Voter Photo ID and Privacy
- Federal Appeals Court Strikes Down Texas Voter ID Law: A federal appeals court has ruled that a Texas voter ID law violates the Voting Rights Act. In a fractured opinion, the court held that Senate Bill 14 had a “discriminatory effect” on minorities’ voting rights, and remanded the case to the lower court. The appeals court instructed the district court to provide interim relief for individuals, which could include suspending the voter ID requirement, ahead of the November 2016 election. EPIC filed an amicus brief in the case, arguing that SB 14 also places an unconstitutional burden on voters’ rights to informational privacy because of the excessive collection of personal data. (Jul. 20, 2016)
- EPIC Urges Appeals Court to Strike Down Voter ID Law: EPIC has urged a federal appellate court to find unconstitutional a Texas law that requires voters to obtain photo IDs. A lower court held that Senate Bill 14 violates the Voting Rights Act and burdens the constitutional right to vote. Texas appealed. In response, EPIC argued that the ID requirement also burdens the constitutional right of informational privacy. “Individuals should not be subject to excessive identification requirements to exercise fundamental democratic rights,” EPIC stated. EPIC has previously filed amicus briefs defending the right to informational privacy. (May. 17, 2016)
- Federal Court Strikes Down Texas Voter ID Law + (Aug. 6, 2015)
- Supreme Court Strikes Down Voter ID Law + (Oct. 10, 2014)
- Federal Court Panel Blocks South Carolina Voter ID Requirement + (Oct. 15, 2012)
- Pennsylvania Judge Blocks Voter ID Requirement + (Oct. 3, 2012)
- Pennsylvania to Reconsider Voter ID Law + (Sep. 21, 2012)
- 2012 Democrat Platform Endorses Internet Privacy + (Sep. 4, 2012)
- Federal Appellate Court Strikes Down Texas Voter ID Law + (Aug. 30, 2012)
- 2012 Republican Platform Addresses Privacy and Government Surveillance + (Aug. 29, 2012)
- Second Wisconsin Judge Strikes Down State Voter ID Law + (Jul. 23, 2012)
- Senate Judiciary Holds Hearing on Voter Suppressions + (Jun. 27, 2012)
- Federal Appeals Court Backs Justice Department in Voting Rights Dispute + (May. 18, 2012)
- District Court Panel Admonishes South Carolina in Voter ID Case + (Apr. 26, 2012)
- Justice Department Strikes Down Texas Voter ID Law + (Mar. 12, 2012)
- Court Blocks Wisconsin Voter ID Law + (Mar. 6, 2012)
- Senators Seek Study on Voter ID Laws + (Feb. 29, 2012)
- Virginia Senate Narrowly Approves Voter ID Law + (Feb. 28, 2012)
- Justice Department Challenges South Carolina's Voter ID Law + (Dec. 28, 2011)
More top news
In the US, voting civil rights advocates are locked in a struggle with federal, state and local authorities over more restrictive voter identification and authentication requirements. This clash over poll place practices and voter ID requirements was initially triggered by the passage of the Help America Vote Act of 2002, which increased federal election requirements for first-time voters who register to vote by mail. These requirements include that voters provide a form of identification prior to voting in person for the first time. According to the Act, acceptable forms of identification could include a photo ID, "utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter."
While new ID requirements might appear minor to most voters, they threaten both privacy for all US voters and civil rights for marginalized voter populations. Similarly, while the states raise barriers to in-person voter participation through the new requirements, they leave the gate wide open to actual voter fraud threats posed by absentee voting.
EPIC has a long history of working on voter privacy issues, which this government issued photo ID requirement strongly affects. In a March 2007 statement to the U.S. House Committee on the Judiciary, EPIC cautioned against new photo identification and proof of citizenship requirements for federal elections. Absent evidence of an actual problem, EPIC warned that the requirements could discourage legal voters. EPIC noted that Congress has already provided for provisional ballots for instances when there are doubts about the status of voters seeking to cast ballots in public elections.
In 1992, EPIC filed a voter registration privacy case in Greidinger over the state of Virginia's practice of collecting Social Security Numbers and making them publicly available. In that case EPIC prevailed by the decision of the court to prohibit the state of Virginia from requiring citizens who wish to register to provide a Social Security Number.
In 2007, EPIC filed a brief in the Crawford v. Marion County, strict voter government issued ID case to protect voting privacy rights of Indiana voters. Challenging the position of the state that the government issued photo ID requirement would add security to state elections. Further, the state of Indiana's poll worker training material on photo ID's used by the state to educate poll workers on acceptable and unacceptable photo IDs was questionable.
Voter identification laws can generally be categorized in two ways: First, photo vs. non-photo identification required. Second, non-strict (voters without acceptable ID have an option to cast a ballot that will be counted without further action on the part of the voter, either by signing an affidavit or having a poll worker "vouch" for the voter) and strict (voters without acceptable identification must vote on a provisional ballot and take steps in order to have their vote counted).
In 2016, 17 US states (CA, IL, IA, ME, MD, MA, MN, NE, NV, NJ, NM, NY, OR, PA, VT, WV, WY) and the District of Columbia verify voter information without ID documents.
Sixteen states (AK, AZ, AR, CO, CT, DE, KY, MO, MT, NH, OH, NC, OK, SC, UT, WA) require one of several forms of non-photo voter identification, including utility bills or bank statements. Three of these states, Arizona, and Ohio have a strict law in place, meaning voters without acceptable non-photo identification must vote on a provisional ballot and take steps in order to have their vote counted.
Voters in eight states (AL, FL, HI, ID, LA, MI, RI, and SD) have "non-strict voter photo ID laws," meaning voters are requested to show a photo ID, but if they do not hold one they have several other options, including providing other forms of personal information or signing an affidavit of their identities, or another voter with a photo ID can attest to the identity of a voter without a photo ID.
Nine US states have so-called "strict voter photo ID laws," which restrict voting rights to those who hold a government-issued photo identification document. In early 2011 only two states, Georgia and Indiana, had enacted "strict voter ID" laws. Since then, Kansas, Mississippi, North Dakota, Tennessee, Virginia, Texas (see note) and Wisconsin have enacted laws requiring voters to show a government-issued photo identification document. [Texas Note: In August 2015, the Fifth Circuit Court of Appeals ruled that the strict Texas voter ID requirement is unlawful because it would disproportionately burden minority voters. The case is currently awaiting an en banc hearing.] Arkansas enacted a strict photo voter ID law, but it was struck down by the Arkansas Supreme Court.
Voting in the US was initially limited to white male landholders, but this civil right was gradually extended to include non-landholders, persons of color, women, and 18-20- year-olds. Historically, however, each extension of voting rights was not always welcomed by local and state officials due to the legacy of slavery, ethnic codes, and other laws that limited the civil rights of women, poor whites, blacks, Hispanics, Asians, Native Americans, and new citizens.
Union Army occupation of the South following the Civil War instituted civil rights reform that allowed former slaves to vote, which made possible a large number of free black citizens to hold local, state, and federal office. However, predominantly Southern states were particularly creative in establishing "Jim Crow" laws to restrict the voting rights of former slaves. These laws focused on establishing polling place practices intended to prevent certain voters from participating in public elections. These measures included "Grandfather Clauses," "Intelligence Tests," and "Literacy Tests." Many tests were impossible to answer, such as: "How many bubbles are in a bar of soap?"
To further remove minority and poor white voters from the voting process, local governments imposed "poll taxes," which required voters to pay a fee to vote in public elections. These practices, joined with violence against those who challenged these polling practices, effectively removed from public office every black Congressional office holder elected during Reconstruction.
The civil rights movement of the 1950s and 1960s dismantled the "Jim Crow" laws. Congress passed the 24th Amendment to the US Constitution on August 27, 1962 and the Amendment was ratified by two-thirds of the nation's state legislatures by September 23, 1962. The 24th Amendment prohibits a state or the federal government from requiring a "fee" from voters in order for them to cast a ballot in federal public elections. The Voting Rights Act of 1965 provided additional tools to protect voters from discrimination and violence, by establishing the Department of Justice as the federal agency with the power to sue states that restricted the voting rights of minorities.
Increased voter identification requirements oblige voters to obtain at least one form of identification for which the state typically collects a fee. Some states allow persons who cannot afford a card to obtain one for free; however, this method can require documented proof of identity, state residency, citizenship and indigence or income. Voter registration applicants are often required to apply for such cards well in advance of an election. The current economy will place additional burdens on a larger number of voters than at any time in recent history, as well as added expenses to states, at a time when state, local, and personal budgets are under extreme stress. States also must provide transparency to voters regarding voting changes, and offer adequate resources to meet the rush of demand for photo identification or other forms of acceptable documents that can be obtained in time for voters to participate in the next election.
Increased voter identification requirements oblige all citizens presenting themselves at voting locations - the vast majority of whom presumably arouse no suspicion - to disclose not only their names but also all information that appears on their form of government-issued photo identification. Further, voters are required to present the cards not to police but to poll workers, most of whom are neither professionally licensed in law enforcement nor permanent government employees. Voting ID requirements mandate self-identification not in the context of criminal apprehension but as a condition to an innocent person's exercise of the constitutional right to vote.
The most common form of government-issued photo identification is a driver's license, which includes the voter's name and photographic likeness but also may include such information as the voter's age, height, weight, driver's license number, restrictions owing to disability or impairment (such as for imperfect vision or a prosthetic limb), and fingerprints. Furthermore, states, rather than voters, have sole control over the information placed into a state-issued ID card, and the applicant for such identification cannot choose to withhold certain data. Changes in the design and content of driver's licenses and other state-issued identification are also at the government's discretion. Any changes may not consider the requirements set forth by state laws governing voter ID requirements.
Furthermore, in recent years states have increased the numbers and types of documents required to obtain state-issued drivers licenses or other identification documents. These requirements have proven to be costly and in some cases burdensome because the funds necessary for purchasing them or the underlying documents were impossible to obtain.
The cumulative effects of what many would deem a minor burden on voter rights would be substantial over time because checking papers, according to University of Toledo professor DJ Steinbock, has "an additional subjective effect on a grand scale: the psychic harm to free people of having to ‘show your papers'.... Not only would people forced to go through identity checkpoints experience some degree of fear and surprise, but also knowing that this has become a permanent part of the social fabric would diminish their sense of liberty."
- EPIC: Veasey v. Abbott (Texas Voter ID)
- EPIC: Voting Privacy
- The Texas Voter ID Law and the 2014 Election: A Study of Texas's 23rd Congressional District, Gov. Bill Hobby, Mark P. Jones, Jim Granato, and Renee Cross (August 2015)
- Voter Identification Requirements: Background and Legal Issues, Congressional Research Service (November 2014)
- Issues Related to State Voter Identification Laws, Government Accountability Office (Sept. 2014)
- Voter Verification Without Identification Documents, National Conference of State Legislatures
- Voter ID: The Courts, a presentation by Jessica Karls-Ruplinger, Wisconsin Legislative Council, at NCSL's 2014 Legislative Summit
- Voter ID in the Courts: An introduction to legal challenges to voter ID laws, Karen Shanton, National Conference of State Legislatures (May 2014).
- National Conference of State Legislatures' History of Voter ID
- The Potential Impact of Voter Identification Laws on Transgender Voters, Jody L. Herman, The Williams Institute, April 2012
- Brennan Center Voter ID Report
- Race-Specific Perceptual Discrimination Improvement Following Short Individuation Training With Faces
- Can Voter ID Laws Be Administered in a Race-Neutral Manner? Evidence from the City of Boston in 2008, Rachael Cobb, D. James Greiner, Kevin Quinn (June 2010).
- Perceptual Other-Race Training Reduces Implicit Racial Bias
- Help America Vote Act of 2002
- GREIDINGER v. State of Virginia (Use of the SSN)
- Voting Rights Act
- EPIC: 2007 House Testimony on Voting Rights and Privacy
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Communications Law and Policy
Jerry Kang and Alan Butler