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Voter ID in HAVA and The Case for Preemption PDF  | Print |  Email
By Bob Bauer   
December 13, 2007

This article was posted on Bob Bauer's Blog and is reposted here with permission of the author.


The voter identification controversy before the Court is not one of a kind, and the State of Indiana cannot aspire to be the sole agent for settling the question in federal elections. Congress, of course, took on this very issue in negotiating through partisan differences to produce the Help American Vote Act.  There it made certain decisions, very explicitly, about photo voter identification requirements and these stand in opposition to the choices later made by Indiana.

Senators Feinstein and Representatives Brady and Lofgren laid this preemption claim before the Supreme Court in a brief filed on their behalf by the Center for Public Integrity, along with the undersigned and other of his colleagues.Now the Department of Justice, in its brief siding with Indiana, closes its brief with a rebuttal, disputing that states’ hands are at all tied in federal elections by Congress’ design of HAVA.

In short, as the Department would have it, all of Congress’ negotiations, toward the compromise painstakingly worked out across partisan divisions, count for nothing.


The  preemption argument is not fancy, nor, given the statutory language and history, need it be. Congress considered photo identification requirements as one of the measures promoted by those of its Members, principally in  the Republican Party, preoccupied with building in defenses against fraud.  This was the difference in emphasis and approach that shaped the course of negotiation and debate over HAVA: enfranchisement v. protections against fraud.  Photo identification was one of those protections, unambiguously present in the debate and among the options specifically entertained by the Congress.  And in the end, only one such requirement, for one class of voters, was adopted: first time voters who registered by mail would have to present photo ID, or, in the alternative, other forms of identifications such as bank statements or utility bills.


The specificity of this provisions should reasonably answer any question about the deliberateness of the final decision made.  Indiana chose differently—for federal as well as for state and local voters.  As the Feinstein/Brady/Lofgren brief shows, Indiana cannot, in the face of preemption principles, flout the federal decision for federal elections. Yet it has done just that, and the DOJ, answering the Feinstein brief, contends that it was within  its rights, somehow, to do so.


DOJ says that Congress left the states to adopt provisions more “strict” than those it adopted.  This is true, but DOJ stumbles, perhaps willfully, on what Congress means in this context by “strictness”. The strictness of a requirement is judged, as the Sixth Circuit has noted, by the nature of the legal mandate being considered.  Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (2004). The question is: strictness toward what end?


In Sandusky, the question of strictness arose over an affidavit a voter could submit under Ohio law in order to cast a provisional ballot.  The voter was not asked to swear that he or she was eligible to vote or registered in the precinct in which the ballot was cast: the affidavit required the voter to affirm her identity and voting residence, to declare that that this was the only ballot she would cast, and to acknowledge that the ballot might not be counted if it was cast outside her assigned precinct.  The Court found that the state enactment was more “strict”, because it served to encourage provisional voting, which was fully compatible with the overriding Congressional objective in adopting provisional voting.  Had the affidavit compelled more from the voter than HAVA itself provided for, it would not have been more “strict” since it would have served to add to the burdens of provisional voting.


In the photo ID case, Congress fashioned its mandate to give voters flexibility, with multiple ID options and no exclusive reliance on photo ID, since this was Congress’ purpose—to manage the requirement so that it was not disenfranchising in effect.  Indiana’s requirement for federal elections is not more “strict”: it is less so, undermining the federal choice rather than strengthening it.


Indiana does not only impose requirements rejected by Congress for first-time voters.  It adds photo ID requirements for all voters, when Congress adopted them, with ample alternatives also provided, for only the one category, the first-time voters registering by mail who had not previously voted in the jurisdiction.  Senator McConnell when heralding Congress’ fine work in HAVA seemed well aware that this was not Congress’ direction:
There has been a lot of misinformation about this anti-fraud provision. It applies only to a small number of voters who register by mail and vote for the first time. As Senator Bond made clear, this is the prime area of voter fraud. 

148 Cong. Rec. S1226-27, cited by Amici Feinstein et al (14).


Senator McConnell is now before the Supreme Court, along with Senator Bond and other Republican notables, with a different story. Through counsel Mark F. “Thor” Hearne, he argues that this requirement, like other “anti-fraud” provisions, was meant as a “floor” and not a “ceiling”, and states can add to them at will (presumably subject to constitutional limits).


McConnell et al cite comments made on the floor, by Republican Members, but they do not explain how “minimum” requirements for the protection of the voter could stand for much if the states could so easily cast them aside in federal elections.  Congress devised a specific ID requirement for a class of specific voter, but it built into the mandate a protective feature that is properly treated, itself, as a minimum requirement—a minimum requirement for the protection  of the voter.  The U.S. and the McConnell parties would suggest that at the choice of the states, the requirement can erased altogether.


If this is the view that the Supreme Court eventually adopts, HAVA certainly was much wasted motion on this and other issues.  Senator Bond said at the moment of triumph, after this provisions had been successfully negotiated, that in HAVA,  Democrats and Republicans had “agreed on a formula that we believed could attract bipartisan support…”  Amici Feinstein et al (citing remarks of Sen. Bond at 148 Cong Rec. S720 (2002)) at 13. It is hard to see why Democrats would have bothered if the formula, once agreed to, could be undone by a state, like Indiana, in its entirety.

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