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Testimony at House Hearing on Restrictive Voting Laws

Testimony delivered to the House Judiciary Committee’s Subcommittee on the Constitution regarding restrictive voting laws and oversight of the Department of Justice.

Published: April 18, 2012

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United States House of Repres­ent­at­ives

Subcom­mit­tee on the Consti­tu­tion
Judi­ciary Commit­tee 

 State­ment of
Wendy R. Weiser
Director, Demo­cracy Program
Bren­nan Center for Justice at NYU School of Law

April 18, 2012

Mr. Chair­man and the Members of the Subcom­mit­tee on the Consti­tu­tion:

On behalf of the Bren­nan Center for Justice,[1] I thank you for provid­ing me the oppor­tun­ity to present testi­mony at this import­ant hear­ing.  Both the U.S. Depart­ment of Justice and Congress play crit­ical roles in ensur­ing free, fair, and secure elec­tions in Amer­ica.

A recent study I co-authored, Voting Law Changes in 2012, docu­ments the record number of bills intro­duced and passed this past year that restrict access to voting. [2]  Make no mistake: these sweep­ing voting law changes raise grave concerns.  Many of these new stat­utes were enacted in states covered by the Voting Rights Act’s Section 5.  These states must demon­strate that new voting laws do not improp­erly impact minor­ity citizens.  The U.S. Depart­ment of Justice has the duty to review those laws.  The Justice Depart­ment has appro­pri­ately exer­cised its oblig­a­tion to assure that these states follow the Voting Rights Act.  It has enforced the clear dictates of law—noth­ing more, noth­ing less.  The Depart­ment can and should do more to affirm­at­ively enforce crit­ical federal stat­utes protect­ing oppor­tun­it­ies for voter regis­tra­tion.  Congress, too, should step forward to modern­ize our ramshackle voter regis­tra­tion system.  Common sense, nonpar­tisan reforms could add all eligible voters to the rolls while cutting costs, redu­cing errors, and curb­ing any chance for fraud.  We should move past partisan “voting wars” and bring our systems into the 21st Century.

In my testi­mony today, I will focus on: (1) the recent state legis­lat­ive devel­op­ments affect­ing voting and elec­tions, includ­ing laws requir­ing govern­ment-issued photo ID to vote; (2) the impacts of the new laws, includ­ing those that are being examined by the Depart­ment of Justice and the courts; (3) the Depart­ment’s efforts to enforce federal voting laws; and (4) the need for addi­tional steps to improve the elec­tion system for all eligible Amer­ic­ans.                          

I.                   New Laws Restrict­ing Voting in the States

    For decades, our nation has expan­ded the fran­chise and knocked down old barri­ers to full elect­oral parti­cip­a­tion.  The last two years have seen an abrupt change in course, with a wave of state laws and legis­la­tion that create new restric­tions on voting access. These laws take many form­s—­from elim­in­at­ing elec­tion-day regis­tra­tion, to restrict­ing voter regis­tra­tion drives by community groups, to redu­cing the number of days for early voting and limit­ing the number of days for voter regis­tra­tion.

    As of today, during the 2011–12 legis­lat­ive sessions, twenty-four (24) laws and exec­ut­ive actions restrict­ing access to the polls were passed, and at least seventy-four (74) meas­ures are still pending in state legis­latures across the coun­try.

    The restric­tions fall into five major categor­ies: (1) require­ments that voters provide specific kinds of govern­ment-issued photo ID to vote or have their votes coun­ted; (2) require­ments to provide docu­ment­ary proof of citizen­ship in order to register and vote; (3) new restric­tions on voter regis­tra­tion; (4) cutbacks on the avail­ab­il­ity of early and absentee voting; and (5) actions perman­ently depriving previ­ously incar­cer­ated citizens of their right to vote.  Here is an over­view of recent state legis­la­tion impact­ing voting rights, grouped by subject area:

    a.      Restrict­ive Photo ID

      By far the most common elec­tion-related legis­la­tion intro­duced and passed in 2011 and thus far in 2012 is legis­la­tion requir­ing voters to produce certain forms of photo ID to vote.  Prior to 2011, only two states had imposed strict photo ID require­ments.[3]  During the 2011 and 2012 legis­lat­ive sessions, however, seven states have passed strict “no-photo, no-vote” voter ID laws for citizens who vote in person;[4] and three of those exten­ded the new photo ID require­ments to absentee voters.[5]  Missis­sippi simil­arly adop­ted a strict photo ID require­ment for all voters via a ballot meas­ure to amend the state consti­tu­tion.  Rhode Island passed a photo ID law that allows voters without ID to cast a ballot that will count if their iden­tit­ies are later veri­fied by signa­ture match.[6]

      Over­all, thirty-four (34) states saw bills intro­duced requir­ing photo IDs for voting.  Of the states that do not have voter ID laws, only three—Ore­gon, Vermont and Wyom­ing—­did not consider voter ID legis­la­tion this year or last.  In five states, governors’ vetoes preven­ted photo ID legis­la­tion from becom­ing law.[7]  In Minnesota, voters will consider a ballot initi­at­ive to require photo ID for voting in Novem­ber 2012; and Missouri voters may also consider a voter ID ballot initi­at­ive, depend­ing on the resol­u­tion to a legal chal­lenge. 

      In addi­tion, Virgini­a’s legis­lature recently sent a voter ID bill to Repub­lican Governor Bob McDon­nell, who just last week stated that he would not sign the law unless the legis­lature softened the require­ment to present a photo ID in order to cast a ballot.  His proposed amend­ments included an expan­sion of the list of accept­able IDs, an increase in the time voters have to provide the required ID, and a proposal to count the provi­sional ballots of voters who lack the required iden­ti­fic­a­tion after signa­ture veri­fic­a­tion.[8]

      b.      Proof of Citizen­ship

        At least seven­teen (17) states saw legis­la­tion intro­duced that would require docu­ment­ary proof of citizen­ship in order to register or vote.  Very few offi­cial docu­ments actu­ally estab­lish citizen­ship: birth certi­fic­ates, natur­al­iz­a­tion certi­fic­ates, and pass­ports are among the rare examples. Proof of citizen­ship laws passed this past year in Alabama, Kansas, and Tennessee. Alabama[9] and Kansas[10] will require all new voter regis­tra­tion applic­ants to produce docu­ment­ary proof of citizen­ship, while Tennessee[11] will require indi­vidu­als flagged by state offi­cials as poten­tial non-citizens to produce such docu­ment­a­tion.  Until this year, only two states (Arizona, through its contro­ver­sial Ballot Propos­i­tion 200, and Geor­gia) had passed proof of citizen­ship laws, and only one (Arizona) had such a require­ment in effect.[12]  In contrast, all other states rely on the affi­davit signed by a new regis­trant, under penalty of perjury, swear­ing that she is a U.S. citizen and that she meets all other voting eligib­il­ity require­ments.

        c.       Making Voter Regis­tra­tion Harder

          At least sixteen (16) states saw bills intro­duced to end highly popu­lar Elec­tion Day and same-day voter regis­tra­tion, limit voter regis­tra­tion mobil­iz­a­tion efforts, and reduce other regis­tra­tion oppor­tun­it­ies.  Flor­ida and Wiscon­sin passed laws making it more diffi­cult for people who move to stay registered and vote. Ohio and Maine, mean­while, elim­in­ated same-day voter regis­tra­tion, used by tens of thou­sands in 2008 alone, although the people of Maine voted to restore same-day voter regis­tra­tion,[13] and Ohio’s law is now being chal­lenged by ballot refer­en­dum in Novem­ber 2012.[14]

          Flor­ida, Illinois, and Texas passed laws restrict­ing voter regis­tra­tion drives and other community-based voter regis­tra­tion activ­ity.  Flor­ida enacted a law which effect­ively shut down regis­tra­tion drives that previ­ously registered hundreds of thou­sands of citizens in that state.[15]  Flor­id­a’s new law now requires that groups and indi­vidu­als who wish to help voters register first pre-register with the state, submit within 48 hours every voter regis­tra­tion applic­a­tion received, continu­ally submit extens­ive forms and reports, and keep track of every voter regis­tra­tion applic­a­tion they distrib­ute.[16]  While Texas law had already required private citizens to be depu­tized by a local elec­tion offi­cial before they could register anyone to vote, the new law now requires these indi­vidu­als to complete certain train­ing require­ments, which may include a final exam, before they can help register any new voters.[17]

          d.      Redu­cing Early and Absentee Voting

            At least nine (9) states saw bills intro­duced to reduce their early voting peri­ods, and four tried to reduce absentee voting oppor­tun­it­ies. Flor­ida, Geor­gia, Ohio, Tennessee, and West Virginia succeeded in enact­ing bills redu­cing early voting.  These cutbacks were proposed in spite of the fact that early voting was used by nearly one-third of all voters in 2008.[18]  Five states—­Flor­ida, Geor­gia, Ohio, Tennessee, and West Virgini­a—en­acted laws that shortened the early voting period.[19]  In the law that will be put before voters this Novem­ber, Ohio cut the state’s previ­ous early voting period of thirty-five days and elim­in­ated early voting on Saturday after­noon and Sunday.[20]  Flor­ida shortened the early voting period from two weeks to one, and elim­in­ated voting on the Sunday before Elec­tion Day.[21]

            e.       Making it Harder to Restore Voting Rights

              Governors Terry Bran­stad of Iowa and Rick Scott of Flor­ida both issued exec­ut­ive actions revers­ing previ­ously adop­ted policies of restor­ing voting rights to citizens with past felony convic­tions.[22] In Iowa, 80,000 citizens in the last six years had their voting rights restored under this now reversed policy.[23] In Flor­ida, about 150,000 citizens had their rights restored between 2007 and 2010.  In fact, up to one million people could have benefited from the prac­tice reversed by Governor Scott and his clem­ency board; based on the prior rates of restor­a­tion, we estim­ate that approx­im­ately 100,000 Flor­idi­ans would have had their voting rights restored by 2012 but for that exec­ut­ive action.[24]

              South Dakota recently passed a law impos­ing further restric­tions on voting by citizens with past felony convic­tions by disen­fran­chising persons on proba­tion.[25]  This new law adds to the state’s exist­ing require­ment that an indi­vidual complete any term of impris­on­ment or parole before his or her voting rights can be restored.

              II.                The Impact of the New Voting Laws

                The new laws signi­fic­antly alter the rules by which many Amer­ic­ans register and vote, placing new restric­tions on the ways citizens can register and requir­ing more admin­is­trat­ive steps in order to vote.  In Octo­ber, the Bren­nan Center estim­ated that these changes will make it harder for five million eligible Amer­ic­ans to vote.[26]  To put that number in perspect­ive, it is larger than the margin of victory in two of the last three pres­id­en­tial elec­tions.

                The litany of new state voting laws will have a dispro­por­tion­ately large impact on certain voter­s—espe­cially the young, students, the elderly, minor­it­ies, women, low-income, and disabled voters.  The new laws hit these groups hard­est for multiple reas­ons.  Some are less likely to have access to the type of docu­ment­a­tion required by the new laws, or lack docu­ment­a­tion with a current name or address.  And some may rely on meth­ods of voting and regis­tra­tion elim­in­ated or restric­ted by the laws at higher levels than the general popu­la­tion.  Below is some stat­ist­ical evid­ence of how each of these groups may be espe­cially affected by partic­u­lar laws that have been passed.

                a.      The Impact of Photo ID Laws

                Before examin­ing the data concern­ing the impact of the new photo ID laws, it is worth noting that not all photo ID laws are created equal.  Photo ID laws in place before the 2011 and 2012 legis­lat­ive sessions were by and large less restrict­ive than the current crop of ID laws in three key ways: they accep­ted more forms of ID; they provided more exemp­tions and failsafe options for those without conform­ing IDs;[27] and they made it easier for voters without photo IDs to obtain such IDs, through affirm­at­ive educa­tion and outreach and, in Indi­ana’s case, by having far greater citizen access to ID-issu­ing offices.  In contrast, for example, unlike in Indi­ana and Geor­gia, the new South Caro­lina and Texas laws exclude state-issued employee photo IDs, and the new laws in Kansas and Wiscon­sin provide no mech­an­ism for any voters without photo ID to vote a ballot that would count at the polls.  Unfor­tu­nately, this means that there is a far higher like­li­hood that lack of ID will prevent citizens in these states from voting.

                As the Bren­nan Center published in our report, Citizens Without Proof, based on a national survey conduc­ted by the Opin­ion Research Corpor­a­tion, 11% of voting-age Amer­ic­ans do not have the kinds of current govern­ment-issued photo ID required by the most restrict­ive new iden­ti­fic­a­tion laws passed this past year.[28]  The numbers are far worse for specific popu­la­tions.  For example, 18% of 18–24 year-old citizens and 18% of citizens 65 or older lack current govern­ment-issued photo IDs.[29]  Among African Amer­ic­ans, approx­im­ately one in four do not possess such ID.[30]  And accord­ing to another study, 78% of African-Amer­ican men aged 18–24 in Milwau­kee County, Wiscon­sin do not have a driver’s license.[31]

                Other inde­pend­ent empir­ical stud­ies have come to the same conclu­sions.  For instance, the 2001 Commis­sion on Elec­tion Reform co-chaired by former Pres­id­ents Carter and Ford found that between 6 and 11 percent of voting-age citizens lack driver’s licenses or altern­ate state-issued photo IDs.[32]  A 2008 survey of registered voters in eight­een states found that 8% lack a valid, state-issued photo ID with their current address.[33]  A 2007 Indi­ana survey found that over 13% of registered Indi­ana voters lack a valid Indi­ana driver’s license or an altern­ate Indi­ana-issued photo ID, and that state resid­ents with only a high-school degree are 9.5% less likely to have access to valid photo ID than college gradu­ates.[34]  A 2009 Indi­ana study found that 81.4% of all white eligible citizens had access to a driver’s license, compared to only 55.2% of black eligible citizens.[35]  A 2006 national survey sponsored by the Center on Budget and Policy Prior­it­ies found that 8.9% of African-Amer­ic­ans born in the U.S. do not have a pass­port or birth certi­fic­ate avail­able.[36] And a 2007 regres­sion analysis of data from the Geor­gia Secret­ary of State and the Geor­gia Depart­ment of Driver Services determ­ined that, compared to white voters, black voters were over three times more likely to lack photo ID.[37]

                Data provided by Texas and South Caro­lina to the Depart­ment of Justice confirm that a substan­tial number of eligible voters who are already registered—and an even greater propor­tion of minor­ity voter­s—lack the IDs required by the new state laws.  As the Depart­ment of Justice recently noted, Texas’s data showed that the number of registered voters in the state who do not have a driver’s license or a compar­able non-driver’s photo ID ranges from 603,892 to 795,955, and Hispanic registered voters are between 46.5% and 120% more likely than white voters to lack such ID.[38]  (The state did not provide data about African-Amer­ican voters.)  Accord­ing to South Caro­lin­a’s data, 239,333 registered voters do not have state-issued driver’s or non-driver’s IDs, 81,393 of whom are minor­it­ies, and minor­it­ies were almost 20% more likely than white voters to lack DMV-issued photo IDs.[39]

                A number of the new photo ID laws are draf­ted in a way that makes it more diffi­cult for voters of color and younger voters to qual­ify.  For example, South Caro­lina, Texas, and Tennessee expli­citly exclude state-issued student photo IDs from the list of accept­able iden­ti­fic­a­tion,[40] and Wiscon­sin included require­ments that Wiscon­sin State University’s student IDs did not meet (at least at the time of enact­ment).[41]  Texas and Tennessee, despite not allow­ing state student IDs, do allow the use of concealed-carry hand­gun permits to vote.  This legis­lat­ive choice dispro­por­tion­ately harms African Amer­ic­ans, who are under-repres­en­ted among concealed-carry hand­gun permit hold­ers and over-repres­en­ted among students.  For instance, African Amer­ic­ans make up 16.9% of the Texas public univer­sity student popu­la­tion,[42] but received less than 7.7% of the state’s concealed-carry permits in 2010.[43]

                Racial minor­it­ies will also frequently face greater obstacles to obtain­ing the newly required docu­ment­a­tion.  For example, accept­able forms of iden­ti­fic­a­tion under the Texas law can be obtained at driver’s license offices.  Approx­im­ately one-third of Texas counties, however, do not have a driver’s license office, and Lati­nos in these counties are signi­fic­antly less likely to have common photo IDs.  Accord­ing to the most recent data Texas provided to the Justice Depart­ment, 14.6% of Lati­nos in counties without driver’s license offices do not have either a driver’s license or a personal iden­ti­fic­a­tion card, compared with 8.8% of non-Lati­nos.[44]  Latino house­holds are also less likely to have access to a vehicle, making it harder for Lati­nos to travel the distance to the closest driver’s license office. 

                These impacts trans­late into real consequences for real people.[45]  Dorothy Cooper, a 96-year-old African-Amer­ican woman in Tennessee, illus­trates what can happen to women when the names on their birth certi­fic­ate do not match the married names on their regis­tra­tion records: she was reportedly denied a free ID card and told she could not vote at her polling place, as she had in almost every elec­tion in the last 75 years.[46]  In the state’s recent primar­ies, 285 voters reportedly cast provi­sional ballots because they did not have photo IDs.[47]  In South Caro­lina, it has been repor­ted that husband-and-wife phys­i­cians who have been regis­ter­ing their patients to vote for the past 29 years are unable to help many of their patients register to vote, even though they have offered to pay for IDs, because many of their patients do not have birth certi­fic­ates.[48]          

                In contrast to the claims of many photo ID support­ers, photo ID laws risk depress­ing voter turnout.  Indeed, the most rigor­ous empir­ical study to date,[49] recently described in the lead­ing journal of polit­ical science meth­od­o­logy, Polit­ical Analysis,[50] concludes that the strict­est forms of voter ID require­ments reduce turnout among registered voters.  And contrary to the claims of some,[51] there is no evid­ence that photo ID laws increase turnout.  At a time when Hispanic voting rates, as well as raw numbers, went up sharply up in neigh­bor­ing states, Hispanic turnout in Geor­gia went up much less than in sister states without a photo ID require­ment in effect.  In fact, adjust­ing for growth in the voting-age Hispanic citizen popu­la­tion, the increase in Hispanic votes cast between 2006 and 2010 was over 250% greater in North Caro­lina than in Geor­gia. Simil­arly, the increase in black turnout in North Caro­lina was 129.7% greater than the increase in black turnout in Geor­gia between 2006 and 2010.[52]

                b.         Photo ID Laws Do Not Improve Elec­tion Integ­rity

                Photo ID laws also fail to mean­ing­fully improve the secur­ity of our elec­tions system.  The only prob­lem they have the poten­tial to address is in-person imper­son­a­tion fraud, and study after study confirms that prob­lem to be exceed­ingly rare, and far rarer than the disen­fran­chise­ment caused by photo ID require­ments. 

                These laws are justi­fied by wild charges of massive voter fraud.  A lead­ing proponent, John Fund, for example, has published a book entitled Steal­ing Elec­tions: How Voter Fraud Threatens Our Demo­cracy.[53]  But as Herit­age Found­a­tion fellow Hans von Spakovsky told The New York Times:

                “The left always says that people who are in favor of this claim there is massive fraud,” said Mr. von Spakovsky, of the Herit­age Found­a­tion. “No, I don’t say that. I don’t think anybody else says that there is massive fraud in Amer­ican elec­tions….”[54]

                For several years, the Bren­nan Center has stud­ied claims of voter fraud in order to distin­guish unfoun­ded and exag­ger­ated tales of fraud from reli­able, veri­fied claims of elec­tion miscon­duct. Our analytic method was published in a mono­graph entitled The Truth about Voter Fraud, which cata­logs the recur­rent meth­od­o­lo­gical flaws that lead to alleg­a­tions of voter fraud, and debunks base­less — though often repeated — reports of voter fraud.[55]  In our research we have found virtu­ally no fraud of the type that a photo ID require­ment could fix.  To the contrary, alleg­a­tions of voter fraud typic­ally prove base­less upon inspec­tion.  A recent example occurred in South Caro­lina, where state elec­tion offi­cials proved that what had appeared to be voting in the name of dead people was actu­ally just mistakes in list match­ing and cler­ical errors.[56]

                There is little to no reli­able evid­ence of any in-person imper­son­a­tion fraud in the coun­try.  Again, this form of fraud is the only miscon­duct that photo ID laws address.

                Other avail­able stud­ies also show that the incid­ence of in-person voter imper­son­a­tion is extraordin­ar­ily rare.  Between Octo­ber 2002 and Septem­ber 2005, as part of a high-prior­ity national effort to invest­ig­ate and enforce laws against voter fraud, the Depart­ment of Justice brought 38 cases; of those, only one convic­tion involved imper­son­a­tion fraud.[57]  In a compre­hens­ive exam­in­a­tion of the 9,078,728 votes cast in Ohio’s 2002 and 2004 general elec­tions, a total of four were found to be fraud­u­lent merit­ing legal action by the Board of Elec­tions and County Prosec­utors; there is no evid­ence that any of the four convic­tions could have been preven­ted by a photo ID law.[58]  A compre­hens­ive analysis of the 2004 Wash­ing­ton gubernat­orial elec­tion revealed 6 cases of possible double voting and 19 cases of alleged voting in the name of deceased indi­vidu­als out of a total 2,812,675 ballots cast; the rate of ineligible voting that thus might have been remedied by ID require­ments was 0.0009%.[59]  In an extens­ive study search­ing for voter fraud in all 50 states, Barn­ard polit­ical scient­ist Lorraine Minnite concluded that delib­er­ate instances of voter fraud are extremely rare.[60]

                Efforts to docu­ment the exist­ence of imper­son­a­tion voter fraud typic­ally come up empty.  After review­ing reams of papers filed by support­ers of Indi­ana’s voter ID law in 2007, the U.S. Supreme Court iden­ti­fied only one proven case of imper­son­a­tion fraud in recent decades, and one infam­ous historic example from 1868.[61]  The Bren­nan Center’s compre­hens­ive review of all alleged voter fraud incid­ents submit­ted to the Court in that case showed that only a hand­ful of alleg­a­tions that could possibly have involved imper­son­a­tion fraud and only one proven case that could possibly have been preven­ted by an ID require­ment.[62]  Simil­arly, a website recently put up by the Repub­lican National Lawyers Asso­ci­ation attempts to gather inform­a­tion about voter fraud prosec­u­tions and convic­tions in all fifty states over the past decade.[63]  The inform­a­tion collec­ted on that website, however, shows only two poten­tial cases of imper­son­a­tion voter fraud, one by mail and one whose facts could not be determ­ined.  Instead, the site lists cases of poten­tial double voting, poten­tial non-citizen voter regis­tra­tion or voting; poten­tial voter regis­tra­tion fraud; poten­tial absentee ballot fraud; poten­tial vote buying; and poten­tial voting from the wrong resid­ence.[64]  None of these forms of fraud would be addressed by a photo ID require­ment at the polls.

                Some claim the low incid­ence of evid­ence of voter imper­son­a­tion fraud is because it is so diffi­cult to detect.[65]  In truth, there are multiple means to discover in-person imper­son­a­tion fraud, all of which might be expec­ted to yield more reports of such fraud, if it actu­ally occurred with any frequency.  An indi­vidual seek­ing to commit imper­son­a­tion fraud must, at a minimum, present himself at a polling place, sign a poll­book, and swear to his iden­tity and eligib­il­ity.  There will be eyewit­nesses: poll­work­ers and members of the community, any one of whom may person­ally know the indi­vidual imper­son­ated, and recog­nize that the would-be voter is someone else.  There will be docu­ment­ary evid­ence: the poll­book signa­ture can be compared, either at the time of an elec­tion or after an elec­tion, to the signa­ture of the real voter on a regis­tra­tion form, and the real voter can be contac­ted to confirm or disavow a signa­ture in the event of a ques­tion.[66]  There may be a victim: if the voter imper­son­ated is alive but later arrives to vote, the imper­son­at­or’s attempt will be discovered by the voter.  (If the voter imper­son­ated is alive and has already voted, the imper­son­at­or’s attempt will likely be discovered by the poll­worker; if the voter imper­son­ated is deceased, it will be possible to cross-refer­ence death records with voting records, as described above, and review the actual poll­books to distin­guish error from foul play.)  If the imper­son­a­tion is conduc­ted in an attempt to influ­ence the results of an elec­tion, it will have to be orches­trated many times over, increas­ing the like­li­hood of detec­tion.

                It is telling that there have been only a hand­ful of poten­tial instances of imper­son­a­tion fraud among the hundreds of millions of ballots cast during a period when invest­ig­at­ing voter fraud was expressly deemed a federal law enforce­ment prior­ity,[67] and when private entit­ies were equipped and highly motiv­ated to seek, collect, and dissem­in­ate such reports.  Every year, there are far more reports of UFO sight­ings.[68]  The scarcity of reports of in-person imper­son­a­tion fraud, in this context, is itself mean­ing­ful.

                c.      The Impact of Proof of Citizen­ship Laws

                Nation­wide, at least 7% of voting-age Amer­ic­ans do not have ready access to proof of citizen­ship docu­ment­a­tion, accord­ing to our 2006 study.[69]  Based on this, the Bren­nan Center estim­ates that well over half a million citizens may not have the neces­sary proof of citizen­ship docu­ment­a­tion now required in Kansas and (in some cases) Tennessee, and that will be required in Alabama, to register to vote.[70]  New proof of citizen­ship require­ments may espe­cially harm women, who are much less likely to have updated proof of citizen­ship docu­ments that reflect their current legal name.  Accord­ing to our 2006 study, one third of voting-age women do not have access to proof of citizen­ship with their current legal name.[71]

                Citizens with low income may also have diffi­culty comply­ing with proof of citizen­ship require­ments. At least 12% of citizens earn­ing less than $25,000 lack ready access to proof of citizen­ship docu­ment­a­tion.[72]  Moreover, such docu­ment­a­tion can be prohib­it­ively expens­ive for the poorest citizens; for example, birth certi­fic­ates cost between $15 and $25.[73]  Other docu­ments, such as certi­fic­ates of natur­al­iz­a­tion, can cost hundreds of dollars.[74]  Although Alabama and Kansas provide for free birth certi­fic­ates if needed in order to register, Tennessee does not.  Moreover, Alabama and Kansas’ free birth certi­fic­ates will not help those born out of state.

                d.      The Impact of New Voter Regis­tra­tion Restric­tions

                New laws restrict­ing voter regis­tra­tion drives will result in far less community-based voter regis­tra­tion activ­ity, which will have dispar­ate impacts on minor­ity voters. 

                Flor­id­a’s former Repub­lican Governor Charlie Crist has called the new law in Flor­ida “a step back­ward,” explain­ing that “creat­ing barri­ers to voter regis­tra­tion or access to the polls is contrary to our demo­cratic ideals.”[75]  Though it has been in effect for only a short time, the impacts of the new Flor­ida law’s oner­ous burdens are already clear. Multiple groups, whose char­it­able missions revolve around protect­ing and expand­ing the fran­chise, have ceased or signi­fic­antly curtailed voter regis­tra­tion activ­it­ies through­out the state out of fear that they will be unable to comply with the law’s require­ments and thus be subject to fines, crip­pling civil and crim­inal penal­ties, and devast­at­ing repu­ta­tional harm.  Community regis­tra­tion groups who have in the past brought thou­sands of new voters onto Flor­id­a’s rolls have explained the law’s impacts to their work:

                • Deirdre Macnab, Pres­id­ent of the League of Women Voters of Flor­ida [LWVF], explained: “As a result of the new Law, LWVF has ordered a statewide cessa­tion of voter regis­tra­tion until the Law is enjoined or limited in such a way as to substan­tially reduce the organ­iz­a­tional and finan­cial risk to the League, its members, and volun­teers… The local Leagues oper­ate on a decent­ral­ized model with an all-volun­teer force, which has success­fully registered tens of thou­sands of Flor­idi­ans to vote over the last 72 years without incid­ent.  The 48-hour require­ment would require LWVF and its local Leagues to dramat­ic­ally revise their proced­ures in a manner that would require volun­teers to become detailed time­keep­ers and create strict sched­ules to ensure that forms were handed in before the clock strikes 48 hours—and do all this under the tick­ing time bomb of civil penal­ties and fines.”  Moreover, “[m]any LWVF volun­teers are elderly and depend on others for trans­port. They may have a partic­u­larly hard time meet­ing the 48-hour dead­line.”[76]
                • Rock the Vote’s [RTV] Pres­id­ent Heather Smith stated, “RTV is extremely concerned that the Law will make it exceed­ingly diffi­cult to encour­age student volun­teer­ism with us.  The Law now requires each ‘regis­tra­tion agent’ to sign a sworn form detail­ing severe felony penal­ties that result from false regis­tra­tion.  While we train our volun­teers to ensure no one falls afoul of these laws, intro­du­cing a student to civic parti­cip­a­tion and volun­teer­ism via a list of felony penal­ties, in turn signed under felony penalty of perjury, is intim­id­at­ing and scary for many students.  The nature of the required form will lead to fewer students who are will­ing to parti­cip­ate in and volun­teer in RTV’s voter regis­tra­tion activ­ity, partic­u­larly on a spon­tan­eous basis.”  Like­wise, Ms. Smith affirms that “[T]here is no ques­tion that we will have to drastic­ally cut back, or perhaps discon­tinue, our regis­tra­tion efforts in Flor­ida.  We have already suspen­ded our Demo­cracy Class program [a voter regis­tra­tion train­ing module for high school teach­ers] and our in-person voter regis­tra­tion work in the state of Flor­ida since the Law’s passage.”  The cessa­tion of RTV’s Demo­cracy Class in Flor­ida is partic­u­larly signi­fic­ant because RTV has “had to turn down requests from indi­vidu­als and teach­ers in Flor­ida to collab­or­ate on voter regis­tra­tion activ­ity due to the Law’s burden­some new require­ments.” 

                The new restric­tions on voter regis­tra­tion drives will dispro­por­tion­ately harm minor­ity and young voters.  In Flor­ida, for example, African Amer­ic­ans and Lati­nos registered to vote through voter regis­tra­tion drives at twice the rate as white voters in 2004 and 2008.[77]  Community-based voter regis­tra­tion drives typic­ally register signi­fic­ant numbers of citizens to vote in Flor­ida and else­where.  Accord­ing to the U.S. Census Bureau’s Current Popu­la­tion Survey, as of the Novem­ber 2010 elec­tion, 7.3% of all registered voters, which would trans­late to 585,004 Flor­ida citizens, had been registered to vote through such third-party drives in Flor­ida.  Those numbers are signi­fic­antly higher for communit­ies of color.  As of 2010 in Flor­ida, 10% of African-Amer­ican registered voters and 12% of Hispanic registered voters in Flor­ida were registered through drives, compared to only 5.3% of non-Hispanic white registered voters.[78]  Simil­arly, African Amer­ic­ans and Lati­nos registered to vote through voter regis­tra­tion drives at approx­im­ately twice the rate of white voters in 2004 and 2008.

                Unsur­pris­ingly, during its consid­er­a­tion by the legis­lature, the law was strongly opposed by minor­ity lead­ers in Flor­ida.  And, because of its dispar­ate impact, numer­ous civil rights organ­iz­a­tions and indi­vidu­als (includ­ing several repres­en­ted by the Bren­nan Center) have inter­vened in Flor­ida v. United States to illus­trate how the law harms minor­ity voters.[79]

                e.     The Impact of Early Voting Changes

                Minor­ity voters will also bear the brunt of new laws restrict­ing early voting. In 2008, a large number of Amer­ican-Amer­ican churches in Flor­ida and Ohio organ­ized success­ful “souls to the polls” drives, whereby church­go­ers were provided free rides to the polls for early voting on Sunday.  In Flor­ida, 33% of citizens who voted early on the Sunday before Elec­tion Day were African Amer­ican, even though African Amer­ic­ans make up only 13% of the citizen voting age popu­la­tion.[80]  Addi­tion­ally, 24% were Latino, even though Lati­nos make up only 16% of the citizen voting age popu­la­tion.[81]  Now, Flor­ida has elim­in­ated voting on the Sunday before the elec­tion, and Ohio has passed a law elim­in­at­ing Sunday voting entirely.

                f.     The Impact of Laws Making It Harder to Restore Voting Rights

                Actions to prevent the restor­a­tion of voting rights to previ­ously incar­cer­ated citizens will prevent tens and possibly hundreds of thou­sands from being able to vote and dispro­por­tion­ately hit minor­it­ies the hard­est.  A total of 5.3 million Amer­ican citizens are not allowed to vote because of a crim­inal convic­tion, even though 4 million of those have completed their sentences.[82]  A dispro­por­tion­ately high number of these citizens are African Amer­ican and Latino. Nation­wide, 13% of African-Amer­ican men have lost the right to vote, a rate that is seven times the national aver­age.[83]  Lati­nos are also incar­cer­ated at higher rates than Whites; Lati­nos repres­ent 21% of the prison popu­la­tion despite repres­ent­ing only 16.3% of the total U.S. popu­la­tion.[84]  The new South Dakota law expand­ing disen­fran­chise­ment to voters on proba­tion is likely to have a dispro­por­tion­ate impact on the state’s Native Amer­ican voters, who make up 8.8% of the state’s popu­la­tion and 26.8 % of the state prison popu­la­tion.[85]

                By revers­ing the policy of restor­ing voting rights to previ­ously incar­cer­ated indi­vidu­als, states exacer­bate exist­ing dispar­it­ies in the crim­inal justice system by keep­ing a popu­la­tion with a dispro­por­tion­ately high number of minor­ity voters off the voter rolls.

                III.             The Role of the Depart­ment of Justice in Enfor­cing Federal Protec­tions of the Right to Vote

                  The Depart­ment of Justice, through its Voting Rights Section, plays a crit­ical role in the monit­or­ing and enforce­ment of laws protect­ing the right to vote, includ­ing the seminal Voting Rights Act of 1965, the National Voter Regis­tra­tion Act of 1993 (NVRA or “Motor Voter” Law), the Help Amer­ica Vote Act of 2002 (HAVA), and the Uniformed and Over­seas Citizens Absentee Voting Act of 1986 (UOCAVA), as amended by the 2010 Milit­ary and Over­seas Voter Empower­ment Act (MOVE Act).

                  The signi­fic­ant bulk of the Depart­ment’s recent voting rights enforce­ment actions have been taken under UOCAVA and the MOVE Act to enforce the rights of milit­ary and over­seas voters.  Accord­ing to the Depart­ment’s website, it has filed 8 cases and reached 10 settle­ments since 2009 to enforce UOCAVA and the MOVE Act.[86]  In contrast, the Depart­ment brought only two enforce­ment actions to enforce the states’ oblig­a­tions to offer voter regis­tra­tion services at public service and disab­il­ity agen­cies under the NVRA’s Section 7, and only one more over the past decade.[87]  The Depart­ment’s other enforce­ment actions since 2009 include 6 cases and 2 settle­ments under the language minor­ity provi­sions of the Voting Rights Act, one case under Section 2 of the Voting Rights Act, which protects against the illegal dilu­tion of minor­ity votes, and one under the Voting Rights Act’s rules against voter intim­id­a­tion.[88]  In addi­tion, the Depart­ment has considered thou­sands of voting changes submit­ted for preclear­ance by states and local­it­ies covered under Section 5 of the Voting Rights Act,[89] and it has raised objec­tions to a hand­ful of those voting changes (17 listed on the Depart­ment’s website).[90]

                  a.     Enforce­ment of Section 5 of the Voting Rights Act

                    The Voting Rights Act of 1965 is widely regarded as the most effect­ive federal civil rights stat­ute of the 20th Century, and was reau­thor­ized by Congress in 2006 with over­whelm­ing support.  Under Section 5 of the Act, certain juris­dic­tions with a history of discrim­in­at­ory voting prac­tices must demon­strate—either to a three-judge federal court or the Depart­ment of Justice—that changes to their voting laws do not have a retro­gress­ive impact on minor­ity voters, a process known as preclear­ance. Under Section 5, these states bear the burden of demon­strat­ing that their voting laws have neither the purpose nor effect of harm­ing the state’s minor­ity voters.  When juris­dic­tions submit voting changes to the Depart­ment of Justice for preclear­ance, the Depart­ment is oblig­ated to assess the evid­ence submit­ted by those juris­dic­tions and to determ­ine whether they have met their burden of show­ing that those changes have no discrim­in­at­ory purpose and no discrim­in­at­ing effect.  When juris­dic­tions file preclear­ance actions in federal court, the Depart­ment is the defend­ant in those actions.

                    Although the Depart­ment has considered thou­sands of requests for preclear­ance of voting changes over the past three and a half years, it has only considered three so far relat­ing to the new laws restrict­ing voting: 

                    • In June of 2011, South Caro­lina sought preclear­ance from the Justice Depart­ment for its new voter ID law requir­ing voters to produce govern­ment-issued photo ID at the polls.  The Depart­ment rejec­ted the state’s request, in part because the state’s own data demon­strated that “minor­ity registered voters were nearly 20% more likely to lack DMV-issued ID than white registered voters, and thus to be effect­ively disen­fran­chised by [the] new require­ments.”[91]
                    • Simil­arly, the state of Texas submit­ted its new photo ID law to the Depart­ment of Justice in July 2011, seek­ing preclear­ance for the State’s photo ID law.  The Depart­ment objec­ted to preclear­ance, among other reas­ons, because the state’s own data showed that a Hispanic voter is between 46.5 and 120 percent more likely than a non-Hispanic voter to lack the main state-issued photo IDs.[92]
                    • The state of Flor­ida with­drew an admin­is­trat­ive preclear­ance request from the Depart­ment of Justice, and filed a federal lawsuit in the District of Columbia in 2011 before the Depart­ment had issued an opin­ion on provi­sions of the state’s new law that restricts early voting and voter regis­tra­tion.  After review­ing all evid­ence provided by the state, the Depart­ment has taken the posi­tion in court papers that Flor­ida has not met its burden of show­ing that recent restric­tions on voting and voter regis­tra­tion were passed with neither the intent nor the effect of harm­ing minor­ity voters.[93]

                    In each of these cases, which are now being considered by three-judge panels of the District of Columbia,[94] the Depart­ment prop­erly found that states have failed to meet their burden under the Voting Rights Act that the laws at issue do not harm minor­ity voters.  What is more, in none of these cases have the states at issue offered evid­ence of the exist­ence of an actual prob­lem these new legal restric­tions were supposedly designed to address.  South Caro­lina, for instance, did not submit “any evid­ence or instance of either in-person voter imper­son­a­tion or any other type of fraud that is not already addressed by the state’s exist­ing voter iden­ti­fic­a­tion require­ment and that argu­ably could be deterred by requir­ing voters to present only photo iden­ti­fic­a­tion at the polls.”[95]

                    These find­ings reflect not the Depart­ment’s opin­ions or views of the under­ly­ing policies, but rather the Depart­ment’s analysis of whether the states have made the required show­ing under federal law.  It bears noting that the Depart­ment of Justice under the last Admin­is­tra­tion, although it contro­ver­sially precleared Geor­gi­a’s photo ID law over the recom­mend­a­tions of staff analysts, raised an objec­tion to Michigan’s clos­ure of a DMV branch office in part because that would make it more diffi­cult for minor­ity citizens served by that office to obtain the photo IDs required by the state’s voting laws.[96]  As the Depart­ment noted in its recent letter to Texas, minor­it­ies in Texas simil­arly have less access to ID-issu­ing offices.[97]

                    In addi­tion to enfor­cing Section 5, the Depart­ment has been forced to defend its consti­tu­tion­al­ity in a number of lawsuits.  Six states and local juris­dic­tions launched a facial attack on the Voting Rights Act, argu­ably the most success­ful piece of civil rights legis­la­tion in our nation’s history.  Shelby County, Alabama; Kinston, North Caro­lina; and the states of Arizona, Flor­ida, Geor­gia, and Texas have all recently engaged in litig­a­tion asking that a key provi­sion of the Voting Rights Act be found uncon­sti­tu­tional.  The Bren­nan Center, along with other groups, has inter­vened in these cases, and argues, among other things, that Section 5 contin­ues to serve a compel­ling and crit­ical need in today’s Amer­ica.  Indeed, the impact of the recent voting laws on minor­ity voters detailed above demon­strates that Section 5 contin­ues to play a vital role in safe­guard­ing voting rights.

                    b.      Enforce­ment of the NVRA

                      While the Depart­ment of Justice has been actively enfor­cing several federal voting laws, there have been few actions to enforce the National Voter Regis­tra­tion Act—and Section 7 of the NVRA in partic­u­lar.  Section 7 is designed to increase the number of registered voters on the rolls by provid­ing voter regis­tra­tion oppor­tun­it­ies for indi­vidu­als who access services at public assist­ance agen­cies. This law is a crit­ical protec­tion to ensure that millions of low-income citizens have oppor­tun­it­ies to register to vote.  Enforce­ment of Section 7 has been far too rare, espe­cially consid­er­ing the hugely success­ful outcomes of such enforce­ment. 

                      Accord­ing to a report from Dēmos and Project Vote, despite over­whelm­ing evid­ence of state noncom­pli­ance with the NVRA and repeated urging from civil rights groups and members of Congress, the Depart­ment of Justice has made little public effort to enforce the stat­ute.[98]  Yet when Section 7 is enforced, via privately-filed lawsuits or admin­is­trat­ive action by the Depart­ment of Justice, the results are stun­ning, and voter regis­tra­tion rates at targeted agen­cies increase dramat­ic­ally.  For example, as the Dēmos and Project Vote report details, “[a]fter adopt­ing plans in 2004 to improve agency-based regis­tra­tion, Iowa exper­i­enced an increase in the number of voter regis­tra­tions by 700 percent over the previ­ous pres­id­en­tial elec­tion cycle and an astound­ing 3,000 percent over the previ­ous year.”[99]  Similar results were seen in Mary­land, North Caro­lina, and Tennessee after those states were targeted for enforce­ment advocacy by civil rights groups.[100]

                      The posit­ive results of NVRA Section 7 compli­ance demon­strate that enforce­ment of this stat­ute could produce extremely posit­ive results for voters, partic­u­larly low-income voters served by that section.  Similar bene­fits could be achieved by ensur­ing full compli­ance with Section 5 of the stat­ute, which requires states to provide voter regis­tra­tion oppor­tun­it­ies and to update voter regis­tra­tion records at motor vehicle offices.  We recom­mend that the Depart­ment put a renewed emphasis on ensur­ing the states’ compli­ance with the NVRA. 

                      IV.             Improv­ing the Voter Regis­tra­tion System

                        Rather than simply rely on the Depart­ment of Justice’s enforce­ment of the NVRA, Congress should work to pass new legis­la­tion to improve our voter regis­tra­tion system to make it more secure and access­ible to all eligible voters.  Congress has a role to set minimum stand­ards for the states to follow in regis­ter­ing voters for federal elec­tions.  Modern­iz­ing our voter regis­tra­tion systems will not only make the voter rolls more complete and accur­ate and save money, it will also further curb the small poten­tial for voter fraud.

                        Our current voter regis­tra­tion system is outmoded, costly, and rife with error.  Despite tech­no­lo­gical advances, the system still relies largely on hand­writ­ten paper forms, and places the onus of regis­ter­ing on the voter rather than state offi­cials.  A recent study by the Pew Center on the States found that about 50 million eligible Amer­ic­ans are not captured by the current voter regis­tra­tion system and 1 in 8 voter regis­tra­tion records contains signi­fic­ant inac­curacies.[101]

                        As the Bren­nan Center has previ­ously docu­mented, regis­tra­tion-related prob­lems are the biggest obstacle voters face each elec­tion season.[102] Our current voter regis­tra­tion system was not designed for a mobile soci­ety where one in six Amer­ic­ans moves every year.  Of the 57 million citizens who were not registered to vote in 2000, one in three was a former voter who had moved but failed to register.  Unsur­pris­ingly, regis­tra­tion prob­lems alone kept up to 3 million eligible Amer­ic­ans from voting in 2008.[103]  

                        There is an emer­ging bipar­tisan consensus that we need to modern­ize our voter regis­tra­tion system.  Experts, elec­tion offi­cials, and policy-makers have urged a common-sense, cost-effi­cient way to update our outmoded, voter-initi­ated, paper-based regis­tra­tion system.[104]  The proposed plan would simplify the regis­tra­tion process and bring 50 to 65 million eligible Amer­ic­ans into the elect­oral process.  At the same time, it would ease burdens on elec­tion offi­cials and make our voting system less suscept­ible to fraud and less expens­ive for taxpay­ers.  Legis­la­tion to modern­ize voter regis­tra­tion would auto­mate the regis­tra­tion process at places like depart­ments of motor vehicles and social service agen­cies and would ensure that voter records are accur­ate and up to date.  This type of reform would both improve the system and obvi­ate concerns about under-enforce­ment of the voting laws.

                        Four key compon­ents are neces­sary to modern­ize our voter regis­tra­tion system:

                        • Auto­mated Regis­tra­tion: States should auto­mat­ic­ally register consent­ing eligible citizens to vote when they inter­act with other state agen­cies, using exist­ing data­bases and without rely­ing on paper forms.  The states’ exper­i­ence with auto­mated regis­tra­tion to date make clear that this reform dramat­ic­ally improves the voter regis­tra­tion system, increas­ing voter regis­tra­tion rates, redu­cing error, and redu­cing costs.[105] States have typic­ally recouped the costs of this upgrade within a year or so, and have reaped ongo­ing savings.[106]
                        • Port­able Regis­tra­tion: Once an eligible citizen is on a state’s voter rolls, she should remain registered and her records move with her so long as she contin­ues to reside in that state.  Voters should remain perman­ently registered unless they move between states.   
                        • Online Regis­tra­tion: Stud­ies show that online regis­tra­tion is more secure and cost-effect­ive than paper. The federal govern­ment can encour­age the devel­op­ment of a system that permits voters to submit and update their voter regis­tra­tion online.
                        • Safety Net:  To ensure accur­ate rolls and that voters are not disen­fran­chised by regis­tra­tion errors, states should allow eligible citizens to register or correct their regis­tra­tions up to and on Elec­tion Day.

                        A modern­ized voter regis­tra­tion system bene­fits voters, elec­tion offi­cials, and the integ­rity of our voting systems.  Our current regis­tra­tion system demands an enorm­ous amount of time, money, and effort from local offi­cials. Excess­ive cler­ical work also distracts from the plan­ning and super­vi­sion neces­sary to ensure a sound Elec­tion Day.  This over­burdened regis­tra­tion process exacer­bates other prob­lems on Elec­tion Day, lead­ing to long lines, chaotic polling loca­tions, and over­whelmed volun­teers.  Voter regis­tra­tion modern­iz­a­tion will free up resources and allow elec­tion offi­cials to concen­trate on import­ant pre-elec­tion prepar­a­tions to ensure elec­tions run smoothly, rather than processing a surge of regis­tra­tion forms typic­ally received a week or two before Elec­tion Day.  Key reforms can make the system work better for elec­tion admin­is­trat­ors and the voters they serve. 

                        In addi­tion, the current patch­work of voter regis­tra­tion laws and proced­ures leaves the system vulner­able to fraud and tamper­ing.  Voter regis­tra­tion modern­iz­a­tion lever­ages exist­ing and reli­able govern­ment inform­a­tion to update the voter rolls, increas­ing their accur­acy and reli­ab­il­ity.  These are common-sense reforms that mean­ing­fully achieve the goal of increas­ing elec­tion secur­ity while also expand­ing the fran­chise.

                        States that have imple­men­ted key modern­iz­a­tion reforms have enjoyed increased regis­tra­tion rates, cost savings, and fewer regis­tra­tion errors.[107]  Many states have success­fully imple­men­ted compon­ents of a modern­ized voter regis­tra­tion system, with support from a broad and bipar­tisan array of elec­ted offi­cials and elec­tion admin­is­trat­ors:

                        • Auto­mated regis­tra­tion:  17 states and the District of Columbia have partially or fully auto­mated the voter regis­tra­tion process at motor vehicle offices (Arizona, Arkan­sas, Cali­for­nia, Delaware, Wash­ing­ton D.C., Flor­ida, Geor­gia, Kansas, Kentucky, Michigan, New Jersey, North Caro­lina, Pennsylvania, Rhode Island, South Caro­lina, South Dakota, Texas, and Wash­ing­ton).  Of those, 11 and the District of Columbia are fully paper­less.
                        • Port­able regis­tra­tion:  16 states and the District of Columbia have port­able or perman­ent voter regis­tra­tion: Color­ado, Delaware, Wash­ing­ton D.C., Idaho, Iowa, Maine, Mary­land, Minnesota, Montana, New Hamp­shire, North Caro­lina, Ohio, Oregon, South Dakota, Wash­ing­ton, Wiscon­sin, and Wyom­ing.  That number includes the 8 states that accom­plish port­able regis­tra­tion using Elec­tion Day or same-day regis­tra­tion. 
                        • Online regis­tra­tion:  10 states have imple­men­ted online regis­tra­tion (Arizona, Color­ado, Delaware, Indi­ana, Kansas, Louisi­ana, Nevada, Oregon, Utah, and Wash­ing­ton).  That number includes one state (Nevada) that has online regis­tra­tion only in its largest county, which covers more than 70% of the state popu­la­tion.  That number does not include Cali­for­nia, which passed a law requir­ing online regis­tra­tion but has not yet put it in place, and other states that are in the process of devel­op­ing online systems.

                        These meas­ures have been adop­ted and suppor­ted by a broad bi-partisan group of state offi­cials.[108]  They both increase voter regis­tra­tion rates and decrease the poten­tial for fraud—while signi­fic­antly cutting costs.  They are worthy of seri­ous consid­er­a­tion by Congress and could go a long way to creat­ing more secure and access­ible elec­tions for all Amer­ic­ans.


                        [1] The Bren­nan Center is a nonpar­tisan think tank and legal advocacy organ­iz­a­tion that focuses on issues of demo­cracy and justice.  Among other things, we seek to ensure fair and accur­ate voting proced­ures and systems, and to maxim­ize the parti­cip­a­tion of eligible Amer­ican citizens in elec­tions. We have done extens­ive work on a range of issues relat­ing to voting rights, includ­ing work to modern­ize our voter regis­tra­tion system, remove unne­ces­sary barri­ers to voter parti­cip­a­tion; make voting machines more secure and access­ible; defend the federal Voting Rights Act; and expand access to the fran­chise. Our work on these topics has included the public­a­tion of stud­ies and reports; assist­ance to federal and state admin­is­trat­ive and legis­lat­ive bodies with respons­ib­il­ity over elec­tions; and, when neces­sary, parti­cip­a­tion in litig­a­tion to compel states to comply with their oblig­a­tions under federal law and the Consti­tu­tion.  This testi­mony is submit­ted on behalf of a Center affil­i­ated with New York Univer­sity School of Law, but does not purport to repres­ent the school’s insti­tu­tional views on this topic.

                        [2] Wendy R. Weiser & Lawrence Norden, Voting Law Changes in 2012 (2011), avail­able at http://bren­nan.3cdn.net/d16b­ab3d00e5a82413_66m6y5xpw.pdf.

                        [3] Those states are Indi­ana and Geor­gia.  See Weiser & Norden, supra note 2, at 4; Bren­nan Center for Justice, 2012 Voting Law Changes: Passed and Pending Legis­la­tion That has the Poten­tial to Suppress the Vote, avail­able at http://bren­nan.3cdn.net/1f40bff8cb538f751a_88m6b5rob.pdf.

                        [4] Alabama, Kansas, South Caro­lina, Tennessee, Texas, Pennsylvania, and Wiscon­sin.  Tennessee, however, allows certain voters without ID to cast a regu­lar ballot after swear­ing an affi­davit of iden­tity at the polls. See Weiser & Norden, supra note 2, at 6–7; Bren­nan Center for Justice, 2012 Voting Law Changes: Passed and Pending Legis­la­tion That has the Poten­tial to Suppress the Vote, avail­able at http://bren­nan.3cdn.net/1f40bff8cb538f751a_88m6b5rob.pdf.

                        [5] Kansas, Texas, and Wiscon­sin. See Weiser & Norden, supra note 2, at 6.

                        [6] Id.

                        [7] Minnesota, Missouri, Montana, New Hamp­shire and North Caro­lina. See id. at 5 n.17.

                        [8] Matthew Ward, Virginia Governor Seeks to Soften Voter ID Legis­la­tion, Chicago Tribune, Apr. 10, 2012, avail­able at www.chica­g­o­tribune.com/news/sns-rt-us-usa-voterid-virgini­ab­re83a03b-20120410,0,479433.story.

                        [9] S.B. 256, 2011 Gen. Assemb., Reg. Sess. (Ala. 2011), avail­able at http://alis­ondb.legis­lature.state.al.us/acas/search­ablein­stru­ments/2011RS/Print­files/SB256-int.pdf.

                        [10] H.B. 2067, 2011 Sess. (Kan. 2011), avail­able at http://www.ksle­gis­lature.org/li/b2011_12/year1/meas­ures/hb2067/.

                        [11] S.B. 352, 107th Gen. Assemb., 2011 Sess. (Tenn. 2011), avail­able at http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNum­ber=SB0352.

                        [12] Ariz. Rev. Stat. §§ 16–152(A)(23), 16–166 (2011).

                        [13] Eric Russell, Main­ers Vote to Continue Elec­tion Day Regis­tra­tion, Bangor Daily News, Nov. 8, 2011, avail­able at http://bangordailynews.com/2011/11/08/polit­ics/early-results-indic­ate-elec­tion-day-voter-regis­tra­tion-restored/.

                        [14] Weiser & Norden, supra note 2, at 25–26.  Because the law’s chal­lengers met the require­ments to put the law before voters on the ballot, Ohio’s new law will not be in effect in 2012.

                        [15] H.B. 1355, 114th Reg. Sess. (Fla. 2011), avail­able at http://www.flsen­ate.gov/Session/Bill/2011/1355; H.B. 1570, 82d Leg., Reg. Sess. (Tex. 2011), avail­able at http://www.capitol.state.tx.us/tlodocs/82R/bill­text/pdf/HB01570F.pdf#navpanes=0.

                        [16] Weiser & Norden, supra note 2, at 21.

                        [17] Id.

                        [18] R. Michael Alvarez et al., 2008 Survey of the Perform­ance of Amer­ican Elec­tions 12 (2009), avail­able at http://www.vote.caltech.edu/drupal/files/report/Final%20re­port20090218.pdf.

                        [19] H.B. 1355, 2011 Leg. Sess. (Fla. 2011), avail­able at http://www.myflor­ida­house.gov/Sections/Docu­ments/load­doc.aspx?File­Name=_h1355er.docx&Docu­ment­Type=Bill&BillNum­ber=1355&Session=2011; H.B. 92, 2011 Gen. Assemb. (Ga. 2011), avail­able at http://www.legis.ga.gov/Legis­la­tion/20112012/116254.pdf; H.B. 194, 129th Gen. Assemb., Reg. Sess. (Ohio 2011), avail­able at http://www.legis­lature.state.oh.us/Bill­Tex­t129/129_HB_194_PS_N.html; S.B. 772, 107th Gen. Assemb., 2011 Reg. Sess. (Tenn. 2011), avail­able at http://www.capitol.tn.gov/Bills/107/Bill/SB0772.pdf; S.B. 581, 80th Leg., 1st Sess. (W. Va. 2011), avail­able at http://www.legis.state.wv.us/Bill_Text_HTML/2011_SESSIONS/RS/pdf_bills/sb581%20ENR.pdf.

                        [20] H.B. 194, 129th Gen. Assemb., Reg. Sess. § 3509.01(B) (Ohio 2011), avail­able at http://www.legis­lature.state.oh.us/Bill­Tex­t129/129_HB_194_PS_N.html.  The Ohio Secret­ary of State has inter­preted another law that passed in 2011, H.B. 224, to end the period of in-person absentee voting at 6 PM on the last Friday before Elec­tion Day and thereby elim­in­ate the last week­end of early voting prior to the elec­tion for all but uniformed and over­seas absentee voters.  Under this inter­pret­a­tion, one chal­lenged by some Ohio legis­lat­ors and voting rights groups, early voting on this last week­end will be elim­in­ated regard­less of the outcome of the Novem­ber refer­en­dum.

                        [21] 2011 Fla. Laws 40, avail­able at http://laws.flrules.org/files/Ch_2011–040.pdf; see also Justin Levitt, A Devil in the Details of Flor­id­a’s Early Voting Law, Elec­tion Law Blog (May 23, 2011), avail­able at http://elec­tion­lawblog.org/?p=18296.

                        [22] Iowa Exec. Order No. 42 (July 4, 2005), avail­able at http://bren­nan.3cdn.net/563fe831695be5a1fa_nwm6b­vbik.pdf (repealed by Gov. Bran­stad); Fla. Parole Comm’n, Rules of Exec­ut­ive Clem­ency (Mar. 9, 2011), avail­able at https://fpc.state.fl.us/PDFs/clem­ency_rules.pdf.

                        [23] Weiser & Norden, supra note 2, at 34.

                        [24] See id. at 34–35, 37 n. 1.

                        [25] H.B. 1247, 2012 Leg. Sess. (S. Dak. 2011), avail­able at http://legis.state.sd.us/sessions/20