REAL ID Update

April 2006

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By Melissa A. Savage, NCSL

In May 2005, President Bush signed into law the REAL ID Act. Under the this act, states are required to issue licenses according to prescriptive rules contained in the law. REAL ID prohibits states from issuing licenses to applicants who are in this country without documentation and creates security requirements for licenses and identification cards. Under the law, states are required to issue licenses and identification cards with an eight-year validity period that contains machine readable technology. Background checks and fraudulent document identification training are required for state department of motor vehicle employees. States also are required to verify the authenticity of all identity documents provided by applicants, scan copies of these documents, and store the data for 10 years. Databases containing information regarding applicant birth records and real property ownership must be used and maintained.

In late 2004, before passage of REAL ID, Congress passed legislation in response to recommendations made by the 9/11 Commission. Among the new provisions passed was a negotiated rulemaking process to establish new federal standards for the issuance of state driver’s licenses and identification cards. Under the negotiated rulemaking process, the Department of Transportation solicited interested parties—including the National Conference of State Legislatures, the National Governors Association and the American Association of Motor Vehicle Administrators—to serve on a negotiated rulemaking committee.

Once REAL ID passed, the negotiated rulemaking process was halted. Now, in accordance with REAL ID, the Department of Homeland Security is required to issue rules that the states will be required to follow when issuing driver’s licenses and identification cards. Preliminary information shows that many states are concerned about the implementation costs of REAL ID. In some states, estimates have been as high as an additional $33 per license or identification card. Many states are concerned that the act will require higher personnel and technology costs but that there will be no funding assistance available from the federal level.

A few states have considered legislation in favor of the REAL ID Act. In 2006, California, Indiana and New Mexico have debated bills that would require state compliance with REAL ID. The legislation in New Mexico and Indiana did not make it out of committee. The bill in California remains active.

Resolutions and bills have been introduced in New Hampshire and Washington in opposition to REAL ID. A resolution up for consideration in the New Hampshire Senate expresses the legislative opposition to the federal law. New Hampshire House Bill 1582 prohibits the state from participating in a national identification card system and declares that the REAL ID Act violates the New Hampshire Constitution. Resolutions calling on the president and Congress to repeal the REAL ID Act of 2005 were considered in Washington.

Action on the issue at the federal level during the last few years has not affected the ability of state legislatures to consider legislation on this issue. Many states have considered or are considering legislation to make the driver's licensing process more secure and tighten legal presence requirements. According to the National Immigration Law Center (NILC), 25 states have statutes that require applicants for driver’s licenses to be lawfully present under U.S. law. Another 14 states plus the District of Columbia outline lawful presence requirements through agency policy or through the documents required to apply for a license. In 2005, Georgia, Maine, Mississippi, New Hampshire, New York, North Carolina and Oregon considered bills relating to legal presence issues and the driver’s license process. Under a new law in Maine, applicants for a driver’s license must prove legal presence in the United States and, for those applicants who are unable to provide such proof, the secretary of state is required to inform the U.S. Department of Homeland Security. Currently, legislatures in Maine, New Hampshire and New York are considering legislation relating to lawful presence.

Since September 2001, nearly every state has considered legislation regarding the licensing of undocumented immigrants—someone who enters or lives in the United States without official authorization, either by entering illegally or by violating the terms of his or her admission. Supporters of restricting licenses to those who are lawfully present in the United States argue that driving is a privilege and that granting a license to undocumented immigrants encourages the influx of illegal immigrants through U.S. borders. They also argue that licenses should be granted only to people who legally reside in the United States, since the driver’s license is a major form of identification and is used not only to drive but also to open bank accounts and board airplanes.

Opponents of restricting license eligibility argue that, by not being able to apply for a license, these individuals are unable to obtain motor vehicle insurance or receive proper driver education and examination. Traffic safety concerns arise because, with or without a license, many are likely to continue driving. Opponents also question the effectiveness of resolving issues of lawful presence at the licensing office, when great concern exists regarding the ability of motor vehicle agencies to identify and include the vast number of documents that immigrants may present. With enactment of REAL ID, this argument is a not an issue.

According to provisions outlined in REAL ID, states will have the opportunity to issue nonconforming driver’s licenses and identification cards so long as a disclaimer on the face of the card states that the document may not be accepted for federal identification or any other official purpose. The card must have a unique color or design to alert federal agencies and other law enforcement personnel that it may not be accepted for any such purpose. Some states feel that these provisions will allow them to issue driving privilege cards or certificates of driving to undocumented immigrants.

Tennessee and Utah already have passed legislation creating a certificate of driving (Tennessee) and a driver privilege card (Utah). Both nonconforming licenses are clearly marked, denoting the fact that the documents are to be used only for driving and not as identification. In 2005, several bills were debated in Tennessee to repeal the certificate of driving; none passed. In February 2006, Tennessee suspended the certificate of driving program because of fraud within the program and an influx of non-Tennessee resident applications.

Before the new law in Utah passed, driver’s license applicants were able to provide individual taxpayer identification numbers (ITIN) in lieu of social security numbers. A state audit found that Utah was being used as a portal for undocumented immigrants to obtain driver’s licenses. According to the audit, more than 58,000 driver’s licenses and 37,000 identification cards had been issued to undocumented immigrants. Today, Utah issues driver’s licenses, driver privilege cards and non-driver identification cards.

In California, SB 60 passed the Legislature in September. The bill would have required the California Department of Motor Vehicles (DMV) to issue driver’s licenses and identification cards in accordance with the REAL ID Act. The bill also required the DMV to issue driving privilege cards that would permit driving but that could not be used for any official identification purpose. The governor vetoed the bill in October. California, Illinois and Virginia currently are debating bills that would create driving certificates.

Although some states have considered legislation to more broadly require compliance with REAL ID, others have taken a more incremental approach and have addressed specific pieces of REAL ID through multiple bills. For example, in 2005, Arkansas, Colorado, Georgia and Oregon passed other types of legislation relating to the issuance of driver’s licenses and identification cards. In Arkansas, the legislature approved a bill that will allow the state to enter into compact agreements to share driver’s license information with other states. Another bill passed in Arkansas makes several changes to the driver’s license issuance process, with the goal of increasing security and making use of the latest technology. Colorado and Georgia made changes to the length of time licenses are valid. In Colorado, licenses now are valid for five years instead of 10. In Georgia, driver’s license and identification card applicants are able to choose between a five-year license and a 10-year license. The Georgia legislature also approved a measure that prohibits fingerprinting of driver’s license applicants.

State Legislation, 2006 Regarding Real ID Act

Contacts for more information:

Melissa Savage, Program Principal
NCSL—Denver
(303) 856-1527
melisssa.savage@ncsl.org

Matt Sundeen, Program Principal
NCSL—Denver
(303) 856-1539
matt.sundeen@ncsl.org
Molly Ramsdell, Committee Director
NCSL—Washington, D.C.
(202) 624-3584
molly.ramsdell@ncsl.org

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