The Liberty Amendments: Restoring the American Republic (22 page)

SECTION 4: Where registration and/or voting is not in person but by mail, citizens must submit an approved citizen-designated photo identification and other reliable information to state election officials to register to vote and request ballots for voting, no later than forty-five calendar days before the primary or general elections for President, Vice President, or members of Congress. Registration forms and ballots must be returned and signed by the voter and must either be mailed or hand-delivered by the voter to state election officials. If delivered by a third party, the voter must provide written authorization for the person making the delivery and the third party must sign a statement certifying that he did not unduly influence the voter’s decisions.

SECTION 5: Electronic or other technology-based voting systems, for purposes of registering and voting in national elections, are proscribed unless a reliable identification and secure voting regimen is established by the state legislature.

A
LTHOUGH THIS PROPOSED AMENDMENT
does not involve systemic constitutional reform, as do the other proposed amendments, it addresses the sanctity of the voting franchise in federal elections, which has become increasingly confusing and unreliable. And like the other proposed amendments, this one is intended to enhance self-government.

The one mantra recited reflexively whenever the topic of voter fraud comes up is that there is no such thing as voter fraud in the United States. It just does not exist, so there is simply no need for “draconian” measures like requiring voters to present a state-issued photo identification—a valid driver’s license, passport, or equivalent form of ID—in order to vote. Beyond a few “isolated” examples of individuals misbehaving, it is said that voter fraud does not occur.

This argument was addressed directly by Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit in the 2008
Crawford v. Marion County Election Board
decision, later upheld by the Supreme Court. Posner explained that we are dealing with “. . . the form of voting fraud in which a person shows up at the polls claiming to be someone else—someone who has left the district, or died, too recently to have been removed from the list of registered voters, or someone who has not voted yet on election day. Without requiring a photo ID, there is little if any chance of preventing this kind of fraud because busy poll workers are unlikely to scrutinize signatures carefully and argue with people who deny having forged someone else’s signature.”
¹

Posner added, “. . . the absence of prosecutions is explained by the endemic underenforcement of minor criminal laws (minor as they appear to the public and prosecutors, at all events) and by the extreme difficulty of apprehending a voter impersonator. He enters the polling place, gives a name that is not his own, votes, and leaves. If later it is discovered that the name he gave is that of a dead person, no one at the polling place will remember the face of the person who gave that name, and if someone did remember it, what would he do with the information?” He concluded,
“One response [to voting fraud], which has a parallel to littering, another crime the perpetrators of which are almost impossible to catch, would be to impose a very severe criminal penalty for voting fraud. Another, however, is to take preventive action . . . by requiring a photo ID.”
²

And what of the limited number of news reports of voter fraud? Posner pointed out, “[T]hat lacuna may reflect nothing more than the vagaries of journalists’ and other investigators’ choice of scandals to investigate.”
³

Incidents of in-person and other kinds of voter fraud also grow in complexity with each succeeding election cycle. Of course, there are conscientious citizens who try to ensure the integrity of our electoral infrastructure, but there are also self-interested political activists who are bent on adulterating the voting processes to the point where illicit activities like selling one’s vote to the highest bidder, encouraging illegal aliens to register and vote—often multiple times in a single election—and tampering with absentee ballots are all too easily accomplished.

Not surprisingly, the catalysts for growing opportunities for electoral abuse are recently enacted federal laws designed to “reform” the processes by which we elect our leaders:

• Early voting—sometimes several days, weeks, and even months before election day.

• Same-day voter registration.

• Online voter registration.

• “Motor voter” registration (where an applicant for a new or renewed driver’s license is automatically offered the opportunity to register to vote).

• Ballots published in non-English native and foreign languages.

• Provisional ballots.

While some of these measures have served to turn out new qualified voters, there have also been unadvertised consequences that are causing an increasing number of people to question the integrity of the voting process. And there is some talk of elections in the not-too-distant future taking place entirely online, with voters using smartphones, tablets, Internet-connected televisions, laptops, and desktop PCs to cast ballots.

This troubling electoral landscape has caused several states to enact, or consider enacting, statutes requiring voters to produce state-issued photo ID cards, primarily driver’s licenses, as proof of citizenship to register to vote and vote in primaries and general elections. These laws are both eminently reasonable and very important tools in protecting the institutional credibility of the representative parts of government. Undermine the public’s faith in the voting process, the single way in which the people can express directly their collective will, and you destabilize what is left of the republican enterprise.

And make no mistake, the public’s faith has been shaken. According to an April 2012 Rasmussen poll, two out of three American voters surveyed believed that voter fraud is a serious problem. “Many think that people who should not be allowed to vote will actually be able to cast ballots,” Rasmussen explained. The survey also found that 82 percent of those questioned believed that requiring a photo ID as a condition of voting was a good idea. And 73 percent rejected the notion that requiring a
photo ID would discriminate against minorities. Twenty-four percent of those surveyed also said that they were not confident that their own vote would be counted.
⁴

The Supreme Court has already weighed in on voter ID requirements, concluding they are a reasonable solution to voter integrity concerns.
⁵
Regulations imposing only ordinary burdens, such as those requiring a “nominal effort” by all voters, are not severe.

Several states are enacting laws requiring that voters present one of several acceptable photo IDs. These laws are patterned after an Indiana photo identification law that the Court has already upheld as a “generally applicable, nondiscriminatory voting regulation” with reasonable burdens.
⁶

Requiring a photo ID to vote is neither an onerous nor a unique requirement in the twenty-first century. Identification is required to obtain a driver’s license and passport; buy alcohol or cigarettes; apply for food stamps, unemployment, and various forms of welfare; open a bank account; cash a check; purchase a firearm; lease an apartment; rent a car; secure a marriage license; clear airport security; enter most federal buildings—and even meet the president or vice president in person. Yet, when it comes to state efforts to ensure the integrity of the electoral process through modest voter identification laws, there are howls of protest from certain political activists and insincere public officials. Merely requiring an individual to establish eligibility for voting is portrayed as the resurrection of Jim Crow laws.
⁷

For example, Jesse Jackson declared, “The voter ID is the new Civil War battle all over the nation.”
⁸
Thus, for Jackson, identifying yourself as a citizen before voting is akin to the war that ended
slavery. More troubling than Jackson’s demagoguery is the deceitfulness of the nation’s top law enforcement official. The attorney general of the United States, Eric Holder, used incendiary terms to critique the Texas voter ID law in a speech to the National Association for the Advancement of Colored People (NAACP): “Many of those without IDs would have to travel great distances to get them and some would struggle to pay for the documents they might need to obtain them. We call those poll taxes.”
⁹

Holder felt no urgency to offer any substantive information about exactly how many individuals would be inconvenienced by a photo ID requirement, or how those same individuals manage to function in their daily lives without a photo ID right now. Moreover, the irony was that the attendees of the speech had been asked to present identification before entering.
¹⁰
As attorney general, Holder should be more concerned than most about the integrity of the nation’s voting system and the real and potential fraud that undermines it.

After a long history of civil rights struggles and legal battles to overcome real and intended sanctioned obstacles to voting, it would seem elemental that voting methodologies and processes that do not adequately protect the sanctity of the hard-won franchise warrant universal outrage. Extremist histrionics aside, many states are recognizing that the single most effective, straightforward, and practical way to discourage several types of voter fraud is to require a photo ID to establish identity. Unfortunately, in every state where this requirement has been enacted, opposition to these measures has been well organized, vitriolic, and dishonest. The contrived responses to recent reform efforts in Pennsylvania and Arizona are typical.

In Pennsylvania, the legislature concluded that the voters lacked confidence in the integrity of that commonwealth’s electoral system. In 2012, it enacted a law requiring individuals to present a state-issued photo ID in order to vote.
¹¹
Those without a photo ID would be issued a free ID by the state upon sufficient demonstration of identity and residency, which should have blunted complaints about affordability. Opposition to the bill was fierce, dominated by shameful claims of bigotry and racism, and efforts to create a false record of voter suppression.

Led by the American Civil Liberties Union and the NAACP, voter ID opponents claimed that the Pennsylvania law was intended to “suppress voting by groups that typically vote Democratic and disproportionately lack official ID.”
¹²
They also claimed that the photo ID requirement is no different from a poll tax, now a common refrain. An NAACP attorney alleged that the Pennsylvania voter ID law was designed to disqualify “at the low end” 100,000 to 500,000 voters.
¹³

Still, the legislature passed the bill, which the governor signed into law. Despite the alarmist rhetoric and brazen claims that hundreds of thousands of voters would be disenfranchised, the plaintiffs were unable to produce a single individual who would be prevented from voting under the new law.
¹⁴
A Pennsylvania trial court concluded that the voter ID law was a modest, generally applicable, nondiscriminatory adjustment to Pennsylvania’s voter qualifications, fully consistent with the Pennsylvania Constitution.
¹⁵
After the intervention of the Pennsylvania Supreme Court, however, implementation of the law was delayed until after the 2012 presidential election. Administrative issues were the basis for delay rather than any substantive conclusion that the law is improper.
¹⁶

In Arizona, voters amended the state’s voter registration procedures by state initiative (Proposition 200) in 2004. Proposition 200 reflects the concerns Arizonans have in avoiding fraudulent voting by the large number of unqualified electors living within the state’s borders. It requires county recorders to “reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship.”
¹⁷
Prospective registrants using the
federal voter registration form
mandated under the National Voter Registration Act are also required under Proposition 200 to provide one of various kinds of proof of citizenship in order to complete the registration since the federal form does not.

Since Arizona had been subject to federal supervision under the Voting Rights Act of 1965, the measure was submitted to the United States Department of Justice for approval, and became effective in January 2005.
¹⁸
As many as twenty thousand ineligible individuals were prevented from registering to vote during the year Proposition 200 was in effect.
¹⁹
The law served its purpose.

But opposition to Proposition 200 was incendiary and unrelenting. A lawsuit was initiated by numerous “civil rights” groups claiming that the measure discriminated against Native Americans, Hispanics, and other minority groups. The plaintiffs claimed the measure was a return to massive discrimination of the past and constituted a poll tax. A federal district judge threw out the case, concluding that the measure was a reasonable exercise of state sovereignty.
²⁰
Eventually, the Ninth Circuit Court of Appeals ruled that while not constituting a poll tax or having any other discriminatory aspects, the Arizona law was preempted by a federal law that establishes standards for voter registration.
²¹

Unfortunately, the Supreme Court ruled this June that
Arizona cannot require voter registration applicants to include evidence of citizenship when filing their
federal voter registration forms
(although applicants could choose to file the state form, which requires proof of citizenship, and which lawbreakers are obviously unlikely to do).
²²
The 7 to 2 decision is another departure from explicit state authority recognized in the Constitution.

Article I, Section 2, Clause 1—the Constitution’s Elector Qualifications Clause—could not be clearer. It provides, in part, “. . . the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Article I, Section 4 grants Congress authority to “make or alter such [state] Regulations” regarding “the Times, Places and Manner of holding Elections for Senators and Representatives.” Therefore, Congress’s power applies to how, when, and where to hold Elections—not about voter registration and voter qualifications. Moreover, as a secondary matter, Arizona’s law did not conflict with the federal Motor Voter registration form. It improved upon it. The result is that the states are reduced to seeking approval from federal officials to do that which the Constitution already authorizes. Consequently, the Supreme Court permits states to require photo ID in order to vote, but disallows states from requiring photo ID or other forms of proof of citizenship as additional steps against fraud when registering with the federal registration form.