on two rhetorical devices: (1) anecdotes about a couple of elections tainted by voter fraud; and (2) "common sense" arguments that voters should produce photo identification because identification is required to board airplanes, buy alcohol, and engage in other activities. This Article explains the analytical shortcomings of anecdote, analogy, and intuition, and applies a cost-benefit approach generally overlooked in election law scholarship. Rather than rushing to impose a photo-identification requirement for voting, policymakers should instead examine empirical data to weigh the costs and benefits of such a requirement. Existing data suggest that the number of legitimate voters who would fail to bring photo identification to the polls is several times higher than the number of fraudulent voters, and that a photo-identification requirement would produce political outcomes that are less reflective of the electorate as a whole. Policymakers should await better empirical studies before imposing potentially antidemocratic measures. Judges, in turn, should demand statistical data to ensure that voter identification procedures are appropriately tailored to deter fraudulent voters rather than legitimate ones and do not disproportionately exclude protected classes of voters.
TABLE OF CONTENTS INTRODUCTION I. THE VOTER IDENTIFICATION LANDSCAPE A. Existing State Laws for Identifying Voters B. Photo-Identification Requirements to Vote II. THE SHORTCOMINGS OF ANECDOTE, ANALOGY, AND INTUITION TO JUSTIFY PHOTO IDENTIFICATION A. Misleading and Unrepresentative Anecdotes about Voter Fraud B. Flawed Analogies III. THE NEED FOR EMPIRICAL EVIDENCE TO BETTER UNDERSTAND FRAUD AND ACCESS A. Toward Better Data on the Extent of Fraud 1. Investigations and Prosecutions of Voter Fraud 2. Random Surveys of Voters 3. Examining Death Rolls B. Toward Better Data on Legitimate Voters Excluded by Photo Identification IV. THE LEGAL STATUS OF PHOTO-IDENTIFICATION REQUIREMENTS A. Burdening the Fundamental Right to Vote 1. Assessing the Voters' Burden Relative to the State Interest 2. Tailoring B. Photo-Identification Fees as Poll Taxes C. Abridging Voting Rights along Racial Lines D. "Individual Responsibility" in the Context of Democracy V. PHOTO-IDENTIFICATION SUPPLEMENTS AND ALTERNATIVES A. Supplements That May Enhance Voter Access 1. Free Photo Identification 2. Expanded Photo-Identification Distribution through Mobile Buses and More Photo Identification Offices 3. Provisional Ballots Counted When Photo Identification Presented 4. Election Day Registration B. Alternatives That Allow Voters Who Lack Photo Identification to Cast Ballots 1. Nonphoto Identification 2. Requiring Photo Identification at Registration Rather than at the Polls 3. Signature Comparison 4. Affidavits 5. Indelible Ink 6. Government Maintains Digital Picture/Biometric/Thumbprint 7. Better Election Administration Practices CONCLUSION INTRODUCTION
I served as a member of the Commission on Federal Election Reform, a bipartisan, private commission tasked with proposing solutions to America's most pressing election problems. Former Democratic President Jimmy Carter and former Republican Secretary of State James Baker co-chaired the twenty-one-member body, (1) and other commissioners included former members of Congress, cabinet officials, and university presidents. (2) On September 19, 2005, the "Carter-Baker Commission" released eighty-seven different recommendations, one of which proposed that voters produce a photo-identification card as a condition to casting a ballot. (3) I dissented from the proposed photo-identification requirement, as did two other commission members. (4)
The Commission's photo-identification proposal received extensive media attention and fueled a firestorm of similar proposals across the nation. (5) Georgia, Indiana, and Missouri have adopted laws making them the only states to prohibit citizens from casting ballots unless they produce valid, government-issued, nonexpired photo identification, (6) and bills that tighten voter-identification requirements have been introduced recently in Congress and the majority of state legislatures. (7) Polls show that eighty-one percent of Americans favor or strongly favor requiting voters to produce photo-identification cards before voting. (8) Several recommendations of the Commission's 2001 predecessor--the Carter-Ford Commission--were enacted into law in the Help America Vote Act of 2002, (9) and hopeful photo-identification advocates repeatedly cited the 2005 Carter-Baker Commission's recommendation to bolster their proposals. (10)
This Article is the first academic work to analyze photo-identification requirements in depth, and employs an empirical cost-benefit approach to expose the erroneous assumptions of conventional wisdom. (11) It argues that before jumping on the photo-identification bandwagon, policymakers should closely examine empirical data about the magnitude of voter fraud and the extent to which a photo-identification requirement would reduce participation by legitimate voters. While a small amount of voter fraud hypothetically could determine a close election, the exclusion of twenty million Americans who lack photo identification could erroneously skew a larger number of elections. (12)
No systematic, empirical study of the magnitude of voter fraud has been conducted at either the national level or in any state to date, (13) but the best existing data suggests that a photo-identification requirement would do more harm than good. An estimated 6-11% of voting-age Americans do not possess a state-issued photo-identification card, and in states such as Wisconsin 78% of African-American men ages 18-24 lack a driver's license. (14) By comparison, a study of 2.8 million ballots cast in 2004 in Washington State showed only 0.0009% of the ballots involved double voting or voting in the name of deceased individuals. (15) If further study confirms that photo-identification requirements would deter over 6700 legitimate votes for every single fraudulent vote prevented, a photo-identification requirement would increase the likelihood of erroneous election outcomes.
This Article is important because political sound bites and media reports, rather than comprehensive academic analysis, have shaped the photo-identification debate. As a result, many Carter-Baker Commission members, Justice Department officials, members of Congress, governors, state legislators, newspaper columnists, and average citizens have embraced flawed assumptions by relying on a story or two about voter fraud. While anecdotes about fraud are rhetorically persuasive, the narratives often contain false information, omit critical facts, or focus on wrongdoing that a photo-identification requirement would not prevent. Even when true, anecdotes do not reveal the frequency of similar instances of voter fraud.
The current popular debate has also relied on flawed analogies, with advocates asserting that photo-identification cards are commonly required to curb terrorism, prevent credit card fraud, and protect minors. They do not, however, explore why people are allowed to engage in many activities--in which concerns about fraud would arise--without photo identification, such as traveling by bus and subway, making credit card purchases via telephone, accessing pornography over the Internet, and voting via absentee ballot. More important, erroneous exclusion of legitimate participants carries greater costs in the voting context because assessing the will of the people as a whole is an essential objective of democracy.
Politicians and opinion leaders critical of photo-identification proposals regularly recite talking points about threats to voter participation by the poor and minorities but often fail to quantify this assertion or elaborate on the value of widespread participation. Widespread participation furthers democratic legitimacy by producing a government that reflects the will of the people and allowing diverse groups of citizens to hold government officials accountable for their decisions. (16) Various constitutional and statutory provisions promote broad participation by eliminating voter qualifications that many believed were reasonable, such as paying a two-dollar poll tax or exhibiting an ability to read. As the U.S. Supreme Court stated, "Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." (17)
This Article engages in a careful and meticulous analysis of the conceptual, empirical, and legal issues arising from photo-identification proposals.
In addition, the Article applies an empirical approach that has the potential to reframe various election law controversies. (18) Current scholarship often rests upon isolated democratic goals and unsubstantiated factual assumptions. Election law, however, involves competing values, such as access and integrity. Votes provide a metric that allows for costs and benefits to be quantified. Instead of relying on personal assumptions about how politics works, (19) scholars and lawmakers should use data to resolve controversies such as how many fraudulent voters relative to legitimate voters are excluded by photo-identification requirements, partisan challengers at the polls, restrictions on voter-registration organizations, and various methods of purging voting rolls.
This approach also helps in balancing access and fiscal restraint. For example, if voting lines during presidential elections average an hour, how much would it cost to reduce lines to thirty minutes, fifteen minutes, or five minutes? What...