"We have to make sure that this election is not
stolen from us," Republican presidential nominee Donald Trump
said during a recent rally in Pennsylvania, " Everybody knows
what I'm talking about."
As the poll numbers tighten, both nationally and in key
battleground states, Donald Trump has ratcheted up his claims
that without voter ID laws, Democrats will flood the polls with
people ready to "vote 15 times."
These claims are typical of what many Republicans have been
asserting for more than a decade to justify severely restrictive
voter ID laws now in effect across the nation.
As first enacted, these laws restricted the number of
acceptable photo IDs to a handful - usually no more than seven
or eight - and deliberately excluded IDs most readily available
to low-income and young people through public assistance
agencies, colleges and public or private employees. Texas and
Wisconsin even excluded military veteran IDs, but relented after
veterans groups protested.
Despite their voter fraud claims, many Republicans are on
record saying that these laws were actually intend to suppress
the votes of minorities, young people, the poor, people with
disabilities and others who tend to vote Democratic. The laws
also create confusion among voters and poll workers, and offer
local officials numerous opportunities for highly partisan
actions. They even allow repetition of abuses the courts have
already labeled as "racist."
These laws serve no useful purpose. The fraud they are
supposed to address - impersonating someone else at the polls -
is virtually nonexistent. Yet almost all the restrictive laws,
though ruled unlawful, will likely remain in effect during the
The courts have begun to recognize the emptiness of the GOP
claims and their pernicious impact on Americans' most
fundamental right. Voting-rights advocates have won a surprising
string of victories against restrictive photo ID laws in Texas,
Wisconsin, North Carolina and North Dakota, on top of earlier
victories in Pennsylvania and South Carolina.
Unfortunately, most of the remedies the courts have ordered
fall far short of what's needed. Although all the courts ruled
that the restrictions violate the Constitution or the 1965
Voting Rights Act, the judges did not strike down and nullify
the laws. Instead, they settled for modest alternatives to the
The half-measures have allowed local officials to repeat
abuses that the courts condemned as racially oriented, while
increasing confusion about what is acceptable. Yet this
"softening" of restrictions is the new election model -- whether
voluntarily, as in North Carolina in 2015, or by a court order,
as in South Carolina, Texas and Wisconsin. But it has failed
First, this approach depends on state officials accepting
the court decisions. Because many officials are hyper-partisan
or otherwise hostile, such acceptance is rare. It also depends
on well-trained officials and poll workers, many of whom are
only temporary employees.
It is also necessary to notify and educate potential voters
who don't have the required IDs about their rights to use
alternative ones. This requires what could be an expensive
public education campaign by states that are either hostile to
the rulings or are financially unable to fund such an effort.
The difficulties in all four states illustrate the problems.
Texas may be the worst offender, though the others are not far
After the Fifth Circuit Court of Appeals, in July, ruled
that the Texas law violated the Voting Rights Act and the
Constitution by discriminating against minorities, Judge Nelva
Gonzales Ramos ordered the state to advise people who declare
they "cannot reasonably obtain" a required ID that they could
use other forms of identification.
Texas, however, omitted the word "reasonably'' from its
voting materials, which implied that only those completely
unable to get a required ID had the option of an affidavit.
Ramos, obviously angered by the state's failure to obey his
initial order, required Texas to promptly change all its voting
materials to add the "reasonably" language, and then to show the
revisions to the plaintiffs' lawyers for approval. Nonetheless,
polling-place signs and workers continued to tell voters that
they needed a photo ID card.
In the Fort Worth area, for example, Republicans warned
election workers in "Democrat-controlled areas" to ensure that
"OUR VOTER ID LAW IS FOLLOWED" - in flagrant violation of the
court-ordered agreement. A Bexar County polling station recently
posted a flier that said "Photo ID required for Texas voters"
until a voter protested.
In addition, Texas officials, including the state's attorney
general and the director of elections, plan to investigate
"everyone" who makes a "reasonable impediment" declaration to
determine if they lied, and to refer cases to the district
attorney for possible perjury prosecution where appropriate.
Ramos now plans to look into this possible attempt at
Wisconsin provides another example of how state officials
have defied court orders. In July, Federal Judge James D.
Peterson ruled that Wisconsin's method of providing vital
documents to eligible voters, such as a free birth certificate,
was a "disaster" and should be improved. He also ordered the
state to provide temporary ID receipts so that those waiting for
the documents could vote on November 8.
State officials assured the court it would have the
Department of Motor Vehicles take care of it, and they issued a
press release that promised "Free Photo ID for Voting Now
Available with One Trip to DMV." Nonetheless, many DMV employees
refused to provide the temporary voting receipts or a free photo
During a subsequent court-ordered hearing, the DMV
administrator admitted to giving voters incorrect information
about the law and about the availability of voting receipts.
Peterson immediately ordered the state to provide the voting
receipts and correct its information. Yet a few days later, the
chairman of the state elections commission responded, "We don't
have money budgeted for this remedy "
It is still unclear when and if the Wisconsin legislature
will provide the money. As of 10 days ago, some voting officials
were still refusing to provide the necessary voting credentials.
None of this, however, should be a surprise. Other states
subject to voting-rights orders have carried out similar
This was clear in South Carolina, where the
reasonable-impediment option originated.
In 2012, the state announced that it would allow only five
kinds of photo ID. But at the time, South Carolina was subject
to federal oversight under the Voting Rights Act. It thus needed
federal approval for any changes in its election laws. When it
became clear that there would be no approval forthcoming, South
Carolina agreed to allow people to vote if they swore there was
a reasonable impediment to their obtaining one of the necessary
But during the next South Carolina election, in November
2013, large red posters appeared at polling stations that
warned, "VOTING IN PERSON NOW REQUIRES PHOTO ID." The Rockland
County Election Commission homepage also instructed voters they
"must have photo ID to vote." The reasonable-impediment option
was not mentioned.
During the South Carolina 2016 presidential primary in
February, posters again appeared at polling stations. They
announced "PHOTO ID REQUIREMENTS NOW IN EFFECT." The posters
featured illustrations of the five required photo IDs. This time
the reasonable-impediment alternative was noted - in small print
near the bottom.
When the state election commission was asked about this, an
official first tweeted, "If you have photo ID, you should bring
it to the polls. If you don't, you'll have to show it later for
your vote to count." After being informed that this was wrong,
the official tweeted back, "No voter in the correct precinct
should ever be turned away without being given the opportunity
It is unclear how many people actually used the
reasonable-impediment exception because South Carolina kept no
statistics. Yet the confusion produced by the posters and the
election commission's responses could hardly have been
In North Carolina in 2013, the day after the U.S. Supreme
Court issued Shelby County v Holder, which gutted the Voting
Rights Act, the GOP-controlled legislature was ready to act.
Republicans introduced a 57-page package of voting restrictions
and passed it roughly seven weeks later. The new law had 20
substantive provisions, 19 of which were designed with what the
Court of Appeals later called "almost surgical precision" to
Among the 19 was a photo ID requirement modeled on the Texas
statute, then the nation's most restrictive. Apparently aware of
the law's vulnerability after the Texas decision, North
Carolina, in 2015, added a reasonable-impediment exception
similar to South Carolina's. But it had one major difference:
South Carolina provided a regular ballot for
reasonable-impediment voters, while North Carolina offered only
a provisional ballot.
The legislators must have known that provisional ballots
create problems whenever they are used. Many are not counted
when they should be.
The problems erupted during North Carolina's 2016
presidential primary. As Democracy North Carolina, a voting
rights monitoring group, found, the guidance given to voters and
officials about the reasonable-impediment alternative was
"grossly inadequate." Ballots were not offered to many voters
entitled to them, and many ballots were improperly rejected.
Affidavits with nearly identical impediments were accepted in
one county and rejected in another. Even in the same county,
acceptance of the ballot often depended on which official
Adding to the confusion, at least four different kinds of
affidavit forms were used. In some cases, provisional ballots
were rejected because the affidavits had no signature, even
though the affidavit form did not contain a signature line and
no one advised the voter to sign.
All this led the Fourth Circuit Court of Appeals to rule
that the reasonable-impediment alternative did not eliminate the
voter suppression produced by the photo ID law, and it struck
down the entire voter ID law.
As the experiences of these four states show, efforts to
deal with voter suppression by half-measures usually serve to
create more confusion at the polls. Even voters with acceptable
forms of ID can be discouraged to turn out. In one Texas
congressional district, researchers from Rice University and the
University of Houston found that the majority of surveyed
registered voters did not turn out in 2014 because they thought
they lacked a proper ID. Yet they actually possessed one.
It will likely take several successive elections to prove
just how harmful these laws can be. While that is going on, the
results in many close elections could be significantly
This is what seems to be happening today, as state officials
delay or even ignore the court-ordered correctives.
In his ruling, Peterson, the federal judge in Wisconsin,
described the state ID law as a "cure worse than the disease,"
which "leads to real incidents of disenfranchisement." That
holds true for all these restrictive photo ID laws.
Because there really is no "disease" to begin with, there is
no justification for so pernicious a "cure." Or for the
inevitable "disasters" produced by these half-measures.