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Strict voter ID law a mistake for Michigan

By Jon Sherman | December 7, 2016

Michigan legislators are trying to ram through a strict voter ID bill in the waning days of this session. They need to hit pause and think before proceeding with this unconstitutional law which will force many voters into a maze of government bureaucracy and invite costly litigation at taxpayers’ expense.

The state already has a photo ID requirement with an alternative allowing a voter to sign an identity affidavit under penalty of perjury. While 30 states have some form of in-person voter ID law in place, the list of acceptable IDs varies substantially. Some states have expansive lists including both photo and non-photo forms of ID, with many of these states offering an alternative to presenting ID at the polls. The remaining 20 states plus D.C. have no voter ID law or it is blocked by court order. Sixteen of the 30 voter ID states permit voters without ID to sign an identity affidavit instead of presenting ID, cast a provisional ballot which will be counted if the signature matches, or have their identity verified by alternative means. The overwhelming majority of the country – 36 states plus D.C. – have much less restrictive in-person voting requirements than what the current bills propose. Passing a strict voter ID law would take Michigan farther outside the mainstream of election laws.

The bill’s sponsor, Representative Lisa Posthumus Lyons (R-Alto), is banking on the Supreme Court’s 2008 decision in Crawford v. Marion County Election Board, which upheld Indiana’s voter ID law. But in the eight years since that case was decided, voter ID laws have been blocked across the country on legal claims not presented in Crawford. A conservative appellate court found that Texas’s strict voter ID law violated the Voting Rights Act; a federal judge in North Dakota ruled the same way; a panel of judges struck down North Carolina’s strict voter ID law; and state constitutional provisions have been used to strike down voter ID laws in Pennsylvania, Arkansas and Missouri. Relying on Crawford, which is limited by its undeveloped facts, as a license to pass any ID law is a mistake the state’s lawyers will be forced to defend in court.

Case after case in Texas, North Carolina, North Dakota, Wisconsin and elsewhere has shown these laws impose significant burdens on the right to vote and racial disparities in the way those burdens are experienced. Republican- and Democratic-appointed federal judges alike have found demonstrable racial disparities in photo ID possession and significant hurdles for low-income and minority voters in obtaining the documents needed for a state ID. Michigan will be no exception to this pattern-those most disenfranchised by this law will include elderly, rural voters of all party affiliations who have never driven a car; urban, minority voters who live below the poverty line and lack the primary documents needed to acquire an ID; elderly black voters in Detroit and Flint who were never issued a birth certificate because they were denied admission to hospitals in a segregated South; and any voter with slight document variations such as a Polish, German or Scandinavian name that was later Anglicized.

HB 6067 theoretically offers voters lacking a birth certificate an alternative process by which Department of State officials will seek to verify a person’s birth. But in Wisconsin, where this scheme originated in response to five years (and counting) of litigation, the procedure has completely fallen apart in practice. Voters are not uniformly informed of the alternative and those who are informed become mired in endless local and state government bureaucracy attempting to establish their birth on U.S. soil. It is no fail-safe.

At last Wednesday’s hearing, Rep. Lyons stated that anyone seeking to exercise their Second Amendment rights to buy a firearm must show photo ID but if you buy a gun from ‘an unlicensed private seller’ at a gun show, flea market or online, then you are exempt from the federal ID law. It is at least true that you are asked to show photo ID to board an airplane but if you forget your wallet, there is a work-around, much like the current identity affidavit in Michigan. In any event, flying is not a right we enjoy as U.S. citizens; voting is.

The Legislature should not pass this legislation. If it does, Governor Snyder should veto it, as he vetoed voter ID requirements in 2012, and call instead for legislation to modernize Michigan’s election system, beginning with online voter registration.

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Jon Sherman is Counsel at the Fair Elections Legal Network, a nonpartisan organization in DC focused on election administration reform and voting rights issues.


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