Voter ID: A Costly, Unnecessary Abuse of the Constitution

This blog appears in the August, 2012 Minnesota Bench & Bar Journal.

From its 1858 statehood Minnesota has been a leader in voting rights.  We take pride in the fact that Minnesota leads in the nation in voter turnout, and it has a history and bipartisan tradition of encouraging citizen engagement.  Minnesota is also a state of common sense, embodying a pragmatic “If it ain’t broke don’t fix it” mentality.  It is for these two reasons and the cost borne to the state and individuals that the proposed amendment requiring voter identification at the polls should be rejected.

Minnesota’s Constitutional Tradition

Minnesota in its constitutional convention was one of the first states to debate voting rights for African-Americans.  Even though both the United States and Minnesota supreme courts have declared voting to be a fundamental right,¹ it is textually explicit in Article VII of the State Constitution. Among the 211 previous attempts to change Minnesota’s constitution, 12 adopted amendments have addressed individual rights, with five of them seeking to expand voting rights.  In the entire history of the state only one constitutional amendment, in 1896, restricted voting rights.  Here it limited the practice in place that allowed aliens or noncitizens to vote in Minnesota.  Minnesota’s tradition then is one of expanding the franchise, not limiting it.

The voter ID amendment is an abuse of our constitution and tradition.  Minnesota’s Bill of Rights offers more protection for individuals than found at the federal level. We protect freedom of conscience and privacy more vigorously than does the U.S. Bill of Rights. We also protect some rights—hunting and fishing, and peddling farm produce—that are not found at the federal level. We have constitutionalized our commitment to education and support for the environment and the arts. This reflects our culture and who we are.

The voter ID amendment wrongly sidesteps the political process and challenges our state identity. Instead of trying to use the normal legislative process, it is an effort to bypass it and our legacy.

The Absence of Fraud

Some will claim that voter photo identification is needed to prevent voter impersonation and fraud at the polls. The reality is that in-person voter fraud is so insignificant in Minnesota and around the country that one has a better chance of being struck by lightning than having it affect the outcome of an election.³

What evidence does exist documenting voter fraud?  Nationally, the three most persistent claims of voter fraud come from the Wall Street Journal’s John Fund,⁴ a report from the Senate Republican Policy Committee in Congress,⁵ and the Carter-Baker Report.⁶ None of these studies have documented provable and significant voter fraud.  The Carter-Baker report asserts that: “[W]hile election fraud is difficult to measure, it occurs.”⁷ Proof of this assertion is citation to 180 Department of Justice investigations resulting in convictions of 52 individuals from October 2002 until the release of the report in 2005.⁸ Yet while the Carter-Baker Commission called for photo IDs, it also noted that: “[T]here is no evidence of extensive fraud in U.S. elections”⁹ As with other studies, absentee voting is singled out as the place where fraud is most likely to occur.¹⁰ 

As the Brennan Center stated in its analysis and response to the Carter-Baker call for a voter photo ID: “None of the Report’s cited examples of fraud stand up under closer scrutiny.”¹¹ Even if all of the documented accounts of fraud were true, the Brennan Center points out that in the state of Washington, for example, six cases of double voting and 19 instances of individuals voting in the name of the dead yielded 25 fraudulent votes out of 2,812,675 cast—a 0.0009 percent rate of fraud.¹² Also, assume the 52 convictions by the Department of Justice are accurate instances of fraud.  This means that 52 out of 196,139,871 ballots cast in federal elections, or 0.00003 percent of the votes, were fraudulent.¹³ The chance of being struck by lightning is 0.0003 percent. 

Similarly, Minnesota is devoid of significant in-person voter fraud.  The state has witnessed two close elections and recounts in 2008 with the senate contest between Al Franken and Norm Coleman and then in 2010 with Mark Dayton and Tom Emmer.  In both cases the recounts failed to show any real in-person voter fraud or impersonation at the polls.  Even in its oral arguments before the Minnesota Supreme Court in Coleman v Franken,¹⁶ Coleman’s attorney Joseph Friedberg, when asked by a Justice whether widespread voter fraud existed, conceded that it had not.

The Minnesota Majority has alleged many instances of voter fraud over the years.  Mike Freeman, Hennepin County Attorney, has investigated many of them in his jurisdiction.  He found none involving in-person voter fraud.  Yes, 40 ineligible felons voted, but voter ID would not prevent that because drivers’ licenses do not indicate criminal records.¹⁷ In 2008 seven voter-impersonation charges were investigated by Minnesota county attorneys; there were no convictions.¹⁸

Some election fraud may exist, but it is de minimis in Minnesota.  It takes place not at polling places but as studies have repeatedly pointed out, in the absentee voting process which will not be addressed by voter ID.

The Costs of Voter ID

What are the costs associated with adopting the amendment?  Minnesota will spend millions of dollars issuing identifications for those who currently lack them.  The Secretary of State has estimated that 215,000 Minnesota adults lack a state-issued ID. Minnesota and local governments will spend millions of dollars to implement the new ID requirements. Additionally, individuals will bear costs to secure these IDs.  In Weinschenk v. State¹⁹ the Missouri Supreme Court noted that approximately 3 percent to 4 percent of the state population lacked an appropriate identification to vote under its voter ID law.  It found that for many the costs of getting the ID were significant, even if the state issued it for free.  Many individuals lacked state birth certificates, or were born out of state, or naturalized, and they lacked the required documents to secure the state ID.  Many of these documents cost money, in addition to the time and ability to navigate the bureaucracy to obtain them.²⁰  For these reasons, the Missouri Supreme Court invalidated its voter ID law under its state equal protection and right to vote clauses.

Many of the individuals who lack valid IDs are the elderly in nursing homes, recent immigrants to the state, students away at school, and those who have recently moved into a new home or apartment.  Imagine trying to get your elderly mom or grandmother out of a nursing home and into a state driver’s license office to get new photo identification.  The costs to these individuals may be enough to disenfranchise or discourage them from voting.

Legal Issues

Finally there are the legal issues surrounding voter ID that could delay implementation for years and cost million to defend.  The Supreme Court did uphold Indiana’s voter identification law, but it was a facial challenge.  The Court did note that as applied challenges are possible if the law is discriminatory. In Minnesota, challenges to the voter ID amendment could range from violation of the single-subject rule²¹ to concerns over vagueness in determining what constitutes a “valid” photo identification as described in the amendment’s description.

Conclusion

The voter ID amendment is bad public policy.  It runs against the grain of the state’s constitutional tradition of expanding rights and encouraging voting, it is not needed given the absence of significant in-person fraud, and it will be costly to the state and citizens.

Notes

¹ Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966); State ex rel. South St. Paul v. Hetherington, 240 Minn. 298, 303, 61 N.W.2d 737, 741 (1953).

² “Wisconsin Recall Exit Polls: How Different Groups Voted,” New York Times (06/05/2012) http://tinyurl.com/7h7oey8 (site last visited on 07/23/2012).

³ David Schultz, “Less than Fundamental: The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement,” 34 William Mitchell L. Rev. 484 (2008); David Schultz, “Lies, Damn Lies, and Voter IDs: The Fraud of Voter Fraud,” Harv. L. & Pol. Rev. On-line (03/17/2008). Available at http://tinyurl.com/28j5qcq (site last visited on 07/23/2012).

⁴ John Fund, Stealing Elections: How Voter Fraud Threatens Our Democracy. San Francisco: Encounter Books, 2004.

⁵ United States Senate Republican Policy Committee. “Putting an End to Voter Fraud” (2005). Document located at http://rpc.senate.gov/_files/Feb1504VoterFraudSD.pdf (site last visited on 01/02/2012).

⁶ Center for Democracy and Election Management, American University.  “Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform” (2005), [hereinafter Carter-Baker Commission].  Document located at http://www.american.edu/ia/cfer/report/full_report.pdf (site last visited on 07/23/2012).

⁷ Id. at 45.

⁸ Id.

⁹ Id.

¹⁰ Id. at 46.

¹¹ Wendy Weiser et al., Response to the Report of the 2005 Commission on Federal Election Reform. New York: Brennan Center for Justice (09/19/2005), p. 9 (emphasis omitted). Available online at http://tinyurl.com/d7vamom (site last visited on 07/23/2012).

¹² Id.

¹³ Id. at 10.

¹⁴ 553 U.S. 181 (2008)

¹⁵ Indiana Democratic Party v. Rokita. 2006. 458 F.Supp.2d 775, 792 (D. Ind. 2006).

¹⁶ 767 N.W.2d 453 (Minn. 2009).

¹⁷ Mike Freeman, “Hennepin County Attorney:  Historically We Expand Voting Rights,” Star Tribune (02/20/ 2011).

¹⁸ Jay Weiner, “Voter ID issue advances at Capitol, but facts continue to get in the way,” Minnpost, located at http://tinyurl.com/7fthfpg (04/25/2011) (site last visited on 07/23/2012).

¹⁹ 203 S.W.3d 201 (Mo. 2006).

²⁰ Id. at 214-15.

²¹ Minnesota Constitution, Article IV, section 17:  “No law shall embrace more than one subject, which shall be expressed in its title.”