NCSL’s The Canvass

VOTER ID: BACK TO THE FUTURE?

An image of a "vote" button with the letter "R" added and then followed by "ID"The big elections story in 2017 is that voter ID is back. NCSL has tracked voter ID legislation since 2001, and has watched voter ID legislation ebb and flow, peaking in 2013, with voter ID enactments in six states. This year is a second peak: four states (Arkansas, Iowa, North Dakota and Texas) have made major changes to their voter ID laws, either enacting voter ID for the first time, or amending existing voter ID laws. (See NCSL’s History of Voter ID page for more information).

A Bit of History

Voter identification requirements are not new. The first law in the country dates back to 1950 in South Carolina. Several states added voter identification requirements in the 1970s.

The topic really became hot in the new millennium, however. By 2000, 14 states asked voters to present identification at the polls, some asking for a photo ID, others not.

After the 2004 presidential election, the Commission on Federal Election Reform (more commonly known as the Carter-Baker Commission), led by former President Jimmy Carter and former Secretary of State James Baker III, made a series of recommendations on election reform. One of the recommendations was to implement a nationwide uniform photo ID. Some point to this recommendation as a defining moment in the subsequent trend toward voter ID.

The Carter-Baker Commission’s recommendation for voter ID envisioned states providing free IDs for eligible citizens and mobile units to provide voter registration and ID services. The report also noted that in democracies that require photo identification cards, voter registration is often tied directly to a voter ID “so that voter identification can enhance ballot integrity without raising barriers to voting.”

In the U.S., though, there has never been an appetite for a national identification card. According to statistics from the U.S. State Department, there were 131,841,062 passports in circulation in 2016, or about 41 percent of the 2016 U.S. population. Americans are not required to have a state-issued driver’s license or non-driver ID, and voter cards issued upon registration do not typically contain a photo of the voter, as they are in many other countries.

In 2005, Georgia and Indiana enacted laws requiring a photo ID. These laws were categorically different than previous photo ID requirements, in that they also defined what would happen if a voter came to the polls without the required ID. The new laws required a voter without it to cast a provisional ballot, a ballot that would not be counted unless the voter returned within the next few days to show the ID.

In an op-ed published in 2008 Carter and Baker lamented that the voter ID laws being passed did not make it easy enough for voters to acquire an ID. The same opinion piece, though, noted that opposition to voter ID bills also fell along partisan lines and did not make a sufficient effort to revise the legislation to promote accessibility for voters.

Their concern—and that of many others—is that many eligible voters do not have a photo identification card and therefore raising the question of whether voter ID requirements are a barrier to exercising the right to vote. A 2014 study from the U.S. Government Accountability Office (GAO) examined 10 studies of driver’s license and state ID ownership and found that ownership rates among all registered voters ranged from 84 to 95 percent. It also found that ownership varied among racial and ethnic groups, with African-American registered voters less likely to have a valid ID for voting purposes.

How to strike the balance between access to the ballot and security is something legislatures have been grappling with ever since. 

Where Are We Now?

Photo of a red haired woman holding up a driver's liscense.

In 2011, 2012 and 2013 voter ID was by far the hottest trend in elections. In 2014 it “lost some of its oomph,” to quote from a previous article in The Canvass. Both 2015 and 2016 were relatively quiet as well on the legislative front.  For the 2016 election, 33 states required voters to show ID at the polls—7 of them “strict” in the sense that voters without ID had to take post-election action to have their votes counted.

During that quiet time for legislatures, the courts were busy. See 2016’s State Voter Identification Requirements: Analysis, Legal Issues, and Policy Considerations, from the Congressional Research Service, for an in-depth review of just what the title promises).

Legislators behind the most recent voter ID bills have a wealth of information and court rulings to turn to when crafting their legislation, and the conversation and debate around the topic has become more nuanced. States have grappled with issues such as the effect of voter ID laws on participa

tion and turnout, especially among minority groups; the process for registered voters who can’t show an ID at the polling place; the types of ID that are accepted and how they can be obtained and public information efforts about changing voter ID requirements.

State Action in 2017

This year’s legislative action highlights the current debate.

Texas: The Texas legislature enacted a new voter ID bill (SB 5) which addresses concerns identified by a federal court, which struck down the state’s original 2011 bill. Now, Texans who do not have an acceptable ID can sign an affidavit swearing to a “reasonable impediment” and present alternative forms of ID such as utility bills or bank statements. The “reasonable impediment” proviso may have been adopted from South Carolina’s voter ID procedures, enacted in 2011.

The Texas bill also includes a provision for mobile units to visit underserved populations with an option to obtain election identification certificates, an echo from the original Carter-Baker Commission report.

A photo of Arkansas State Representative Mark Lowery
Mark Lowery

Arkansas: Arkansas enacted a non-strict photo ID bill in 2017 (HB 1047) that was designed to stand up to court scrutiny, given that an earlier law passed in 2013 was struck down by the Arkansas Supreme Court. The new law contains a provision allowing eligible voters without an ID to cast a provisional ballot with a sworn statement. Election officials will compare the signature on the sworn statement to the voter’s signature in the voter registration record, and if they match, the ballot will be counted without any additional action on the part of the voter. “We aren’t trying to disenfranchise voters,” says Representative Mark Lowery, the bill’s sponsor. “We just want to make sure integrity of ballot is maintained and increase voter confidence in the election process.”

Iowa: Iowa’s new voter ID law (HB 516), passed in May 2017, provides for an education campaign about the change. One of the biggest components of the educational campaign is a “soft roll-out” throughout all of 2018. While voters will be asked for an ID during 2018 elections, they will simply sign an attestation as to their identity if they are unable to provide the ID. (See NCSL’s 2014 document on costs associated with voter ID for more information on voter education efforts around the nation).

Under Iowa’s new law, election officials will automatically send a free voter ID card to every registered voter who does not already have a driver's license or ID card issued by the state. This year, there will be a one-time mailing conducted by the secretary of state's office as a “catch-up” for all registered voters without such an ID. In 2018, county election officials will send the free voter ID cards to new applicants.This goes a step beyond simply making IDs available at no cost. 

North Dakota: Access to valid identification for Native Americans is an issue in Representative Jim Kasper’s home state of North Dakota. Last year a federal judge found North Dakota’s ID law (first enacted in 2013, and then amended in 2015) placed an “undue burden” on Native Americans and others, and required the state to provide a “safety net” for voters who could not obtain ID. An affidavit option was therefore provided for the 2016 presidential election.

The legislature revisited the issue this year, enacting HB 1369. Representative Kasper, chair of the House Government and Veterans Affairs Committee, noted that the law now includes tribal IDs as a valid form of identification. Voters living in long-term care facilities, uniformed service members of family members stationed out of state, and voters with disabilities that prevent them from traveling may present alternative forms of IDs as well.

Despite these revisions, the bill is still “strict” due to its provision that ballots from voters not able to show valid identification are not counted until the voter returns in person to show valid ID. Legislators see this as necessary to protect the integrity of the ballot.

West Virginia: In 2016, West Virginia enacted its first voter ID requirement, in HB 4013. It combined in one bill automatic voter registration with a voter ID requirement that provides an opportunity for voters without ID to sign an affidavit and cast a provisional ballot. If the affidavit signature matches the signature on file, the ballot is counted.   

MAJORITY RULE

An illustration of a 3D pie chart. the majority of which is silver with "80%" written above it in red and a smaller gold slice which has "20%" written above it in green. “Majority rules!” sounds like a school kid who got their choice, lording it over a student who didn’t.

Majorities may indeed rule on a playground—and in the Electoral College. But they don’t necessarily rule when it comes to U.S. elections.

In fact, only 15 states have a “majority” rule; in other states only a plurality is needed to win.

All of this was made clear recently in a recent NCSL webinar, Primaries and Beyond: The Legislative Angle. Here are a few highlights:

Ten states, mostly in the south, have a majority requirement to win a party’s nomination. Put it another way, 10 states employ primary runoffs when no candidate receives a majority in the first round of primary voting. (Three details: In North Carolina, a runoff is held when no candidate gets 40 percent of the vote. In South Dakota, races for Congress and governor go to a runoff if no candidate gets over 35 percent. In Vermont a primary runoff is only held if there is a tie vote).

Majority requirements and primary runoffs developed in the era when the South was solidly Democratic, according to Charles Bullock, political science professor at the University of Georgia and author of the Rise and Fall of the Voting Rights Act. Times have changed, and the South is now solidly Republican. Regardless of who holds the reins of power, when a state is effectively single-party, the primary election is where political power is determined.

It is fairly common that no candidate in a primary gets a majority of the vote—meaning that primary runoffs are fairly common. Since 1970, 31 open U.S. senate seats have led to 21 runoffs. And for 35 open governor’s seats, 39 runoffs were held (sometimes both parties had runoffs).  Runoffs are more likelyAn image of a runoff election ballot in the majority party (Democrats previously, Republicans now), where the primary winner is all but assured to win the seat.

And special elections are particularly likely to lead to runoffs, says Bullock.

In 70 percent of runoffs, the top-vote getter in the first-round primary goes on to win the runoff and thus the nomination. In the other 30 percent, the runoff changes the outcome. There’s a caveat: incumbents who go to a runoff win only 56 percent of the time, significantly less than the average. Bullock explains this by saying that if an incumbent faces two challengers strong enough to force a runoff, it’s likely he or she is “wounded” in some way.

Primary runoffs show a steep drop-off in voter participation. Alabama is the exception; 90 percent of voters come back for the runoff in the Yellowhammer State. (In days of old, when the runoff provided the decisive vote on who would win the seat, more people voted in the runoff than the primary itself).

For legislators who worry about voter drop-off between primaries and runoffs, they can do what Alabama and several other states have done: adopt instant runoff voting for overseas voters for primaries. These long distance voters rank all the candidates. When the ballot is returned for counting in the primary, the first-choice vote is tallied. If a runoff is required and the first-choice candidate is no longer in the race, then the second-choice vote is tallied.

While primary runoffs are long established, recently they’ve led to a new question: who can vote in the runoff? Should it be just the voters who took part in the primary election, or any eligible voter? Alabama addressed these questions by enacting SB108 this year, which makes it clear that any voter who did not vote in the primary is prohibited from voting in the related runoff.

Beyond Primary Runoffs

Primary runoffs are just one place where pluralities vs. majorities comes up. Here are more:

Special Elections. Georgia’s special election to fill the seat vacated by Representative Tom Price, who is now the Secretary of Health and Human Services, brought this issue to the courts. Special elections in Georgia are run in the manner of a Top Two primary, where all candidates, regardless of party, run on the same ballot. Since no candidate received 50 percent or more, a runoff election for the top two candidates was held June 20. (Jon Ossoff, the Democrat, was the top vote-getter in the primary but Karen Handel, the Republican, won the two-way runoff.)

Top Two primaries. Washington, California, Louisiana and Nebraska (for nonpartisan legislative seats) use Top Two primaries. “I personally like to call these the Hunger Games primaries,” said Brian Bean, legislative analyst in Utah, on the webinar. “Every candidate is in it for themselves,” with all candidates from all parties running on the same primary ticket. The top two vote getters move on to the general election, assuring that the winner will get a majority—50 percent plus one.

Legislative Choice. Used in just two states, constitutions say that when no candidate wins a majority vote, the legislature chooses the candidate. In Vermont, both chambers vote, whereas in Mississippi it is just the House.

Ranked Choice Voting (aka Instant Runoff Voting). The general election could be run by ranked-choice voting, voters rank all the candidates, and the candidate with the fewest votes is dropped until someone gets a majority. This is used now in a number of municipalities, and in 2016 Maine voters said “yes” to using it statewide.  In response to a request from the Maine Senate, the state supreme court opined that ranked choice voting goes against the state constitution for several offices. That’s because the constitution specifically says certain seats are to be elected “by a plurality of all votes returned” or “by a plurality of the votes in each Senatorial district” (Me. Const. art. IV). Mainers are considering their options now.

Policy Considerations

“There’s some debate about whether plurality is an issue at all, and if it should be addressed,” says Bean. For those who think a majority vote is important, he suggests a few questions to ask: What will the new policy cost? How will it impact the election calendar? Will election officials have time to implement the change? Can current voting equipment handle the change? And, finally: if 35 states work without requiring a majority, is it a problem at all? 

From the Chair

A photo of Mississippi State Senator Sally Doty
Sally Doty

Senator Sally Doty (R-Miss.) is in her second term. In 2016 she became chair of the Senate’s Elections Committee, selected for the responsibility in part because she’s a practicing attorney. She says “Mississippi starts in the lobby of the Peabody Hotel in Memphis, and goes all the way to New Orleans.” Senator Doty spoke with The Canvass at NCSL’s Future of Elections meeting on June 16, 2017.

Q: What have learned since becoming chair of the Elections Committee?

A:  I realized pretty quickly that all my fellow legislators are experts in elections because they all ran in at least one.

Q: How did you approach your new job?

A: In these two years we’ve done a lot of good work. Secretary of State (Delbert) Hosemann had an existing working group looking at our elections code. It had archaic language, and referred to processes we don’t use anymore. Out of that, someone brought me a 500-page bill. It was too much for one year, and we got caught up in campaign finance issues.

This year we passed a very sweeping bill, but only relating to technical revisions. Of course, we had a debate on whether parts of it were substantive, or were they technical? It is difficult to make any changes in our election laws.

 Q: What’s next for you and the committee?

A: Next year we’ll take a serious look at online voter registration. It was passed by the House this year. I didn’t take it up because we had so much on our plates. And, a lot of people are very suspicious when the word ‘online’ comes up, especially with last year’s security questions, whether they are real or perceived.

We (Mississippi) err on the side of having too many polling places. In my district, we have 36,000 voters and 30 precincts, which we call voting houses. My neighboring district has 12,000 voters and 28 voting houses. It is getting harder to staff them, and to comply with ADA (the Americans with Disabilities Act), so it’s getting more and more difficult to conduct our elections as we always have.

Q: Anything else?

A: The secretary of state’s office hasn’t talked to me about voting technology, the topic of this conference. Right now our counties buy their own equipment. We’re very much about doing things locally. It is interesting to me that the overwhelming majority of the state uses touch screens, but the two largest jurisdictions use opt scan.”

Q: Since elections are run locally in Mississippi, do you work with your local election officials?

A: Yes. They all have an association and have been in contact with me. Some of them talked to me about the difficulties they see with early voting.

From the Election Administrator's Perspective

A photo of Faye Gill, Elections Director for Vance County, North Carolina
Faye Gill
A photograph of Granville County, North Carolina Elections Director, Tonya Burnette
Tonya Burnette

Tonya Burnette is the Elections Director for Granville County, NC, where she serves over 37,000 registered voters. Faye Gill is the Elections Director for Vance County, NC, with over 30,000 registered voters. The Canvass spoke with them at NCSL’s Future of Elections meeting on June 16, 2017.

Q: How did you get involved in running elections?

Gill:  The lady that was there before me was retiring. I filled out the application, got a second interview, and got the job. I was as green as a one dollar bill! But previous bosses would tell you I like challenges and adapt to changes well. I’ve been in the job now for 17 years.

Burnette: My mother-in-law, Cindy Burnette, was the previous elections director. I had a project management background and I was a paralegal, so I had legal experience.  I was Interested in politics, and liked challenges, so when my mother-in-law retired, I applied. 

Q: What are your biggest concerns on your jobs?

Burnette: One of my biggest concerns is replacing aging voting equipment and how to pay for it. My second concern is recruiting poll workers. The average age is mid-60s, and it is tough to find younger workers. We have reached out to industries to help get poll workers, asking them to designate employees who can work every election. Then there’s keeping up with legislative changes and court rulings.

Gill:  It’s voting equipment and where’s the money coming from for me too. I’ve learned at this conference that every state is having issues with getting money. My poll workers are older even than Tonya’s. We had some students as poll workers. Three worked out great, but others came to the training and didn’t show up for work. It’s hard to train poll workers with things changing up until the last minute. North Carolina’s state board of elections set a minimum number of poll workers. It takes about seven or eight people.

Q: What do you wish legislators knew?

Gill: I wish legislators knew our jobs. They don’t really know what we do. It would be great if legislators went to the county they’re from to see how they run elections. All counties do things similarly, but there are little differences. I know the state board would like to see uniformity. 

Burnette: There is the perception that we don’t do a lot—it is hard to break through that. In NC, we have to be nonpartisan. I am currently the president of our state association, and my district and I planned a statewide conference in April in Wilmington, N.C.  We reached out to the House and Senate to have someone come to our conference to talk about pending legislation.  They could not come, but a representative from the House attended our meeting to talk about pending legislation and concerns, which was very productive. 

Worth Noting

  • The Public Interest Legal Foundation (PILF), with J. Christian Adams at the helm, released this month its list of the best practices for achieving integrity in voter registration. Its how-to advice includes upgrading voter registration databases, joining interstate cooperatives such as the Electronic Registration Information Center or the Kansas Interstate Crosscheck, and using voter list audits.
  • Ever voted against a candidate rather than for a candidate? A Taiwanese reform group has proposed a voting system which would formalize the practice, allowing votes both for and against candidates, rather than simply for one candidate or another.
  • Planes, trains, and optical ballot scanners? In January, the Department of Homeland Security reclassified the nation’s electoral systems as critical infrastructure systems. This white paper on electoral systems from the U.S. Election Assistance Commission explains how the new designation will impact election administration at the state and local levels.
  • Maine's legislature tried (and failed) to repeal an initiative for ranked-choice voting that was approved last November by Pine Tree State voters. At least for now, the law of the land is that most elections will use ranked-choice voting. The initiative was found to violate the state’s constitution in an advisory opinion by the state Supreme Court in May, which prompted the repeal efforts. Whether the legislature takes it up again next year is up in the air.
  • The Washington Post detailed President Barack Obama’s struggle to respond to Russia’s interference in the 2016 elections. The report has led to bipartisan concern in Washington that the former president should have done more in response to Russia’s actions. 
  • The Supreme Court announced in late May that it would review Ohio’s removal of inactive voters from voter rolls and whether the practice violates the Help America Vote Act (HAVA) in its coming term. The ultimate decision could have far-reaching impacts on the integrity versus access debate in the United States.
  • Glory, Glory Hallelu---nah. A report from NPR’s Pam Fessler notes that the cost of securing America’s electoral systems from foreign intrusion would cost in the neighborhood of $400 million, less than the Department of Defense spends on military bands. She notes that finding that money is difficult to find, and no obvious sources are on the immediate horizon.
  • Denver developed e-Sign, a system for signature gatherers to check the voter registration status of voters before they sign a petition, in 2015. We’re mentioning it two years later because at NCSL’s Future of Elections meeting a couple of weeks ago, ears perked up when attendees heard that a system exists to loan tablets to signature gatherers that make their work easier and provide much better datafor verification.
  • Speaking of NCSL’s Future of Elections meeting, Katy Owens Hubler blogged about Election Security: What States Can Do and Innovations in Elections Technology. All resources from the meeting are gathered here.

Elections and Campaign Sessions at the 2017 Legislative Summit

The NCSL Legislative Summit Logo with the skyline of Boston in the backgroundCheck out all of the elections and redistricting sessions taking place at this year's Legislative Summit in Boston, Aug. 6-9. The redistricting and elections agenda is strong, including a pre-conference with the U.S. Census. 

From NCSL's Elections Team

A graphic that reads "From NCSL Elections Team"NCSL is sad to say good-bye to Amanda Buchanan, who has been a huge part of our elections team. She loved elections, but loves higher education even more. So, when Colorado’s Department of Higher Education offered her a top-notch job, she had to say yes. The silver lining is that she’s staying in public policy work. Her new employer is lucky to have her.

As for NCSL work, it’s all about Legislative Summit for now. We hope to see many of you there.

—Wendy Underhill