Testimony Before North Carolina Assembly Committee on Voter ID

March 13, 2013

Good afternoon and on behalf of the Brennan Center for Justice at NYU School of Law, I want to thank Chairs Moore and Lewis and the Committee for the opportunity to speak with you today on the important issue of requiring photo identification for in-person and absentee voting in North Carolina.

My name is Keesha Gaskins; I am a senior counsel with the Brennan Center. The Brennan Center is a nonpartisan public policy and legal advocacy organization that focuses on fundamental issues of democracy and justice. As part of our work within the Democracy Program, we promote policies to encourage free, fair, and accessible elections, improve the security of elections and maximize citizen enfranchisement and participation in the electoral process. Our work toward these goals has included extensive research and the publication of studies and reports, public education, assistance to state and federal policy makers and advice on electoral legislation; and — when necessary — litigation to protect the fundamental right to vote.

As part of this work, we have paid particular attention to the debate over strict voter identification laws. We have commissioned research on the number of citizens who lack certain forms of documentary proof of identity and citizenship. And we have participated as either amicus curiae or as party representatives in litigation over strict voter identification laws in Indiana, Georgia, Arizona, South Carolina, Texas, and Albuquerque, New Mexico. 

The Brennan Center believes that eligible voters should not be prevented from voting because of strict photo ID requirements. A strict photo ID requirement for voters in North Carolina is unjustified for a number of reasons: First, reasonable interests in improving ballot security are not meaningfully furthered by strict photo identification requirements. Second, strict photo ID requirements create serious and unwarranted problems for voters who lack photo identification. Third, proper implementation of a strict no-photo, no-vote requirement is a costly and serious burden on taxpayers and, as experienced in almost all other states passing these laws, will very likely result in protracted litigation.

A strict photo ID requirement for voters is unnecessary in North Carolina

Like many states, North Carolina's election administration systems are not problem-free. In last year’s election, North Carolina saw long lines for both early and Election Day voting. There were also reports of bloated voter registration lists that presented problems for election administrators. These are issues that can and should be addressed.

In enacting any legislation related to elections, this body has the heavy burden of determining what problem needs to be solved and whether the proposed solution actually serves to remedy that problem. In this case a strict photo ID requirement cannot address problems related to long lines, inaccurate voter registration lists, or voter malfeasance like double voting, felon voting, or vote buying. The only type of voter malfeasance that photo ID can address is voter impersonation. A photo ID requirement is the worst kind of electoral policy solution — it creates an illusion of security while offering no real solution to any identified problem with election administration, while simultaneously creating real consequences for many legal and qualified voters.

According to the North Carolina Board of Elections more than 21 million votes have been cast in North Carolina over the past 12 years. During that time only one case of voter impersonation occurred. And that is one case too many. Fortunately, North Carolina's election system and law enforcement agencies identified the problem and took appropriate action.

Voter fraud is rare and cases of voter impersonation are even more uncommon. There is no evidence of coordinated and systemic voter fraud that threatens America's elections anywhere in the country, and certainly no such evidence in North Carolina. A strict photo ID law will not improve North Carolina's elections, but we do know that many of North Carolina's voters and eligible voters lack the kind of identification required by such a law.   

Strict photo ID requirements will impose serious barriers for North Carolina citizens who lack photo identification

Brennan Center's research shows 1 in 10 eligible voters lack the necessary government-issued photo ID required by many no-photo, no-vote voter ID laws, including 25 percent of African-Americans and 18 percent of Americans over 65. This research is supported by the January 2013 findings of North Carolina's State Board of Elections, finding 612,955 registered voters who do not have a North Carolina state photo ID.

What is most telling about the Board of Elections data is what voters would be most impacted by a photo ID requirement. It's important to note that 82 percent of the voters that appeared on that list are active voters. Twenty-four percent are over 65 years old and 33 percent of the registered voters without ID were identified as African-American, Asian, or American Indian. According to US Census data those same minority groups make up only 23 percent of the overall voting age population of North Carolina.  

For a person who lacks photo ID, obtaining a new photo identification card can be resource-intensive. Certainly, any photo ID law would require that North Carolina create some mechanism for the ID to be free to any and all voters who require one. But the cost of underlying documentation to obtain a secure ID is costly, and for the 16 percent of North Carolina's citizen's currently living in poverty, possibly prohibitive. Voters will have to travel some distance to get to an ID-issuing office in order to have a photo taken to obtain an ID. For rural voters and the 6.5 percent of North Carolina's residents who reside in households without access to a vehicle the ability to access an ID-issuing office may be difficult. 

Assuring that voters are who they say there are is important and essential to conducting fair elections. There are, however, reasonable ways to confirm a voter's identity through documentation and mechanisms that are accessible by all voters.

Imposition of a strict voter identification laws will result in costly burdens to North Carolina's taxpayers

Strict voter identification laws are controversial and in almost every case where a state has passed a strict no-photo, no-vote voter ID law, protracted litigation has followed. To date, four states have imposed strict voter ID laws on voters: Indiana, Georgia, Kansas, and Tennessee — with Georgia, Indiana, and Tennessee having to defend those laws in state or federal court. In addition Alabama, Mississippi, Missouri, South Carolina, Pennsylvania, Texas, and Wisconsin have passed strict voter ID laws that have been stayed, are subject to delayed implementation or declared illegal under the Voting Rights Act or state constitutional law.

Because specific legislation has not been introduced in North Carolina this session, it is impossible to say what provisions may run afoul of state or federal law, but it is a mistake to presume that the Supreme Court’s 2008 decision in Crawford v. Marion County means that all strict voter ID laws would be constitutional in all circumstances. The acceptability of the burden on individual voters involves a fact-specific inquiry, including what exceptions to the photo ID requirement may be available, whether the photo ID requirement is extended to absentee voters and how flexible or restrictive the documentary requirements are for voters. Any legal inquiry would include a consideration of how expansive the lists of acceptable documentation beyond photo ID are, whether there is a reasonable opportunity for voters without ID to confirm their identity with a signature match or by executing a declaration of identity under the penalty of perjury.

Moreover, the cost of public education and outreach, a necessary and crucial component, is significant. It is costly to ensure that all voters are aware of any new requirements to vote and have access to the free IDs offered by the state. There is also the cost of the free IDs themselves. There are many estimates of the potential cost to North Carolina in imposing a strict voter ID requirement and the total burden on taxpayers will, of course, depend upon the final version of any such legislation, but the significant litigation, public education, and material cost cannot be avoided.

The Brennan Center thanks the Committee for this opportunity to speak to you today and applauds the effort of this committee to enact changes intended to improve North Carolina's elections. However, we urge this body to consider legislation that modernizes North Carolina's voter registration system rather than to impose a voter ID law that will unfairly and unjustifiably restrict access to the polls and potentially leave thousands of North Carolina citizens disenfranchised. The Brennan Center has publicly accessible proposals for Voter Registration Modernization and we encourage members of this Committee to review those options that can reduce election administration costs while improving the quality and security of North Carolina's elections.

Thank you again.