by By Catherine Walker-Jacks | April 11, 2021
H.R. 1—The For the People Act—is a bold piece of proposed legislation that would reform essential aspects of the American political system across campaign finance, voting rights, election security, ethics, and more. To strengthen voting rights, the bill aims to reduce many barriers to the ballot box, including by addressing states’ voter identification requirements. According to the bill’s drafters, identification requirements are “excessively onerous” and “disproportionately burden” minority communities. To mitigate these burdens, the legislation would require that all states permit eligible voters in federal elections to use “sworn written statement[s] to meet identification requirements for voting.” For voters who might have difficulties meeting their state’s identification requirements—which in several states are quite strict—H.R. 1 would provide an alternate means to cast a ballot on election day. This is a big deal.
But while many of H.R. 1’s provisions—including its proposals for nonpartisan redistricting committees and a public financing system—have garnered considerable coverage, its voter ID provision appears to be under-discussed. In fact, major publications’ summaries of H.R. 1 fail to even mention the provision, while commentary from opponents is often misleading. At the same time, state legislatures across the country are considering hundreds of new measures that may suppress the right to vote, including new voter ID restrictions, making this particular provision of H.R. 1 increasingly important.
Broadly, both H.R. 1 and this recent flurry of state legislation ought to spark a renewed conversation on why we have voter ID laws—which have been termed a “solution in search of a problem”—in the first place. Indeed, while proponents argue that voter ID laws are necessary to combat voter fraud, studies have consistently shown that fraud is extremely rare. It is particularly important to scrutinize the justifications for these laws in this moment, because, while Americans oppose many voting restrictions, voter ID laws actually continue to have public support, perhaps because many also believe the unfortunately widespread myth that voter fraud is common. This myth is dangerous, as it serves to justify laws that place minority communities at risk of disenfranchisement.
Contextualizing H.R. 1
Given what appears to be a relative lack of detailed coverage and analysis into H.R. 1’s voter ID provision, it’s worth noting what the legislation actually would—and would not—do in this area. Understanding the legislation’s potential effect requires a closer look into the patchwork of voter ID laws across the country. Currently, at least 36 states have laws that request or require some form of identification for in-person voters. Among these states, requirements vary considerably: laws differ both in terms of the forms of ID requested and the options available to eligible voters who lack ID.
Specifically, some voter ID states request only non-photo identification, like a bank statement or utility bill, while several other states require specific forms of photo ID. Among photo ID states, there is also variation in what forms of ID are accepted, including whether expired IDs and student IDs are permitted. Several states provide voters who fail to bring a requested form of ID with the option to cast a ballot that will be counted without further action on their part. For example, in states like Delaware, voters lacking ID may instead sign an affidavit of identity, while in a few states, poll workers or other voters may vouch for one’s identity. Conversely, in states with strict photo ID laws, such as Georgia or Indiana, an ID-less voter’s sole option is to cast a provisional ballot, which will only be counted if the voter subsequently provides the county election office with a requisite form of identification within a few days of the election.
Contrary to the assertions of some of H.R.1’s opponents, the legislation would not ban any of these voter ID laws. Instead, H.R.1 would mandate that each state provide an additional, complementary procedure for voters who lack ID: the option to complete a sworn affidavit of identity, signed under a penalty of perjury, and then cast a regular ballot. This option would be available to voters in all states for federal elections, leaving states’ procedures for their own elections untouched. Other blanket statements about H.R.1’s effect—such as Rep. Steve Scalise’s (R-LA) assertion that it would render each states’ voter ID laws “unenforceable and useless”—also fail to account for the bill’s actual effect, given how much each states’ requirements vary. Indeed, some voter ID states have already codified H.R.1’s proposed procedure, or something similar to it, for all of their elections. One of those states, in fact, is Rep. Scalise’s home state of Louisiana.
In states with stricter voter ID laws, however, H.R. 1 would mark a material change from the status quo, permitting all eligible voters to be sure that their votes will be counted on election day, though only for federal races. It could also make a substantial difference for voters in states like Florida, which provide an affidavit option for voters lacking ID, but one that requires signature matching for ballots to be counted, a practice that has been shown to lead to disenfranchisement. Additionally, having one standardized procedure available to voters in all states could reduce confusion about ID requirements among voters and poll workers and thus help reduce the risk of inadvertent disenfranchisement.
Given that many states are further restricting their voter ID laws—such as Arkansas, which recently removed its affidavit alternative, or Wyoming where the state’s first voter ID law was just signed into law—the potential impact, and importance, of H.R. 1 is growing by the day.
Voter ID Laws – A Solution in Search of a Problem?
While voter ID laws may feel like a mainstay of our political system, widespread voter identification requirements are actually a relatively recent phenomenon. Prior to the 2000 election, most states requested identification only from certain voters (i.e., first-time voters who registered by mail), while a few states had permissive non-photo ID laws. It was not until 2006 that a state, Indiana, required a voter to produce a government issued photo ID as a condition to voting. The Supreme Court upheld this law in Crawford v. Marion County Election Board, after plaintiffs, including the state’s Democratic Party and interest groups representing minority and elderly voters, argued that it unconstitutionally burdened the right to vote. The Court’s decision in Crawford and its subsequent decision in Shelby County v. Holder, which gutted the Voting Rights Act by removing the requirement that certain states receive federal preclearance before changing their election laws, helped to pave the way for the proliferation of voter ID laws across the country.
Proponents of voter ID laws argue that they are necessary to ensure the integrity of elections by preventing voter fraud. But, as voting rights advocates have argued for years, study after study has shown voter fraud is incredibly rare. Indeed, a comprehensive study found that between 2000 and 2014, there had been at most 31 credible incidents of voter fraud out of more than 1 billion ballots cast. The Brennan Center has also conducted a study on the matter and found incident rates of fraud between 0.0003 percent and 0.0025 percent, meaning that an American is more likely to be “struck by lightning than that he will impersonate another voter at the polls.” Its report also concluded that most reported incidents of voter fraud are actually traceable to other sources, such as “clerical errors or bad data matching practices.”
Courts too have said that in-person voter fraud is extremely rare. For instance, in Veasey v. Abbott, a case concerning Texas’ photo ID law, the Fifth Circuit found that there were “only two convictions for in-person voter impersonation fraud out of [twenty] million votes cast in the decade leading up to” the law’s passage. Even the Supreme Court in Crawford noted that the record in that case “contains no evidence of any [in-person voter impersonation] fraud actually occurring in Indiana at any time in its history.” Meanwhile, reports from the 2016 and 2020 elections support the conclusion that voter fraud is rare.
Nonetheless, many Americans have been led to believe that voter fraud is a persistent problem. As the events of January 6, 2021 underscore, the myth of voter fraud can lead to dangerous results. For the lawmakers who push voter ID laws—overwhelmingly Republicans—arguments about supposed voter fraud can serve as purported justifications that mask true motivations for such laws, such as the hope of gaining a partisan advantage by suppressing the votes of minority communities. In recent years, several Republican legislators have actually admitted the potential of using such laws for political gain by adding a barrier to the ballot box, including the former Pennsylvania house majority leader who stated in 2012 that a new voter ID law would “allow Governor [Mitt] Romney to win the state of Pennsylvania.”
Indeed, voter ID laws have been shown to disproportionately burden certain voters, placing them at higher risk of disenfranchisement. Millions of Americans, especially people of color, people with disabilities, and low-income voters, do not have the forms of ID required for voting. A 2006 study by The Brennan Center concluded that “up to 11 percent of U.S. citizens—twenty-one million eligible voters—did not have government-issued photo IDs . . . includ[ing] 25 percent of African-Americans, 18 percent of seniors sixty-five and over, and 15 percent of those making less than thirty-five thousand dollars a year.” In contrast, the study found that only eight percent of white voting-age citizens lacked government-issued ID. Several studies, including a 2014 GAO study and a comprehensive study from 2020, have shown that these burdens can translate to reduced turnout among minority voters. The myth of voter fraud thus poses a dangerous threat to democracy by serving as a justification for laws that may deprive many citizens of the right to vote.
The Future of H.R. 1 and Voter ID
Given Democrats’ slim majority in the Senate, current filibuster rules, and lack of Republican support, there unfortunately appears to be a difficult road ahead for H.R. 1, at least as it is currently written. Simultaneously, as noted, many state legislatures are considering, or have already passed, numerous new restrictions on the right to vote. And while there have been calls to resist efforts to dilute H.R. 1, one state’s recent experience adopting a photo ID law suggests that compromise could lead to at least some progress in mitigating the burdens of states’ most stringent requirements. In Kentucky, where the Secretary of State was elected on a promise to enact photo ID requirements and Republicans have a majority in the state legislature, deliberation and compromise with Democrats and voting rights advocates helped turn what might have become one of the strictest photo ID laws in the country into one of the more reasonable. Indeed, although the new legislation requires that voters provide photo ID, the state accepts more types of photo IDs than many other states and also allows voters who are unable to obtain photo ID to instead provide one of several forms of non-photo ID, complete an affidavit, and cast a regular ballot. Perhaps, then, Democrats in Congress could and should follow in the footsteps of Kentucky, and in the interim work to pass a more targeted measure to help alleviate the harms of the country’s strictest photo ID laws.
Broadly, elected officials committed to strengthening democracy must actively work to combat the myth of voter fraud—including by holding accountable those in power who perpetuate these falsities. As was highlighted by the recent report that the Trump administration’s false fraud claims helped lead to Georgia’s new restrictive voting law, until the record is set straight, this myth will continue to have damaging effects to our democracy.
Catherine Walker-Jacks is a 1L at Harvard Law School.