Footnote: Mississippi, South Carolina, Texas and Wisconsin have passed a strict photo ID requirement that is not presently in effect.
Voter ID for Beginners
”Voter ID” refers to requirements that voters show an ID at their polling places before they are allowed to vote. These laws are designed to prevent a specific kind of election fraud: voter impersonation at the polls. Other forms of voter fraud, including vote-buying, voter intimidation, fraudulent registration and fraud by absentee ballot are not addressed by voter ID requirements. So far, little evidence exists that fraud by impersonation at the polls is a common problem. Likewise, little evidence exists that large numbers of people have been barred from voting in states with strict voter ID laws.
The issue tends to divide on a strict party-line basis, with Republicans supporting voter ID requirements and Democrats opposing them, but not always. In 2011, Ohio’s Republican Secretary of State Jon Husted opposed photo ID legislation because he expected it would delay election results and he believed Ohio’s existing ID law was sufficient to deter fraud. And in Rhode Island, the Democratic-controlled legislature enacted a voter ID law last year that includes a photo ID requirement to go into effect in 2014.
If 30 states ask for some kind of ID at the polls, what do the other states do? Some states use “signature verification” to ensure that the person who votes is the same person who registered. In these states, the voter completes an application when registering to vote that usually includes providing a driver’s license or Social Security number. By signing the application, the new voter is swearing that the information is correct. After the state verifies the information, the registrant is added to the voter rolls and the signature is stored. When the voter shows up at the polls, he or she signs in (or if voting by mail, signs the ballot’s return envelope). If that signature doesn’t match the one on file, questions are raised and the ballot doesn’t get counted until those questions are satisfactorily answered. One state’s signature verification system is described in detail in Ballot Integrity and Voting by Mail: The Oregon Experience.
Cast Ballots are Open Records?
Legislation is often designed to fix last year’s snafus. Here’s one example: Colorado lawmakers are considering a bill this year to determine how “voted” or “cast” ballots are to be handled. The bill addresses who can see them, when they can see them, and which ballots are exempt from ever being seen. Why? Blame it on a kerfuffle in Saguache County (size: 3,168 square miles; population: 6,108; elevation: 7,800 feet).
In the 2010 general election, preliminary results showed that the opponent of the sitting county clerk had won. Programming errors were uncovered, with the final tally giving the win to the sitting clerk. A recount confirmed that result. (In January 2012, the county clerk faced, and lost, a recall election.)
No wrong-doing was ever alleged, but the secretary of state’s office stepped in to review the election, which meant looking at ballots. The county clerk refused to turn them over to the secretary of state based on what she said was a lack of authority to review the ballots, and her concern that individual ballots could be tracked back to voters, negating the secrecy of the ballot. The secretary of state sued, and a Colorado District Court ruled in 2011 that Saguache must permit the secretary of state’s office to view the ballots.
A separate case, in Aspen, also hinged on who could see voted ballots. Here, a candidate for municipal office lost, and sued to see the ballots, even though this was prohibited by municipal code. The first court upheld the city’s position. The second court overturned that ruling, saying that ballots are open records. (Note: some of Colorado’s ballots have a bar code that, in certain circumstances, can be traced back to the voter. According to state law, ballots must be designed so that “secrecy in voting is protected.”)
These cases left Colorado with the question, “What matters more: the secrecy of ballots or government transparency?”
Both matter. So Colorado’s main players in election law—legislators, county clerks, political parties, the secretary of state, and others—banded together for some “political sausage-making,” according to Donetta Davidson, the director of the Colorado County Clerks Association.
“It’s better to have rules and processes before you go into a major election,” says Davidson. “We could have complete chaos otherwise. We could have a Florida,” referring to the 2000 presidential race.
The result of their deliberations is Senate bill 155, which is still in committee at press time. The bill would:
· Clarifies that voted ballots are subject to the Colorado Open Records Act.
· Sets a time frame when ballots can and cannot be inspected (from 45 days before Election Day to after the canvass is complete).
· Includes provisions to protect the very few ballots that are susceptible to personal identification.
The bill could be seen as a local fix for a quirky Colorado problem, but Davidson says it could be the beginning of a national trend, especially when elections are close. “If other state courts rule that ballots are open records, they’ll have to go through the same process,” says Davidson.
Last year, Maine enacted a law to permit a disputed ballot to be made available for public inspection, so long as the voter’s anonymity is protected. This year, bills addressing voted ballots as open records are pending in Arizona and Maine. For more information, see the 2007 National Association of Secretaries of State report, Cast Ballots as Open Records.
From the Chair
Delegate Jon Cardin (D) is the chair of Maryland’s Election Law subcommittee of the House Ways and Means Committee. On March 22, 2012, NCSL asked him about the work he and his state are doing on elections.These are excerpts from the full interview.
--For all Marylanders who are legal to vote, I try to make voting as convenient and transparent as possible, and in so doing, make sure we have mechanisms to catch fraud and mistakes.
--We have to make sure that we create the availability of funds to improve our voitng systems. That needs to be done fairly soon, as nearly 100 percent of our machines will be obsolete by 2016.
--I’m open to hearing other people’s opinions and willing to move from one position to another. For example, I had been personally in favor of Sunday voting, and I’ve changed my opinion after hearing more about it. The practicalities are difficult and it put people in uncomfortable positions. If I learn still more, I may change my mind again.