Voter Photo ID and Privacy

Top News

  • Federal Appeals Court Strikes Down Texas Voter ID Law: A federal appeals court has ruled that a Texas voter ID law violates the Voting Rights Act. In a fractured opinion, the court held that Senate Bill 14 had a “discriminatory effect” on minorities’ voting rights, and remanded the case to the lower court. The appeals court instructed the district court to provide interim relief for individuals, which could include suspending the voter ID requirement, ahead of the November 2016 election. EPIC filed an amicus brief in the case, arguing that SB 14 also places an unconstitutional burden on voters’ rights to informational privacy because of the excessive collection of personal data. (Jul. 20, 2016)
  • EPIC Urges Appeals Court to Strike Down Voter ID Law: EPIC has urged a federal appellate court to find unconstitutional a Texas law that requires voters to obtain photo IDs. A lower court held that Senate Bill 14 violates the Voting Rights Act and burdens the constitutional right to vote. Texas appealed. In response, EPIC argued that the ID requirement also burdens the constitutional right of informational privacy. “Individuals should not be subject to excessive identification requirements to exercise fundamental democratic rights,” EPIC stated. EPIC has previously filed amicus briefs defending the right to informational privacy. (May. 17, 2016)
  • More top news

  • Federal Court Strikes Down Texas Voter ID Law + (Aug. 6, 2015)
    The U.S. Court of Appeals for the Fifth Circuit has ruled that the strict Texas Voter ID requirement is unlawful because it would disproportionately burden minority voters, in violation of the Voting Rights Act. EPIC has previously raised similar arguments about voter privacy in its amicus brief in the Supreme Court case Crawford v. Marion County Election Board. EPIC argued in Crawford that "Not only has the state failed to establish the need for the voter identification law or to address the disparate impact of the law, the state's voter ID system is imperfect, and relies on a flawed federal identification system." EPIC also presented a statement to the House Judiciary Committee in 2007 highlighting the importance of the secret ballot.
  • Supreme Court Strikes Down Voter ID Law + (Oct. 10, 2014)
    The US Supreme Court has ruled that officials in Wisconsin may not requires voters to present photo ID before voting in an upcoming election. A federal court in Texas also struck down a state voter ID requirement saying it disproportionately burdened minority voters. In 2007 EPIC raised similar arguments in an amicus brief for the US Supreme Court in Crawford v. Marion County. EPIC said of the Indiana ID law, “Not only has the state failed to establish the need for the voter identification law or to address the disparate impact of the law, the state’s voter ID system is imperfect, and relies on a flawed federal identification system.” The Supreme Court upheld the law. Justice Souter dissented, saying “this statute imposes a disproportionate burden upon those without” government-issued photo IDs. For more information, see EPIC: Voter Photo ID and Privacy and EPIC: Voting Privacy.
  • Federal Court Panel Blocks South Carolina Voter ID Requirement + (Oct. 15, 2012)
    A special panel of federal judges in Washington, DC has barred the state of South Carolina from enforcing new voter identification requirements in the upcoming November elections. The court was "unable to conclude" that South Carolina could implement its voter identification law in a way that would "suffice under the Voting Rights Act" before the upcoming elections. The court did grant preclearance to implement the law after the November elections citing the "extremely broad interpretation of the reasonable impediment provision," which allows South Carolina voters to still vote if they complete an affidavit affirming their identity and state the reason for not having obtained photo identification. EPIC has previously argued that voter ID requirements impermissibly burden the right to vote. For more information, see EPIC: Voter ID and Privacy and EPIC: Crawford v. Marion County.
  • Pennsylvania Judge Blocks Voter ID Requirement + (Oct. 3, 2012)
    A Pennsylvania district court barred the state from enforcing voter identification requirements in the upcoming November elections. Following guidance from the state Supreme Court, Judge Robert Simpson issued a narrow preliminary injunction. He ordered that Pennsylvania may not require photo IDs to vote in November. Election officials may ask voters for identification, but those without ID may still cast regular ballots. Judge Simpson explained that the state Supreme Court identified "the essential offending activity as voter disenfranchisement, not a request to produce photo ID." EPIC has previously argued that voter ID requirements impermissibly burden the right to vote. For more information, see EPIC: Voter ID and Privacy and EPIC: Crawford v. Marion County.
  • Pennsylvania to Reconsider Voter ID Law + (Sep. 21, 2012)
    The Pennsylvania Supreme Court has ruled that a lower court must determine whether the State's strict voter ID can lawfully be implemented before the national election on November 6. The Supreme Court said that the "disconnect between what the law prescribes and how it is being implemented" raises questions. EPIC has previously argued that voter ID requirements are an impermissible burden on the right to vote. EPIC: Voter Photo ID and Privacy and EPIC: Crawford v. Marion County.
  • 2012 Democrat Platform Endorses Internet Privacy + (Sep. 4, 2012)
    The 2012 Democratic National Platform supports the administration’s Internet Privacy Bill of Rights to protect consumer privacy. Separate provisions in the platform call for privacy protections for broadband deployment, intellectual property enforcement, and cybersecurity laws; the Democratic platform opposes voter identification laws. However, the platform is silent on the Fourth Amendment, and retreats from the 2008 Democratic platform that opposed surveillance of individuals that were not suspected of a crime. In 2008, Candidate Obama promised to "strengthen the privacy protections for the digital age and to harness the power of technology to hold government and business accountable for violations of personal privacy.” The 2012 Republican Platform was released last week. The Libertarian and Green Party platforms are also available. For more information, see EPIC: Privacy and Consumer Profiling, EPIC: Voter Photo ID and Privacy, EPIC: National Security Letters, and EPIC: Cybersecurity Privacy Practical Implications.
  • Federal Appellate Court Strikes Down Texas Voter ID Law + (Aug. 30, 2012)
    The D.C. Circuit Court of Appeals has invalidated a Texas law that would require voters to present a photo identification in order to vote. Calling the law “the most stringent in the country,” the court held that “record evidence suggests that [the law], if implemented, would in fact have a retrogressive effect on Hispanic and African American voters.” Therefore, the court held, the law violates section 5 of the Voting Rights Act of 1965. Section 5 requires “covered jurisdictions” to show that new voting procedures, such as Voter ID requirements, are nondiscriminatory before those changes can be put into effect. The ruling came after the Department of Justice previously blocked the law through the Section 5 preclearance process. EPIC has argued that unreasonable voter ID requirements are an impermissible burden on the right to vote. For more information, see EPIC: Voter Photo ID and Privacy and EPIC: Crawford v. Marion County.
  • 2012 Republican Platform Addresses Privacy and Government Surveillance + (Aug. 29, 2012)
    The 2012 Republican Party Platform calls for strong Constitutional protections for privacy and new safeguards for personal data held by businesses. "We will ensure that personal data receives full constitutional protection from government overreach and that individuals retain the right to control the use of their data by third parties," the platform states. The platform also criticizes TSA screening procedures and calls for warrant requirements for most law enforcement-operated drones. However, other provisions endorse voter identification laws and increased disclosure of personal information to the government for cyber security. For more information, see EPIC: Privacy and Consumer Profiling, EPIC: Whole Body Imaging Technology and Body Scanners, EPIC: Unmanned Aerial Vehicles (UAVs) and Drones, EPIC: Voter Photo ID and Privacy, and EPIC: Cybersecurity Privacy Practical Implications.
  • Second Wisconsin Judge Strikes Down State Voter ID Law + (Jul. 23, 2012)
    In a second challenge to Wisconsin's voter ID requirement, Judge David Flanagan has held that the ID law imposes an unconstitutional burden on the right to vote. The law "tells more than 300,000 Wisconsin voters who do not now have an acceptable form of photo identification that they cannot vote unless they first obtain a photo ID card," wrote Judge Flanagan. The opinion follows a similar ruling earlier this year by Wisconsin judge Richard Niees. For more information EPIC: Voter Photo ID and Privacy and EPIC: Crawford v. Marion County.
  • Senate Judiciary Holds Hearing on Voter Suppressions + (Jun. 27, 2012)
    The Senate Judiciary Committee held a hearing on “Prohibiting the Use of Deceptive Practices and Voter Intimidation Tactics in Federal Elections." The Senate is considering new legislation to address the problem of deceptive practices and voter intimidation. Committee Chairman Patrick Leahy cited "burdensome identification laws" as one of the obstacles to public participation in federal elections. A new report highlights similar problems in the recent Canadian national election. EPIC has published reports on deceptive campaign practices and filed briefs in opposition to unnecessary voter ID requirements. For more information see EPIC Voting Privacy and EPIC - Crawford v. Marion County.
  • Federal Appeals Court Backs Justice Department in Voting Rights Dispute + (May. 18, 2012)
    The Court of Appeals for the District of Columbia Circuit issued an opinion rejecting Shelby County, Alabama's constitutional challenge to the preclearance requirements of the Voting Rights Act of 1965. The Court held that Section 5 of the Act, which requires "covered jurisdictions" to show that new voting procedures, such as Voter ID requirements, are nondiscriminatory before those changes can be put into effect, is constitutional. Shelby County challenged the preclearance requirements after Congress reauthorized Section 5 in 2006. The Department of Justice recently blocked Voter ID laws in South Carolina and Texas through the Section 5 preclearance process. EPIC has argued that unreasonable voter ID requirements are an impermissible burden on the right to vote. For more information, see EPIC: Voter Photo ID and Privacy and EPIC: Crawford v. Marion County.
  • District Court Panel Admonishes South Carolina in Voter ID Case + (Apr. 26, 2012)
    A three-judge panel overseeing a critical voter ID case, State of South Carolina v United States of America, set out an unusually detailed requirements in an Scheduling and Procedures Order issued today. According to the concurring statement of Judge Bates, joined by Judge Kollar-Kotelly, the state has engaged in delaying tactics even as it has urged a swift resolution of the matter, concerning new voting ID procedures adopted by the state. The court cited South Carolina's lack of responsiveness to the Department of Justice, "despite repeated requests" for the "final versions of the implementing procedures" for provisions of the law. The court expects to issue a final ruling in early September 2012., prior to the fall Presidential election. For more information, see EPIC: Voter Photo ID and Privacy.
  • Justice Department Strikes Down Texas Voter ID Law + (Mar. 12, 2012)
    The Department of Justice has determined that a Texas voter ID law that requires photo identification violates the Voting Rights Act of 1965. The Texas law requires voters to present a driver's license or ID card issued by the state. The law also permits a voter to use military photo ID, a US citizenship certificate that contains the person's photograph, a US passport, or a license to carry a concealed handgun. The Department of Justice found that the Texas voter ID law disproportionately affects Hispanic voters because Hispanic voters are between 47% and 120% more likely than non-Hispanic registered voters to lack acceptable photo identification. The Department of Justice found that Texas "has not met its burden of proving that . . . the proposed [voter ID law] will not have a retrogressive effect, or that any specific features of the proposed law will prevent or mitigate that retrogression." In the voting conext, "retogression" refers to the disenfranchisement of eligible voters. For more information, see EPIC: Voter Photo ID and Privacy.
  • Court Blocks Wisconsin Voter ID Law + (Mar. 6, 2012)
    A Wisconsin state court has granted a temporary order blocking the state from enforcing a new voter ID requirement. Wisconsin is one of eight states that now require voters to present a government-issued photo ID. Voter ID laws typically discourage voter turnout, particularly among poor and minority communities. In NAACP v. Walker, the Wisconsin court said that the "scope of impairment has been shown to be serious, extremely broad and largely needless." For more information, see EPIC: Voter Photo ID and Privacy.
  • Senators Seek Study on Voter ID Laws + (Feb. 29, 2012)
    A group of U.S. senators have asked the Government Accountability Office to study the “alarming number” of new state laws that will make it “significantly harder” for millions of eligible voters to cast ballots this November. New state identification laws, by one estimate, will have a direct impact on 21 million American citizens who do not have a government-issued photo ID. The majority of those people are young would-be voters, the elderly, African Americans, Hispanics, and those earning $35,000 per year or less. For more information, see EPIC: Voting Privacy and Voter Photo ID and Privacy.
  • Virginia Senate Narrowly Approves Voter ID Law + (Feb. 28, 2012)
    The Virginia Senate passed a controversial voter photo ID law by one vote. The bill now goes to the Virginia House for consideration. Voter ID laws implicate the privacy rights rights of voters and also discourage voter turnout particularly among poorer voters who may not have necessary credentials, such as a drivers license. In 2007, EPIC challenged the Indiana voter photo ID law. For more information, see EPIC: Voting Privacy and EPIC: Crawford v. Marion County.
  • Justice Department Challenges South Carolina's Voter ID Law + (Dec. 28, 2011)
    The Justice Department has blocked South Carolina's voter ID law, calling it a violation of the federal Voting Rights Act. The Department said the new photo ID requirements would dispropotionately exclude eligible minority voters from federal elections. The South Carolina law prohibits voting by anyone who does not possess a state driver's license, US Passport, Military ID, or voter registration card. Many eligible voters who participated in the 2008 and 2010 elections may be prevented from voting in 2012. Earlier, EPIC filed an amicus brief in the Supreme Court, challenging an Indiana voter ID law. See EPIC: Voter Photo ID and Privacy and NCSL: State Voter ID Laws.

Introduction

In the US, voting civil rights advocates are locked in a struggle with federal, state and local authorities over more restrictive voter identification and authentication requirements. This clash over poll place practices and voter ID requirements was initially triggered by the passage of the Help America Vote Act of 2002, which increased federal election requirements for first-time voters who register to vote by mail. These requirements include that voters provide a form of identification prior to voting in person for the first time. According to the Act, acceptable forms of identification could include a photo ID, "utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter."

While new ID requirements might appear minor to most voters, they threaten both privacy for all US voters and civil rights for marginalized voter populations. Similarly, while the states raise barriers to in-person voter participation through the new requirements, they leave the gate wide open to actual voter fraud threats posed by absentee voting.

EPIC has a long history of working on voter privacy issues, which this government issued photo ID requirement strongly affects. In a March 2007 statement to the U.S. House Committee on the Judiciary, EPIC cautioned against new photo identification and proof of citizenship requirements for federal elections. Absent evidence of an actual problem, EPIC warned that the requirements could discourage legal voters. EPIC noted that Congress has already provided for provisional ballots for instances when there are doubts about the status of voters seeking to cast ballots in public elections.

In 1992, EPIC filed a voter registration privacy case in Greidinger over the state of Virginia's practice of collecting Social Security Numbers and making them publicly available. In that case EPIC prevailed by the decision of the court to prohibit the state of Virginia from requiring citizens who wish to register to provide a Social Security Number.

In 2007, EPIC filed a brief in the Crawford v. Marion County, strict voter government issued ID case to protect voting privacy rights of Indiana voters. Challenging the position of the state that the government issued photo ID requirement would add security to state elections. Further, the state of Indiana's poll worker training material on photo ID's used by the state to educate poll workers on acceptable and unacceptable photo IDs was questionable.

Status of US Voter ID Laws in 2016

Voter identification laws can generally be categorized in two ways: First, photo vs. non-photo identification required. Second, non-strict (voters without acceptable ID have an option to cast a ballot that will be counted without further action on the part of the voter, either by signing an affidavit or having a poll worker "vouch" for the voter) and strict (voters without acceptable identification must vote on a provisional ballot and take steps in order to have their vote counted).

In 2016, 17 US states (CA, IL, IA, ME, MD, MA, MN, NE, NV, NJ, NM, NY, OR, PA, VT, WV, WY) and the District of Columbia verify voter information without ID documents.

Sixteen states (AK, AZ, AR, CO, CT, DE, KY, MO, MT, NH, OH, NC, OK, SC, UT, WA) require one of several forms of non-photo voter identification, including utility bills or bank statements. Three of these states, Arizona, and Ohio have a strict law in place, meaning voters without acceptable non-photo identification must vote on a provisional ballot and take steps in order to have their vote counted.

Voters in eight states (AL, FL, HI, ID, LA, MI, RI, and SD) have "non-strict voter photo ID laws," meaning voters are requested to show a photo ID, but if they do not hold one they have several other options, including providing other forms of personal information or signing an affidavit of their identities, or another voter with a photo ID can attest to the identity of a voter without a photo ID.

Nine US states have so-called "strict voter photo ID laws," which restrict voting rights to those who hold a government-issued photo identification document. In early 2011 only two states, Georgia and Indiana, had enacted "strict voter ID" laws. Since then, Kansas, Mississippi, North Dakota, Tennessee, Virginia, Texas (see note) and Wisconsin have enacted laws requiring voters to show a government-issued photo identification document. [Texas Note: In August 2015, the Fifth Circuit Court of Appeals ruled that the strict Texas voter ID requirement is unlawful because it would disproportionately burden minority voters. The case is currently awaiting an en banc hearing.] Arkansas enacted a strict photo voter ID law, but it was struck down by the Arkansas Supreme Court.

View the National Conference on State Legislature's map of voter identification laws in effect in 2016

History of US Voter Identification

Voting in the US was initially limited to white male landholders, but this civil right was gradually extended to include non-landholders, persons of color, women, and 18-20- year-olds. Historically, however, each extension of voting rights was not always welcomed by local and state officials due to the legacy of slavery, ethnic codes, and other laws that limited the civil rights of women, poor whites, blacks, Hispanics, Asians, Native Americans, and new citizens.

Union Army occupation of the South following the Civil War instituted civil rights reform that allowed former slaves to vote, which made possible a large number of free black citizens to hold local, state, and federal office. However, predominantly Southern states were particularly creative in establishing "Jim Crow" laws to restrict the voting rights of former slaves. These laws focused on establishing polling place practices intended to prevent certain voters from participating in public elections. These measures included "Grandfather Clauses," "Intelligence Tests," and "Literacy Tests." Many tests were impossible to answer, such as: "How many bubbles are in a bar of soap?"

To further remove minority and poor white voters from the voting process, local governments imposed "poll taxes," which required voters to pay a fee to vote in public elections. These practices, joined with violence against those who challenged these polling practices, effectively removed from public office every black Congressional office holder elected during Reconstruction.

The civil rights movement of the 1950s and 1960s dismantled the "Jim Crow" laws. Congress passed the 24th Amendment to the US Constitution on August 27, 1962 and the Amendment was ratified by two-thirds of the nation's state legislatures by September 23, 1962. The 24th Amendment prohibits a state or the federal government from requiring a "fee" from voters in order for them to cast a ballot in federal public elections. The Voting Rights Act of 1965 provided additional tools to protect voters from discrimination and violence, by establishing the Department of Justice as the federal agency with the power to sue states that restricted the voting rights of minorities.

Privacy and Voter ID

Increased voter identification requirements oblige voters to obtain at least one form of identification for which the state typically collects a fee. Some states allow persons who cannot afford a card to obtain one for free; however, this method can require documented proof of identity, state residency, citizenship and indigence or income. Voter registration applicants are often required to apply for such cards well in advance of an election. The current economy will place additional burdens on a larger number of voters than at any time in recent history, as well as added expenses to states, at a time when state, local, and personal budgets are under extreme stress. States also must provide transparency to voters regarding voting changes, and offer adequate resources to meet the rush of demand for photo identification or other forms of acceptable documents that can be obtained in time for voters to participate in the next election.

Increased voter identification requirements oblige all citizens presenting themselves at voting locations - the vast majority of whom presumably arouse no suspicion - to disclose not only their names but also all information that appears on their form of government-issued photo identification. Further, voters are required to present the cards not to police but to poll workers, most of whom are neither professionally licensed in law enforcement nor permanent government employees. Voting ID requirements mandate self-identification not in the context of criminal apprehension but as a condition to an innocent person's exercise of the constitutional right to vote.

The most common form of government-issued photo identification is a driver's license, which includes the voter's name and photographic likeness but also may include such information as the voter's age, height, weight, driver's license number, restrictions owing to disability or impairment (such as for imperfect vision or a prosthetic limb), and fingerprints. Furthermore, states, rather than voters, have sole control over the information placed into a state-issued ID card, and the applicant for such identification cannot choose to withhold certain data. Changes in the design and content of driver's licenses and other state-issued identification are also at the government's discretion. Any changes may not consider the requirements set forth by state laws governing voter ID requirements.

Furthermore, in recent years states have increased the numbers and types of documents required to obtain state-issued drivers licenses or other identification documents. These requirements have proven to be costly and in some cases burdensome because the funds necessary for purchasing them or the underlying documents were impossible to obtain.

The cumulative effects of what many would deem a minor burden on voter rights would be substantial over time because checking papers, according to University of Toledo professor DJ Steinbock, has "an additional subjective effect on a grand scale: the psychic harm to free people of having to ‘show your papers'.... Not only would people forced to go through identity checkpoints experience some degree of fear and surprise, but also knowing that this has become a permanent part of the social fabric would diminish their sense of liberty."

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