After raising the alarm in 2008 that voter fraud could tip the election to Democrats, Republicans are using their victories in last fall’s gubernatorial and state legislative contests to ensure that their fears of deception at the polls don’t materialize in future elections.
In key 2012 battleground states, Republican legislators and governors have been moving to change election laws in order to deter vote fraud, or Democrats say, to limit the number of voters.
In the latest move, Wisconsin Gov. Scott Walker, a Republican, signed legislation on Wednesday that will require people to show photo identification when they vote.
Similar bills are being debated in Ohio, North Carolina, Iowa, New Hampshire, and Missouri, all of which were hotly contested in recent presidential elections.
If a voter ID bill is passed by the North Carolina legislature — in which both chambers are Republican controlled — Democratic Gov. Bev Perdue is poised to veto it. According to her spokeswoman Chris Mackey, Perdue has said she would "resist any bill that limits voter access."
In Texas, a voter photo ID bill is on Republican Gov. Rick Perry’s desk, undergoing review by his staff. Perry has until Monday to sign it, veto it, or let it become law without his signature. Perry designated photo ID as a high-priority item for the legislature so he seems likely to sign it.
According to the National Conference of State Legislatures, 11 states, including Wisconsin, request or require photo ID for voters.
Florida limits early voting window
Meanwhile in Florida, another battleground state, Republican Gov. Rick Scott last week signed a law reducing the number of early voting days from 14 to eight. It also adds new rules for voters who change addresses and imposes new requirements on groups, including labor unions, that register new voters.
Chris Cate, a spokesman for Florida Secretary of State Kurt Browning, said the new law increased the number of early voting hours from eight hours a day to 12 possible hours in a day. He said, “We have made early voting more accessible to working voters who under the previous law, were restricted to early voting hours that primarily occurred during the common work day.”
Given that Florida is a likely battleground in the 2012 presidential contest, “potentially you would have a real effect on turnout there, but we don’t really know because there hasn’t been a lot of study done on changing the (early voting) window,” said political scientist Michael McDonald, an expert on voter turnout at George Mason University.
The Ohio House has also passed a bill to shorten the early voting period; the state Senate has yet to act.
Changing voting procedures could have an effect on who votes, not only in the presidential election but in Senate contests next year in Wisconsin, Florida, Missouri, and Ohio.
Maryland Gov. Martin O’Malley, the head of the Democratic Governors Association, said the Wisconsin law “is clearly targeted at Democratic voters” and “it’s no coincidence that these bills are getting rammed through in key swing states just in time for the 2012 election.”
Need an ID to buy cold medicine
But Walker said last week that his state’s new photo identification law “will go a long way to eliminate the threat of voter fraud. If you need an ID to buy cold medicine, it’s reasonable to require it to vote.”
Charges of vote suppression might be one way for Democrats to try to mobilize young, minority, and poor voters next year.
But compared to the 2004 election, voter turnout went way up, not down, in 2008 in both Georgia and Indiana after those states’ voter ID laws took effect.
Compared to 2004, Obama increased the Democratic vote in Indiana by 41 percent (and he won the state) and increased it in Georgia by nearly 35 percent. The nationwide Democratic vote increased by 18 percent, compared to 2004.
The effect that these election law changes might have on turnout in 2012 is difficult to assess, due to scant evidence.
Measuring effect on turnout
McDonald said the evidence is that photo ID laws “seem to have minimal or negligible effect on turnout, but we’ve been able to observe just a few elections after the adoption of these laws. Elections are very idiosyncratic, so until we can observe more elections, we won’t really know what the long-term turnout effect of these laws may be.”
But he said people without drivers’ licenses, disproportionately the poor, young and elderly, would be especially affected by photo ID requirements.
“It’s very difficult to trace the precise effect of ID laws on actual turnout, since there are so many things that can affect participation,” said Daniel Tokaji, an election law expert at Ohio State University’s Moritz College of Law.
But, he said “there is considerable evidence about who doesn’t have government-issued photo ID, which shows that certain groups – such as elderly, disabled, minority, and poor voters — are likely to be especially hard hit.”
Tokaji said the bill passed by the Ohio House to require photo ID for voters “adds to the individual costs of voting — both in terms of money and time — with the ultimate result of reducing participation by the Democratic-leaning voters who don't already have the required ID. It's certainly no accident that student ID, even from a state school, is left off the list."
However, unlike the Ohio House bill, Wisconsin's law would allow students wanting to vote to use a valid identification card issued by a university or college in Wisconsin, or allow a person to obtain a free state ID if he cannot afford the fee.
But Tokaji said the Republicans are aiming at the wrong target. Most documented vote fraud involves mail-in absentee ballots — and yet the proposed Ohio legislation does not address that problem. “This reveals that the issue of voter fraud is a red herring — especially when one considers the utter lack of evidence that voter impersonation at the polls is a significant problem,” he said.
“If you really wanted to go after fraud you would go after mail balloting,” agreed McDonald.
Supreme Court upholds photo ID law
The idea of requiring voters to show photo identification got its biggest lift when the Supreme Court upheld the Indiana photo ID law in 2008.
In the stolen mayoral election cited in that decision, the winner benefited from fraudulent absentee ballots in East Chicago, Ind. The trial judge found that his campaign workers pressured first-time voters, those “lacking in knowledge of the voting process,” and “those with limited skills in the English language” to vote by absentee ballot, filled out ballots for them, and even paid some for their votes.
“Not only is the risk of voter fraud real,” wrote Justice John Paul Stevens in the majority opinion, but “it could affect the outcome of a close election.” But skeptics say it would be impossible to pull off such a fraud in a statewide election because so many people would need to be included in the conspiracy.
Unlike the Indiana litigation, the legal challenges to early voting and voter ID laws in Florida, South Carolina, and — if they’re signed into law — in North Carolina and Texas, will be based on Section 5 of the 1965 Voting Rights Act which applies only to some states and counties.
The jurisdictions covered by Section 5 are required to get permission from the Justice Department or the federal court in Washington, D.C., before changing election procedures.
Will law make minority voters worse off?
The states will have to prove that the photo ID law “was not enacted with a purpose to discriminate against minority voters and won't make minority voters worse off than they were before,” said former Justice Department attorney Michael Pitts, a voting rights expert who teaches at the Indiana University School of Law.
“In the Indiana litigation, the persons claiming that photo ID violated the Constitution had the burden of proof; under Section 5, the persons claiming that photo ID does not violate the Voting Rights Act have the burden of proof,” Pitts said.
He added, “Both sides lack a lot of empirical proof related to the main contentions. Proponents of photo ID lack proof that it won't disfranchise citizens and opponents lack proof that it will disfranchise them. My guess is that a state will try to present evidence to show that the vast majority of registered voters have photo ID and that there are not disparities in terms of lack of photo ID between white and minority registered voters.”
It might not be as dramatic as the Supreme Court’s Bush v. Gore decision in 2000, but election litigation could end up playing a significant role in 2012.