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Driver's License and Identification Card Issues:

2003 State Legislative Update

September 2003

By Reed F. Morris and Catherine A. Chan

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In response to national security concerns and identity theft, state legislatures have taken a closer look at policies concerning state-issued identification. In 2003, state legislatures addressed the issue of driver's license and identification card security on three main fronts: (1) eligibility requirements; (2) falsification concerns; and (3) anti-counterfeiting measures. First, states considered who should be eligible to apply for a state driver's license or identification card and what acceptable forms of identification documents applicants must present. Second, states deliberated ways to stop people from obtaining driver's licenses or identification cards through presenting false documentation to the licensing office. And third, states contemplated means to stop people from sidestepping the state licensing office requirements all together through the production of counterfeit licenses and identification (ID) cards. In addition to these three areas, states have considered measures aimed at protecting individuals from identity theft and tightening compliance with selective service registration for male driver's license applicants.

While the driver's license is the primary form of identification, state-issued ID cards are also important. Although teen driver restrictions have pushed back the age of eligibility for an unrestricted driver's license in some states, the first trip to the licensing office may nonetheless be earlier as most states issue identification cards to minors who have not yet reached the driving age. Typically, state ID cards and driver's licenses look similar and require the same documentation. Although the focus of legislation in this area over the past two legislative sessions has been on the policies protecting the security of the driver's license, the majority of licensing policies affect both state-issued ID cards and driver's licenses because the issuing criteria for both are often governed under the same statutes or administrative rules.

The states and the District of Colombia license more than 191 million drivers, which are roughly 88 percent of those eligible for a license. Since as early as 1903, when Massachusetts and Missouri enacted the first state driver's licensing laws, states and territories have administered their own driver licensing systems. Since 1959, all states have required an examination that tests actual driving skills and traffic safety knowledge before issuance of a license. Examining drivers and issuing licenses, however, is no longer the sole concern of state licensing agencies. Because the driver's license has assumed a role beyond traffic safety, where both government and private entities rely on the license for personal identification, state legislatures and driver's license agencies are concerned with the safety and security of the license as an identifier. In 2003, forty-five states considered legislation aimed at keeping the license secure in its function as an identifier.

The federal government is not directly involved in state procedures for licensing of recreational drivers. It is, however, involved in the licensing and oversight of commercial vehicle ("CMV") drivers. Commercial drivers are issued a commercial driver's license ("CDL"). The CDL is issued according to different criteria than that of non-commercial drivers' licenses. The CDL is also governed by different rules and procedures in which the federal government, in contrast to other driver's licenses, does provide specific rules and recommendations.

States determine key criteria for issuing non-commercial driver's licenses including age restrictions, traffic safety knowledge, and physical requirements a driver's license applicant must meet, such as vision testing. Other issues facing state lawmakers include special requirements for teens and older drivers and regulating the commercial driver's license (CDL). The events of September 11, particularly those related to identity theft and fraudulent driver's license issues, caused many state legislators to reexamine driver's license and identification card systems. States contemplated ways to address the identification issues from the perspective of traffic safety balanced with concerns over personal and national security.

General Identity Documentation Requirements

Obtaining a state-issued driver's license or ID card involves a key transaction: the applicant presenting documentation identifying him or herself as the person applying for a driver's license or identification card, and the licensing official accepting that documentation as valid and accurately identifying the applicant. Most states regulate what forms of personal identification are acceptable. For a driver's license applicant to prove their identity, most states require proof through both primary and secondary documents. States differ, however, on which documents fall into each category, how many documents from each category must be presented at application, and what identifying information documents from each category may provide.

Ohio, for example, has implemented a primary/secondary identity document requirement. To obtain a driver's license or state ID card, applicants must present two forms of documentation to prove date of birth and Social Security number (SSN), if one was ever assigned. At least one of the two identity documents must be from the primary list. All primary documents must display the full name and birth date of the applicant and must be verifiable. Examples of primary documents accepted in Ohio include the following: state driver's license or ID card not expired more than 6 months, certified birth certificate, valid Immigration and Naturalization Service (INS) documentation, certified copies of court orders that include name and date of birth, military identification documents (with photograph), or valid U.S. or Canadian passports. Examples of acceptable secondary documents include credit cards, employer or student identification cards, health insurance cards, valid foreign passports, and vehicle titles.

At least twelve states considered legislation in 2003 pertaining to documentation requirements: Arizona, California, Colorado, Florida, Hawaii, Illinois, Maryland, Missouri, Nebraska, Rhode Island, Texas and Virginia. Colorado, Hawaii and Maryland have passed such measures. In 2003 Colorado enacted the "Secure and Verifiable Identity Documents Act" (HB 1224), which prohibits public entities providing services from accepting or relying upon documents that are not secure and verifiable as proof of identification. The new law defines a "secure and verifiable document" as "documents issued by a state or federal jurisdiction, or recognized by the U.S. government, and that is verifiable by state or federal law enforcement, intelligence, or homeland security agencies." Private businesses, such as banks, do not fall under this law. In addition, the new law states that public entities that issue licenses or ID cards shall not accept identification documents that are not "secure and verifiable."

Consular Identification Legislation

Consular identification is an official identity card issued by a foreign national government to its citizens living in the U.S. and other countries abroad that some U.S. states officially recognize. In 2003 at least ten states introduced legislation regarding the consular identification including: Arizona, California, Colorado, Georgia, Hawaii, Louisiana, Nevada, New York, Tennessee, and Texas (Table 1). Legislation in California, Hawaii and New York sought to broaden the acceptance of the consular identification cards as valid identification documents, while legislation in Tennessee sought to restrict their use. In June 2003 Tennessee enacted HB 1705. This bill expressly prohibits the use of the matricula consular, which is consular identification from Mexico, as an identification document.

Federal legislation on consular identification was also introduced in 2003. HR 502 would prohibit any federal agency, commission, or other entity within the executive, legislative, or judicial branches from accepting any identification document not issued by a state or federal jurisdiction and subject to verification (Table 2).

Lawful Presence Requirements

Some, but not all states require the applicant to be lawfully present in the U.S. before issuing a license. By definition, all U.S. citizens and U.S. nationals are lawfully present in the United States. Persons who are neither U.S. citizens nor U.S. nationals (for convenience referred to herein as "non-citizens") are lawfully present in the U.S. when they have some form of immigration status. There are many different categories of immigration status, including Lawful Permanent Residents (or people with "green cards"), refugees, asylees, people granted temporary protected status, and people who have been granted employment authorization by the Bureau of Citizenship and Immigration Services (BCIS).

Although a birth certificate showing birth in a U.S. state or territory or the District of Columbia is the most common document used as proof of U.S. citizenship and lawful presence, many other documents also serve this purpose. Many persons who were born abroad are U.S. citizens, either through having had a U.S. citizen parent or through having been naturalized in the U.S. Persons born in the Northern Marianas or Swain's Island may not be U.S. citizens but still may be U.S. nationals, and as such are entitled to remain in the U.S. Just as there are numerous immigration categories that fall under the definition of lawful presence, there are a great variety of documents that non-citizens may present to demonstrate that they have an immigration status. For example, there are at least six documents that prove that a person is a lawful permanent resident and at least four documents that prove that a person is a refugee.

In some states, while there is no lawful presence requirement, there is a de facto lawful presence requirement because the list of documents acceptable to prove identity exclude persons who are not lawfully present. SSN requirements, for example, may serve as de facto lawful presence requirements. Furthermore, many persons lawfully present in the U.S. are denied licenses under current state laws because the documents they carry to prove lawful presence are not found on the list of acceptable documents. In other cases, persons lawfully here are denied licenses because their foreign-issued birth certificates or other identification documents are not accepted.

Since September 2001, some state legislators have taken a tougher stance on whether to allow undocumented immigrants to obtain driver's licenses. An undocumented immigrant is 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. Examples include entering without inspection by the INS, entry based on fraud, or overstaying the authorized period of admission.

Supporters of restricting the license to only those lawfully present under U.S. law argue that driving is a privilege, and granting a license to undocumented immigrants encourages the influx of illegal immigrants though U.S. borders. Additionally, the September 11 terrorist attacks also called attention to the security weaknesses of licenses. Thus, the issue of undocumented immigrants and licensing is also related to states' objectives of preventing terrorists from obtaining false identification.

Opponents of restricting license eligibility argue that by not issuing undocumented immigrants driver's licenses, those 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 there is great concern over the ability of motor vehicle agencies to identify and include the vast number of INS documents immigrants may present.

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According to the National Immigration Law Center (NILC), currently thirty-one states and the District of Colombia require applicants for driver's licenses to be lawfully present under U.S. law. These lawful presence requirements arise either through direct language in statute or administrative code or indirectly through a combination of identification document requirements at application. The policy of issuing licenses and ID cards only to persons that are lawfully present was considered by thirty-one states in 2003: Alaska, Arizona, Arkansas, Connecticut, Florida, Georgia, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, New Mexico, New York, North Carolina, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Virginia, Washington, West Virginia, and Wisconsin. Virginia was the only state to enact its bill into law.

Louisiana passed a law that allows immigrants in the agricultural industry to obtain a temporary license, regardless of the person's immigration status. Conversely, California SB 60, signed into law in September 2003, repeals the lawful presence requirement for obtaining a driver's license or identification card in California. The California legislation permits illegal immigrants to obtain California driver's licenses. There are currently an estimated 2 million undocumented immigrants in California. Federal officials have suggested that California's current legislation may create an extra burden on customs and immigration inspectors at U.S. borders. Americans returning from countries in the Western Hemisphere do not need a passport to reenter the U.S., although one is recommended. Federal officials are reviewing the current California policy because it is the most populist state in the nation and has been a magnet for illegal immigration.

Social Security Number Requirements

Federal law requires that states collect driver's license applicants' Social Security numbers (SSN) under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. However this requirement only applies to applicants who have a SSN. A 1996 law, the Illegal Immigration Reform and Immigrant Responsibility Act included a provision that required states to place social security numbers on state driver's license. This provision was repealed in 1999.The Balanced Budget Act of 1997 expanded the SSN collection requirement to include both commercial and non-commercial driver's licenses. This Act requires licensing offices to collect a SSN that the applicant may have, but does not require individuals to have a SSN as a condition to receiving a state driver's license. It went on to advise state licensing offices to obtain a sworn affidavit from applicants stating that they do not have a SSN.

Most states require applicants to provide proof of their SSN as a prerequisite for obtaining a driver's license. However 40 states have exceptions to that rule which range from providing a Letter L-676 from the Social Security Administration (SSA) to a sworn affidavit from the applicant stating that they neither have, nor are eligible for a SSN. For example, Kansas and Wisconsin allow individuals who do not have a SSN to sign a sworn statement that they do not have one. New York allows individuals who are not eligible for a SSN to submit a letter from the SSA setting forth that an SSN has not been issued or the applicant is ineligible for one. According to a February 2002 U.S. General Accounting Office (GAO) report, only six states do not collect SSNs of all applicants for driver's licenses: Georgia, Kansas, Maryland, Michigan, Minnesota and Oregon. In 1998, the Michigan Legislature passed a law requiring the collection of SSNs, but at the time of the GAO report, the law had not been implemented. In Minnesota in 2003, resolutions were introduced in both the Senate and House urging Congress to repeal the federal provisions that require the collection of SSNs, citing the state's privileges under the Tenth Amendment of the U.S. Constitution and identity theft concerns. The Tenth Amendment of the U.S. Constitution provides those powers not expressly granted to the federal government will be retained by the states.

Some states, such as New Mexico allow applicants to submit IRS individual taxpayer identification numbers (ITIN) in lieu of a SSN. Under U.S. law, earned income is taxable whether or not the earner is lawfully present. In order to track earnings of immigrants not eligible for a SSN, the Internal Revenue Service (IRS) created the ITIN, a nine-digit number like the SSN that begins with the number 9. Since the program began in 1996, the IRS has issued about 5 million ITINs. Since the establishment of the ITIN, its use, like the use of the SSN, has expanded beyond its originally intended purpose. Today, seven states-Kansas, Kentucky, New Mexico, North Carolina, Pennsylvania, Utah and West Virginia-allow submission of the ITIN in lieu of the SSN at application for a driver's license (Table 3).

In 2003 twenty-six states reviewed legislation pertaining to driver's licensing and SSN and ITIN numbers: Alabama, Arizona, Arkansas, California, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Maryland, Massachusetts, Missouri, Nebraska, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Virginia, West Virginia, and Wyoming.