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Wendy R. Weiser Before Senate Special Subcommittee on Aging

Testimony focuses principally on voter identification requirements and their impact on older Americans. As set forth here, voter ID requirements—especially the restrictive photo ID requirements that have been proposed and introduced over the past few years—substantially and disproportionately burden the voting rights of seniors.

Published: February 1, 2008

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Testi­mony of

Wendy R. Weiser

Deputy Director, Demo­cracy Program

Bren­nan Center for Justice at NYU School of Law

Before the

Senate Special Subcom­mit­tee on Aging

Janu­ary 31, 2008

            On behalf of the Bren­nan Center for Justice at NYU School of Law, I thank the Senate Special Subcom­mit­tee on Aging for hold­ing this hear­ing and for provid­ing me the oppor­tun­ity to discuss oppor­tun­it­ies and chal­lenges facing older voters. 

            My name is Wendy Weiser, and I direct the Bren­nan Center’s work on voting rights and elec­tions.  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 promote policies that maxim­ize citizen enfran­chise­ment and parti­cip­a­tion in elec­tions.  We have done extens­ive work on a range of voting issues of concern to older Amer­ic­ans, includ­ing voter iden­ti­fic­a­tion and voting system access­ib­il­ity and usab­il­ity.  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.  Most recently, we submit­ted an amicus brief to the Supreme Court in Craw­ford v. Marion County Elec­tion Board, a case chal­len­ging the consti­tu­tion­al­ity of Indi­ana’s voter iden­ti­fic­a­tion law.[1]

            My testi­mony today will focus prin­cip­ally on voter iden­ti­fic­a­tion require­ments and their impact on older Amer­ic­ans.  As set forth below, voter ID require­ments-espe­cially the restrict­ive photo ID require­ments that have been proposed and intro­duced over the past few years-substan­tially and dispro­por­tion­ately burden the voting rights of seni­ors.  If restrict­ive ID require­ments are put in place, many older Amer­ic­ans will be deprived of their right to vote.

            The impact on our elec­tions would be far-reach­ing.  As the AARP recently noted in a brief before the Supreme Court, older Amer­ic­ans consist­ently parti­cip­ate in the elect­oral process at a higher rate than other age groups.[2]  Moreover, by 2030, the number of older voters is expec­ted to double (to 71.5 million), which means that older voters will likely comprise a much larger percent­age of the elect­or­ate.[3]  It is vital to the health of our demo­cracy that we ensure that our elect­oral systems facil­it­ate, and do not impede, the parti­cip­a­tion of this import­ant segment of the popu­la­tion.

New Restrict­ive Voter ID Require­ments

            Over the past few years, there has been a concer­ted push across the coun­try to impose new, strict iden­ti­fic­a­tion require­ments on voters.  In 2007 alone, bills were intro­duced in more than thirty states and in Congress to make voter iden­ti­fic­a­tion require­ments more restrict­ive by requir­ing voters to show photo ID or proof of citizen­ship.[4]  (Those states include all but four of the Super Tues­day states.)  Since the begin­ning of 2008, restrict­ive photo ID bills have been intro­duced or pre-filed in at least nine states,[5] and offi­cials in at least two other states have publicly announced their intent to pursue photo ID require­ments.[6]  More than a dozen states also have currently pending bills requir­ing docu­ment­ary proof of citizen­ship to register or to vote.[7]

            Prior to 2005, no state mandated photo ID as an abso­lute require­ment for voting, and no state required docu­ment­ary proof of citizen­ship to register or to vote.  The vast major­ity of states still use other meth­ods of identi­fy­ing voters that are far less oner­ous than photo ID.  And in most states that require some form of docu­ment­ary ID, there is an altern­at­ive iden­ti­fic­a­tion mech­an­ism for those voters who do not have the required docu­ment­a­tion that allows then to vote at the polls.  I attach as an appendix to my testi­mony a summary of the current voter iden­ti­fic­a­tion require­ments in the states.

            In the Help Amer­ica Vote Act of 2002 (“HAVA”), Congress considered and rejec­ted a photo ID require­ment for voting, opting instead for a more limited ID provi­sion focused on new regis­trants who had not yet been vetted by state elec­tion systems, and allow­ing those voters to identify them­selves using a broad range of docu­ments.[8]  Notwith­stand­ing the comprom­ise reached in HAVA, proponents of voter ID continue to strenu­ously press their cause. 

            To date only three states-Geor­gia, Indi­ana, and Missouri-have passed laws requir­ing voters to present photo ID to vote and to have their votes coun­ted, and only Geor­gia and Indi­ana still have those require­ments in place.[9]  Although four other states also request photo ID of their voters, voters who do not have photo IDs in those states are entitled to cast ballots that will count without having to nego­ti­ate signi­fic­ant hurdles.  Specific­ally, Louisi­ana, Michigan, and South Dakota allow voters who do not have photo IDs to cast regu­lar ballots if they swear an affi­davit to their eligib­il­ity.  And while Flor­ida law provides that a voter without photo ID may only vote by provi­sional ballot, the state must count that provi­sional ballot so long as the voter’s signa­ture matches the signa­ture on file with elec­tion offi­cials.[10]

            Although only a few states currently impose strict photo ID require­ments, other states have made their exist­ing voter ID require­ments more burden­some.  The most oner­ous new require­ment beyond photo ID is Arizon­a’s require­ment that voters present docu­ment­ary proof of citizen­ship in order to register to vote.[11]  Like the recently-enacted Geor­gia and Indi­ana laws, Arizon­a’s law is currently being chal­lenged in court.

Impact of Voter ID Require­ments on Older Amer­ic­ans

            Strict voter ID require­ments have the poten­tial to disen­fran­chise millions of eligible voters.  Those require­ments fall most harshly on the poor, people of color, youth, and-most signi­fic­antly for this hear­ing-senior citizens.  Stud­ies consist­ently show that millions of Amer­ic­ans do not have govern­ment-issued photo IDs, and that seni­ors are dispro­por­tion­ately repres­en­ted among those without IDs.

            Stud­ies Show That Millions of Older Amer­ic­ans Lack Photo IDs

            Accord­ing to a nation-wide survey by the National Opin­ion Research Corp. sponsored by the Bren­nan Center in late 2006, 11% of voting-age Amer­ic­ans-roughly twenty-one million citizens-do not have current govern­ment-issued photo IDs.[12]  The impact is far more pronounced for older Amer­ic­ans: 18% of citizens 65 and older do not have current govern­ment-issued photo IDs.[13]  Using 2005 census estim­ates, that amounts to more than 6 million senior citizens who could be excluded by strict photo ID require­ments.

            These find­ings are consist­ent with the find­ings of the three major social science stud­ies that have examined the rates of ID posses­sion in partic­u­lar states.  Most recently, research­ers at the Univer­sity of Wash­ing­ton stud­ied the rates at which voting age citizens in Indi­ana possessed the kinds of ID required by the state’s photo ID law.  They found that age has a “curvi­lin­ear rela­tion­ship” with access to photo ID, in which both younger and older voters are less likely to have access to photo ID.[14]  Accord­ing to their survey results, 19.4% of registered voters over 70 do not have valid photo IDs, as compared to 16.3% of total registered voters in Indi­ana.[15]

            A 2005 study by research­ers at the Univer­sity of Wiscon­sin who examined the state’s driver’s license and photo ID records found that 23% of people aged 65 and older (177,399 people) in Wiscon­sin do not have a driver’s license or a non-driver’s photo ID.  Of that group, 79% are women.[16]  Research­ers at the Univer­sity of Geor­gia simil­arly found that older citizens in Geor­gia are signi­fic­antly less likely than aver­age to have govern­ment-issued photo ID.[17]  Surveys by the AARP in Indi­ana and Geor­gia also found that signi­fic­ant numbers of seni­ors do not have the kinds of photo IDs required by those states’ laws.[18]

            It is not surpris­ing that so many seni­ors lack govern­ment-issued photo IDs.  By far the most common state-issued photo ID is a driver’s license, but many older Amer­ic­ans do not drive.  Indeed, many states make it diffi­cult for seni­ors to obtain driver’s licenses.[19]  Relat­ively few Amer­ic­ans, includ­ing older Amer­ic­ans, travel abroad, and so few have need for a pass­port.  Accord­ing to the U.S. Depart­ment of State Bureau of Consu­lar Affairs, only 25% of Amer­ic­ans have a U.S. pass­port.[20]  And, as discussed below, it is diffi­cult for many older Amer­ic­ans to fulfill the require­ments for obtain­ing state-issued photo IDs.

            Require­ments for Obtain­ing Photo ID Are Espe­cially Burden­some for Seni­ors

            All current state-issued photo IDs cost money, either directly or indir­ectly.  Although some states waive the direct costs of photo IDs for indi­gent citizens, no state waives the costs of all the under­ly­ing docu­ments required to obtain a photo ID.  An applic­ant for a state-issued photo ID in Indi­ana, for example, is required to show several docu­ments, includ­ing one of the follow­ing: a certi­fied copy of a U.S. birth certi­fic­ate, a pass­port, natur­al­iz­a­tion papers, or a U.S. milit­ary or merchant marine photo ID.  For a birth certi­fic­ate search, Indi­ana charges $10.00, in addi­tion to applic­able county fees;[21] the cost in other states can run even higher.  A U.S. pass­port costs $97.00.[22]  Replace­ment natur­al­iz­a­tion papers cost $380.00 and can take up to a year to obtain.[23]

            Many older Amer­ic­ans do not have ready access to these docu­ments prov­ing citizen­ship.  Accord­ing to a survey sponsored by the Center on Budget and Policy Prior­it­ies, indi­vidu­als over the age of 65 are much less likely to have citizen­ship docu­ments than those under 65.[24]  The finan­cial costs of obtain­ing these docu­ments needed for photo IDs are partic­u­larly burden­some to older voters who live on fixed incomes. 

            In addi­tion to the costs of the under­ly­ing docu­ments required for photo ID, applic­ants for photo ID must incur the burden and costs of trans­port­a­tion to vari­ous govern­ment offices, often multiple times.[25]  This can be a signi­fic­ant burden to the many senior citizens for whom public trans­port­a­tion is diffi­cult to access.  Older Amer­ic­ans are far more likely to have disab­il­it­ies than other citizens,[26] making it more diffi­cult for them to travel and to navig­ate the proced­ures required to obtain photo ID.

            For some older Amer­ic­ans, espe­cially people of color, it may be extremely diffi­cult or impossible to obtain the docu­ments needed for photo ID.  Many minor­ity citizens born before and during the 1960s were born outside of hospit­als because of lack of access to health care.[27]  One study found that three out of four nonwhite infants born in Decem­ber 1939 and Janu­ary 1940 were born at home, and that 23% of all nonwhite births outside of hospit­als were unre­gistered.[28]  Thus, older minor­ity citizens are signi­fic­antly less likely to have access to a birth certi­fic­ate on file with the state.

            Older women who have taken their husbands’ surnames may face the addi­tional hurdle of prov­ing that their citizen­ship docu­ments refer to them.  The Bren­nan Center’s national survey found that only 48% of voting-age women with ready access to their U.S. birth certi­fic­ates have a birth certi­fic­ate with their current legal name-as opposed to a name they had before marriage, divorce, or other name change-and only 66% have ready access to any type of citizen­ship docu­ment with their current legal name.[29]

The Craw­ford Case Before the U.S. Supreme Court and Indi­ana’s Voter ID Law

            On Janu­ary 9, 2008, the Supreme Court heard oral argu­ment in Craw­ford v. Marion County Board of Elec­tions, a case chal­len­ging the consti­tu­tion­al­ity Indi­ana’s voter ID law.  The most restrict­ive voter ID require­ment in the coun­try, Indi­ana’s law requires all voters at the polls to present a current govern­ment-issued photo ID with an expir­a­tion date.  Because of its expir­a­tion date require­ment, Indi­ana’s law excludes many forms of govern­ment-issued photo IDs, includ­ing veter­ans’ IDs, Congres­sional IDs, many student IDs, and work IDs. 

            Although many older Amer­ic­ans do not have the forms of ID required by Indi­ana’s law, its impact on older Amer­ic­ans is mitig­ated some­what by the state’s absentee ballot­ing rules.  Like many pending voter ID propos­als, Indi­ana’s voter ID law applies only to voters who appear at the polls and specific­ally excludes indi­vidu­als who vote by absentee ballot.  Unlike many states, Indi­ana allows all citizens aged 65 and older to vote absentee.[30]  Thus, a senior citizen without voter ID can cast a valid ballot in Indi­ana if she votes absentee.

            Voting absentee, however, is not an adequate substi­tute for the right to parti­cip­ate in the polit­ical process in person.  Many older Amer­ic­ans object to being excluded from the civic ritual of voting at the polling place and being releg­ated to a second-tier voting mech­an­ism.  Moreover, unlike those who vote in person, those who vote absentee must apply for, receive, and complete their ballots well in advance of Elec­tion Day.  Not only is this an added burden, but it also deprives those voters of full inform­a­tion about the elec­tions since they must mail their ballots before late-break­ing inform­a­tion about the candid­ates and campaigns.  Absentee ballots are typic­ally less likely to be coun­ted than regu­lar ballots.  And absentee voters must navig­ate confus­ing instruc­tions without the assist­ance of poll work­ers.

            Indi­ana’s law has one addi­tional feature supposedly designed to reduce its burden on voters who are indi­gent or have reli­gious objec­tions to photo IDs.  Specific­ally, a voter without accept­able photo ID may cast a provi­sional ballot at the polls that will count so long as the voter travels to the circuit court clerk’s office or the county elec­tion board within ten days of the elec­tion and swears an affi­davit that he either has a reli­gious objec­tion to being photo­graphed or is an indi­gent who is unable to obtain the required ID without paying a fee.[31]  Indi­ana does not allow voters to execute those affi­davits at the polls on Elec­tion Day.

            This provi­sion is of minimal bene­fit to Indi­ana’s poor citizens, since it creates an overly-and gratu­it­ously-burden­some process for them to have their ballots coun­ted.  Indi­gent voters who do not have state-issued photo IDs do not drive and may not be able to afford the cost of trans­port­a­tion (or the time) to make a second trip to vote.  This creates a two-tier voting system based on wealth; while most voters need only go to one govern­ment office or public place to vote, indi­gent voters must go to two. 

            Older Amer­ic­ans Injured by Indi­ana’s Law

            Because Craw­ford was filed before the 2006 elec­tions in an effort to block Indi­ana’s law from going into effect, the record in the case was developed before the law was in effect in an elec­tion.  Nonethe­less, there is evid­ence that Indi­ana’s law has already harmed older Amer­ic­ans. 

            First, the plaintiffs in the case include a number of older Amer­ic­ans who do not have and were unable to obtain the requis­ite ID and thus could not vote in person in Indi­ana.  One plaintiff is Thelma Ruth Hunter, an 85-year-old woman who has resided and voted in person in Indi­ana­polis her entire life but has no photo ID.  She was born at home in Tennessee, and to her know­ledge, no state record of her birth exists.  At the time of the district court hear­ing, she had been unable to obtain a “delayed certi­fic­ate of birth” from Tennessee and thus could not obtain an Indi­ana photo ID.[32]  Other older plaintiffs include: Imogene Chap­man, an 84-year-old woman who has worked at the polls in Marion County for 15 years and has no state-issued photo ID; Theresa Clem­ente, a 78-year-old Indi­ana resid­ent who tried but was unable to obtain an Indi­ana photo ID after spend­ing $28.00 for a certi­fied copy of her birth certi­fic­ate from Boston; David Harrison, a 75-year-old milit­ary veteran who has neither photo ID nor an original birth certi­fic­ate and cannot afford to secure a birth certi­fic­ate without char­it­able assist­ance; Lois Holland a 69-year-old poll­worker who has no photo ID and no birth certi­fic­ate; Ernest Pruden, a 74-year-old former poll worker who has neither the requis­ite photo ID nor a birth certi­fic­ate from North Caro­lina, where he was born; and Barbara Smith, a 71-year-old woman who only has govern­ment-issued photo ID without an expir­a­tion date.[33]

            Several older indi­vidu­als asso­ci­ated with the Indi­ana League of Women Voters, who submit­ted an amicus brief in the case, were also injured by the law.  One such indi­vidual is 92-year-old Mary Wayne Mont­gomery Eble, the daugh­ter of a suffra­gette with a strong family tradi­tion of voting and civic parti­cip­a­tion at the polls.  Ms. Eble has no photo ID, and she lives in a rural county with no public trans­port­a­tion, forty-five minutes away from the nearest state office that issues photo IDs, and one hour away from the place she would have to go to obtain a certi­fied record of her birth.  Ray Wardell, a 78-year-old Korean War veteran, was required to cast a provi­sional ballot in a recent elec­tion because he had no photo ID after his wallet was stolen and the state motor vehicles office refused to issue him a photo ID based on his Medi­care card.[34]  For his provi­sional ballot to count, he would have had to obtain a photo ID and present it to the county clerk or the elec­tion board within ten days of the elec­tion.

            In addi­tion to voters facing the prospect of future disen­fran­chise­ment, there is evid­ence of older Amer­ic­ans who were actu­ally disen­fran­chised in a recent elec­tion. The bi-partisan Marion County Board of Elec­tions, one of the respond­ents in the case, asser­ted in their brief that at least 32 provi­sional ballots were not coun­ted in a 2007 muni­cipal elec­tion in Indi­ana­polis because the indi­vidu­als who cast those ballots did not present the required ID.  Most of those indi­vidu­als had voted in the same precincts for many elec­tions.[35]  In a follow up report, the New York Times iden­ti­fied two of the disen­fran­chised citizens, and both were older.  Specific­ally, Mary-Jo Criswell, age 71, was unable to vote using her bank card with a photo­graph, and Valerie Willi­ams, age 60, was barred from voting in the lobby of her retire­ment home using her tele­phone bill, a Social Secur­ity letter with her address, and an expired Indi­ana driver’s license.[36]

            These affected indi­vidu­als are only a small portion of the Indi­ana citizens injured by the state’s photo ID law.  While the parties to the Craw­ford case disagree on the number of Indi­ana citizens affected by the law, even under the state’s minim­al­ist inter­pret­a­tion of the evid­ence, at least 43,000 Hoosiers lack the photo IDs required to vote and thus could be disen­fran­chised by the law.  (Accord­ing to the peti­tion­ers, the number of Hoosiers without IDs is ten times that.)

            The Base­less Justi­fic­a­tion for Indi­ana’s Law

            Like other voter ID proponents, Indi­ana justi­fies its restrict­ive voter ID law as a meas­ure to prevent voter fraud.  But photo ID does not stop vote-buying, ballot tamper­ing, absentee ballot fraud, or even voting by non-citizens-the types of elec­tion miscon­duct that do occur.  The only type of fraud that photo ID can prevent is voting in the name of another registered voter at the polls, or imper­son­a­tion fraud. 

            The Bren­nan Center has extens­ively stud­ied alleg­a­tions of voter fraud over several years and has found no evid­ence that imper­son­a­tion fraud is anything but an anom­aly.  Our recent report, The Truth About Voter Fraud, contains the most compre­hens­ive analysis of public alleg­a­tions of voter fraud.[37]  It finds that almost all of those alleg­a­tions-many of which are repeatedly raised by proponents of voter ID-have either been proved incor­rect or are unsub­stan­ti­ated and unlikely to reflect voter fraud.  Instead, much evid­ence that purports to reveal voter fraud can be traced to far more common causes-includ­ing cler­ical and typo­graph­ical errors, computer match­ing errors, jump­ing to unwar­ran­ted conclu­sions from inform­a­tion in the voter rolls or from mail­ings, and voter errors.[38]

            Over the years, there have been only a hand­ful of substan­ti­ated cases of indi­vidual ineligible voters attempt­ing to defraud the elec­tion system.  But by any meas­ure, imper­son­a­tion fraud is extraordin­ar­ily rare.  That is not surpris­ing, because it is irra­tional.  Each voter fraud in connec­tion with a federal elec­tion risks five years in prison and $10,000 in fines, in addi­tion to state penal­ties.[39]  In return, the fraud-feasor stands to gain only one marginal vote.

            The conclu­sion that imper­son­a­tion fraud is extremely rare is suppor­ted by the record in the Craw­ford case.  Indi­ana conceded that that it had never prosec­uted a case of in person voter fraud and that it was not aware of any actual incid­ents of in person voter fraud in Indi­ana.  What is more, there was no show­ing that Indi­ana’s exist­ing proced­ures or less draconian rules else­where were inad­equate to address any exist­ing prob­lem.

            In fact, in all the briefs submit­ted before the Supreme Court, the law’s support­ers did not cite a single proven incid­ent anywhere in the coun­try of a fraud­u­lent vote that could have been preven­ted by photo ID.[40]  Despite the fact that the Depart­ment of Justice has had a program dedic­ated to voter fraud since 2002, out of the more than 400 million votes that were cast since 2000, the law’s support­ers cited only nine unproven alleg­a­tions of imper­son­a­tion fraud.[41]  These paltry numbers make clear that imper­son­a­tion fraud is not a seri­ous prob­lem, and they suggest that the exist­ing meas­ures in the states to protect against such fraud are suffi­cient to prevent threats to elec­tion integ­rity.

Recom­mend­a­tions for Congress

            The Supreme Court’s decision in Craw­ford is likely to rever­ber­ate far beyond Indi­ana.  A decision to uphold Indi­ana’s voter ID law will bolster efforts across the coun­try to enact new ID restric­tions.  For the reas­ons I have provided, that could harm the voting rights of millions of older Amer­ic­ans. 

            Fortu­nately, the Supreme Court does not have a mono­poly on protect­ing voting rights.  Where the Consti­tu­tion has been insuf­fi­cient to protect voting rights in the past, Congress has stepped in and achieved excel­lent results.[42]  Regard­less of how the Supreme Court rules in Craw­ford, there are steps that Congress can do to protect all Amer­ic­ans, and espe­cially older Amer­ic­ans, from disen­fran­chising voter ID require­ments.  These steps include:

§         Resist restrict­ive ID and proof of citizen­ship require­ments.  First and fore­most, Congress should resist any attempt at the federal level to make photo ID and proof of citizen­ship a pre-condi­tion of voting or voter regis­tra­tion. 

§         Prohibit oner­ous state docu­ment­a­tion require­ments.  Congress should also enact protec­tions to guard against voter disen­fran­chise­ment as a result of restrict­ive state-imposed photo ID or proof of citizen­ship require­ments.

§         Reduce the costs and burdens asso­ci­ated with photo IDs.  Congress should make it easier for indi­gent and older Amer­ic­ans to obtain federal photo IDs and citizen­ship docu­ments.

§         Repeal oner­ous provi­sion of REAL ID Act.  The REAL ID Act of 2005,[43] which is sched­uled to go into effect this year for states that do not obtain exten­sions, imposes a series of burden­some federal require­ments on state photo ID cards.  Among those is a require­ment that each citizen show docu­ment­ary proof of citizen­ship and that the state verify that docu­ment­a­tion with the Depart­ment of Home­land Secur­ity before the indi­vidual is issued a driver’s license or other photo ID.  This will make it substan­tially more diffi­cult for older Amer­ic­ans to obtain state-issued photo ID cards.  The National Governors Asso­ci­ation, the National Coun­cil of State Legis­latures, and the Amer­ican Asso­ci­ation of Motor Vehicle Admin­is­trat­ors have estim­ated that it will cost states at least $11 billion to imple­ment the REAL ID Act over the first 5 years.[44]  And a number of states have rejec­ted the Act.  To prevent a disaster, Congress should repeal the oner­ous require­ments of the REAL ID Act. 

§         Resources for voter and poll worker educa­tion on ID.  A signi­fic­ant number of voters are asked to provide photo ID at the polls even though such ID is not required by state law.  While there has been no reli­able empir­ical research into how many of these Amer­ic­ans have been disen­fran­chised as a result, the poten­tial for prob­lems is huge.  Congress should provide resources for state and local elec­tion offi­cials to educate their voters and poll work­ers about what ID is neces­sary as well as what ID is not required to vote and should require states to post accur­ate inform­a­tion about ID require­ments at every polling place.[45]

Access­ib­il­ity and Usab­il­ity of Voting Systems

            Although my testi­mony today addresses only voter iden­ti­fic­a­tion, the Bren­nan Center has also done extens­ive work on two other issues of signi­fic­ant concern to older Amer­ic­ans: the access­ib­il­ity and usab­il­ity of elec­tronic voting systems. 

            Accord­ing to the 2000 Census, there were 19.1 million Amer­ic­ans of voting age who have trouble seeing; 30.8 million who have trouble hear­ing; and 28.3 million who have phys­ical diffi­culty, includ­ing trouble grasp­ing or hand­ling small objects.  Not surpris­ingly, the elderly are dispro­por­tion­ately repres­en­ted in this group.  All of these disab­il­it­ies make it more diffi­cult to vote privately and inde­pend­ently on any voting system.

            In 2006, the Bren­nan Center released a four-part series of stud­ies provid­ing a compre­hens­ive empir­ical analysis of the elec­tronic voting systems used in the United States.  I have submit­ted copies of two of those reports-one deal­ing with voting system access­ib­il­ity[46] and one deal­ing with voting system usab­il­ity[47]-with my testi­mony.

            With respect to the tech­no­lo­gies currently in use, those reports found that none of the current voting systems fully satis­fies HAVA’s require­ment that disabled voters be able to vote privately and inde­pend­ently.  They also found that all of the current voting systems could be improved to ensure that voters’ choices are accur­ately recor­ded.  Many features that would make voting systems more access­ible are new to the market or still in devel­op­ment.

            With respect to the way in which voting machines are used, the reports found that, regard­less of the specific tech­no­logy used, there is still much each juris­dic­tion can do to ensure that elderly voters’ choices are accur­ately recor­ded and coun­ted.  The reports laid out a number of basic usab­il­ity and access­ib­il­ity prin­ciples that offi­cials should adopt when making decisions about using voting machines, ranging from where machines should be placed in the polling place to the type of ballot design that should be employed. 

            Just as import­ant, elec­tion offi­cials should work with older voters in their communit­ies to assess how access­ible and usab­il­ity their machines are, and what might be changed to ensure that voters can use them.  Good usab­il­ity and access­ib­il­ity test­ing of that includes older Amer­ic­ans is essen­tial to ensure that their inten­ded votes are accur­ately recor­ded.

            Thank you very much.

[1] The Bren­nan Center’s webpage devoted to the Craw­ford case, avail­able at http://www.bren­nan­cen­­ford_v_marion_county_elec­tion_board, contains all the Supreme Court filings in the case and a range of other resources.   The Bren­nan Center’s brief in that case is posted here: http://bren­

[2] See Brief Amici Curiae AARP and National Senior Citizens Law Center in Support of Peti­tioner, Craw­ford v. Marion County Elec­tion Bd., No. 07–21 (U.S. 2007) [here­in­after “AARP Brief”], at 7, avail­able at http://bren­­ab89f­be9edeb8_v6m6b­n­rlw.pdf.  For example, accord­ing to the U.S. Census Bureau, in the 2004 pres­id­en­tial elec­tion, 71.8% of citizens 55 and older repor­ted voting, as compared to 63.8% of all voting-age citizens.  U.S. Census Bureau, Voting and Regis­tra­tion in the Elec­tion of Novem­ber 2004: Popu­la­tion Char­ac­ter­ist­ics 4 (Mar. 2006),–556.pdf.

[3] AARP Brief at 8 (citing Admin­is­tra­tion on Aging, U.S. Dep’t of Health and Human Services, A Profile of Older Amer­ic­ans: 2006 (last updated July 12, 2007),­ist­ics/profile/2006/profiles2006.asp).

[4] Those states include: Alabama, Arkan­sas, Cali­for­nia, Color­ado, Flor­ida, Geor­gia, Illinois, Iowa, Kansas, Maine, Massachu­setts, Michigan, Missis­sippi, Missouri, Montana, New Hamp­shire, North Caro­lina, New Mexico, New York, Nevada, Oregon, Oklahoma, Pennsylvania, Rhode Island, South Caro­lina, Tennessee, Texas, Utah, Virginia, Wash­ing­ton, West Virginia, and Wiscon­sin.

[5] Those states include: Color­ado, Illinois, Mary­land, Missis­sippi, Missouri, New Mexico, Oklahoma, Tennessee, and West Virginia.

[6] Those states are Texas, which just held a hear­ing on voter ID and fraud on Janu­ary 25, 2008, and Kansas.

[7] Those states include: Color­ado, Geor­gia, Kansas, Massachu­setts, Mary­land, Michigan, Missis­sippi, Missouri, New York, Rhode Island, South Caro­lina, Tennessee, Virginia, and Wash­ing­ton.

[8] 42 U.S.C. § 15483(b) (requir­ing first-time voters who register by mail and whose regis­tra­tion inform­a­tion the state is unable to match with an exist­ing state record to show either a photo ID or one of a vari­ety of non-photo IDs).

[9] All three of those laws have been chal­lenged in court.  The Missouri Supreme Court struck down the Missouri law under the state consti­tu­tion, and so it is no longer in effect.  Wein­shenck v. Missouri, 203 S.W.3d 201 (Mo. 2006).  Prior versions of the Geor­gia law were enjoined by federal and state courts, Common Cause/Geor­gia v. Billups, 439 F.Supp.2d 1294 (N.D. Ga. 2006); Perdue v. Lake, 647 S.E.2d 6 (2007).  An amended version of Geor­gi­a’s law was upheld by a federal court and is now on appeal.  Indi­ana’s law is currently being considered by the U.S. Supreme Court after being upheld in lower courts.

[10] See Ltr. from Chris­topher Coates, Acting Chief, U.S. Dep’t of Justice Voting Section, to Flor­ida Attor­ney General Bill McCul­lom and Assist­ant General Coun­sel Maria Matthews, Jan. 23, 2008, avail­able at http://www.bren­nan­cen­­cracy/AR-M620U_20080124_105007.pdf (preclear­ing Flor­id­a’s amended voter ID law with the under­stand­ing that provi­sional ballots cast by voters without photo ID will count so long as the signa­tures match).

[11] Ariz. Rev. Stat. § 16–579. 

[12] Bren­nan Center for Justice at NYU School of Law, Citizens Without Proof: A Survey of Amer­ic­ans’ Posses­sion of Docu­ment­ary Proof of Citizen­ship and Photo Iden­ti­fic­a­tion, at 3 (Nov. 2006), http://www.bren­nan­cen­­load_file_39242.pdfcf. Robert Green­stein et al., Center for Budget and Policy Prior­it­ies, Survey Indic­ates House Bill Could Deny Voting Rights to Millions of U.S. Citizens (Sept. 22, 2006),–22–06id.htm.

[13] Citizens Without Proof, supra note 12, at 3.

[14] Matt A. Barreto, Stephen A. Nuño & Gabriel R. Sanc­hez, The Dispro­por­tion­ate Impact of Indi­ana Voter ID Require­ments on the Elect­or­ate (Work­ing Paper, Wash­ing­ton Insti­tute for the Study of Ethni­city and Race), Nov. 8, 2007, at 11, 14, at http://depts.wash­ing­­ments/Indi­ana_voter.pdf.  The study also found that 21.8% of black Indi­ana registered voters (and when non-registered citizens are included, 28.3% of eligible black Indi­ana citizens) do not have valid photo IDs.

[15] Id. at 18.

[16] John Pawas­arat, Employ­ment and Train­ing Insti­tute, Univer­sity of Wiscon­sin-Milwau­kee, The Driver License Status of Voting Age Popu­la­tion in Wiscon­sin, at 1 (June 2005), avail­able at http://www.bren­nan­cen­­load_file_50902.pdf.

[17] M. V. Hood III & Charles S. Bullock, III, Worth A Thou­sand Words?: An Analysis of Geor­gi­a’s Voter Iden­ti­fic­a­tion Stat­ute, at 14 fig. 1 (April 2007) (presen­ted at March 2007 Annual Meet­ing of the South­west­ern Polit­ical Science Asso­ci­ation), avail­able at http://www.bren­nan­cen­­load_file_50886.pdf.

[18] Accord­ing to the Indi­ana AARP’s survey of its registered voters, 3% of those 60 and older and 6% of those 75 or older had neither a valid driver’s license nor a state-issued iden­ti­fic­a­tion card.  See Indi­ana Demo­cratic Party v. Rokita, 458 F. Supp. 2d 775, 824 n.73 (citing Susan L. Silber­man, Indi­ana AARP, Voter Iden­ti­fic­a­tion in Indi­ana: A Demo­graphic Analysis of Impact on Older Indi­ana Citizens (Oct. 2005)).  And accord­ing to the Geor­gia chapter of the AARP, 36 percent of Geor­gi­ans over age 75 do not have a driver’s license.  See Deanna Wrenn, Three States Debate Requir­ing Voters to Show ID, Ventura County Star, Mar. 31, 2005, at 6.

[19] See AARP Brief, supra note 2, at 9 (noting that 17 states, includ­ing Indi­ana, require older drivers to renew their licenses more frequently than other drivers; at least 10 states require a special vision screen­ing for older drivers, and some require a phys­i­cian’s note attest­ing to the indi­vidu­al’s fitness for driv­ing; and 17 states require older drivers to appear in person at the DMV to renew their licenses).

[20] U.S. State Dep’t, Frequently Asked Ques­tions about the New Travel Docu­ment Require­ments, (last visited Jan. 28, 2008).

[21] Ind. Code § 16–37–1–11; 16–37–1–11.5.

[22] U.S. Dep’t of State Bureau of Consu­lar Affairs, Pass­port Fees,­port/get/fees/fees_837.html (last visited Jan. 28, 2008).

[23] U.S. Citizen­ship and Immig­ra­tion Serv., Applic­a­tion for Replace­ment Natur­al­iz­a­tion/Citizen­ship Docu­ment, (last visited Jan. 28, 2008); U.S. Citizen­ship and Immig­ra­tion Serv., Frequently Asked Ques­tions about Natur­al­iz­a­tion,­item.5af9b­b95919f35e66f614176543f6d1a/?vgnext­oid=ee14b4ac0933e010Vgn­VCM1000000ecd190aR­CRD&vgnextchan­nel=fe529c7755cb9010Vgn­VCM10000045f3d6a1R­CRD (last visited Mar. 5, 2008).

[24] Robert Green­stein et al., supra note 12, at 3; accord Famil­ies USA, Citizens Update: Admin­is­tra­tion Creates Addi­tional Barri­ers to Medi­caid Enroll­ment 6 (2006), http://www.famil­­ship-Update.pdf.

[25] For example, the Indi­ana Bureau of Motor Vehicles turns away 60% of applic­ants for photo ID because they do not have the required support­ing docu­ments.  See Brief for Peti­tion­ers Indi­ana Demo­cratic Party et al., Craw­ford v. Marion County Elec­tion Bd., No. 07–25, at 13 (U.S. 2007) (citing record evid­ence).

[26] For example, 72% of Amer­ic­ans 80 and older in 2002 repor­ted having disab­il­it­ies, as compared to 18% of all Amer­ic­ans.  AARP Brief, supra note 2, at 28 (citing U.S. Census Bureau, Table 1, Preval­ence of Disab­il­it­ies by Age, Sex, Race, and Hispanic Origin: 2002, avail­able at­il­ity/sipp/disab02/ds02t1.pdf.

[27] See id. at 23 (citing S. Shapiro, Devel­op­ment of Birth Regis­tra­tion and Birth Stat­ist­ics in the United States, 4 Popu­la­tion Stud­ies 86, 99 (1950) (cita­tion omit­ted)).

[28] See id. (citing same).

[29] Citizens Without Proof, supra note 12, at 2.

[30] See Ind. Code § 3–11–10–22(c).

[31] Ind. Code § 3–11.7–5–2.5.  A citizen with photo ID but who did not present it at the polls may also have her provi­sional ballot coun­ted if she presents it at one of these offices within the ten-day window.

[32] Indi­ana Demo­cratic Party v. Rokita, 458 F. Supp. 2d 775, 778 (S.D. Ind. 2006).

[33] Id.

[34] Brief of League of Women Voters of Indi­ana, Craw­ford v. Marion County Elec­tion Board, Nos. 07–21, 07–25, at 9–12 (2007), avail­able at http://bren­­f0b4162702f06_4xm6iibjy.pdf.

[35] Brief of Respond­ent Marion County Elec­tion Board, Craw­ford v. Marion County Elec­tion Bd., Nos. 07–21, 07–25, at 16–17 (2007), avail­able at http://bren­

[36] Ian Urbina, Voter ID Laws Are St to Face a Crucial Test, New York Times, Jan. 7, 2008, at A1l.

[37] Justin Levitt, The Truth About Voter Fraud (2007), http://bren­­b075b482b_wcm6ib0hl.pdf (review­ing alleg­a­tions of voter fraud cited by state and federal courts, multi­par­tisan and bipar­tisan federal commis­sions, polit­ical party entit­ies, state and local elec­tion offi­cials, and authors, journ­al­ists, and blog­gers).

[38] Id. at 7–11.

[39] 42 U.S.C. § 1973i(c), (e); 42 U.S.C. § 1973gg-10.

[40] This conclu­sion is based on the Bren­nan Center’s detailed analysis of all 250 alleged reports of fraud described in all the briefs support­ing in the case.  See Justin Levitt, Analysis of Alleged Fraud in Briefs Support­ing Craw­ford Respond­ents, Dec. 31, 2007, http://www.truth­about­­fordAl­leg­a­tions.pdf

[41] Id.

[42] Most notably, the Voting Rights Act of 1965 provides more protec­tions for minor­ity voters than the Consti­tu­tion.

[43] Making Emer­gency Supple­mental Appro­pri­ations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109–13, 119 Stat 231 (codi­fied in relev­ant part at 49 U.S.C. § 30301 note (2005)).

[44] See

[45] For more inform­a­tion, see Wendy R. Weiser and Jonah Gold­man, An Agenda for Federal Elec­tion Reform (2007), at http://www.federalelec­tion­re­­per.pdf.

[46] Lawrence Norden et al., The Machinery of Demo­cracy, Voting System Access­b­il­ity, Oct. 10, 2006, at http://www.bren­nan­cen­­cracy_voting_system_access­ib­il­ity

[47] Lawrence Norden et al., The Machinery of Demo­cracy: Usab­il­ity of Voting Systems, Aug. 28, 2006, at http://www.bren­nan­cen­­cracy_voting_system_usab­il­ity.