Voter ID Laws

The Election Debate in the Potato State

Election Law Society · November 28, 2022 ·

By Ruth Jones

During the 2022 legislative sessions, Idaho experienced an extensive onslaught of proposed election legislation. In the 2022 legislative session, over 66 election law bills were introduced into the House. For comparison, in the year 2019, only 22 election law bills were introduced. This dramatic increase in proposed election legislation was fueled by growing concern from the state legislature, as well as Idahoans, that elections were not secure and that legislative action was necessary to ensure that the outcomes of elections were accurate and had not been influenced by electoral fraud.

As the Idaho Legislature debated House Bill 761, Representative Dorothy Moon took to the floor, to stress the need to improve the security of Idaho’s elections based on claims that Canadians have been crossing country lines to illegally participate in Idaho’s elections. However, this proposed example of fraud is completely unsubstantiated. The only recorded concerns regarding individuals crossing country lines to vote involved Americans who had left Idaho to enter Canada, and later returned to Idaho to vote. There, the court found that the Idahoans had not given up their registration and were permitted to vote.

Despite the inaccuracy of Moon’s account, her fears were echoed in other legislation. On the floor of Idaho’s House, the need to secure Idaho’s elections was constantly stressed. This is an important goal; however, it lacks that urgency stressed by the legislature as there have been no instances of voting fraud in Idaho since 2017.

Proposed House Bill 549 was also rooted in the desire to increase election security, and would have limited the approved type of IDs that citizens can use to prove their identity at the polls. It proposed to exclude the use of student ID cards. Many voters who have previously used a student ID will likely have an alternative form of photo identification. However, changing the ID requirements would be a major adjustment to the voting process. Despite any communication efforts, there would likely be individuals whose votes would be excluded because they were not aware of the change to approved types of ID and arrived at the polls unprepared.

The security of elections is an essential aspect of protecting the legitimacy of a democracy. If voter fraud frequently occurs, then individuals will not trust the outcome of elections and the system will fall apart. However, focusing on a potential problem that has not occurred can exasperate this situation by perpetuating misconceptions about the validity of electoral results.

The 2022 Idaho legislative docket is a good illustration of challenges that arise when a potentially serious concern is addressed without taking the time to craft a well-tailored approach to election fraud. Proposed House Bill 692 highlighted these fears.

This bill would have prevented individuals from voting if they have P.O. boxes because the law required voting registration forms to be mailed to a voter’s residence, even if they were unable to accept mail at the location. A regulation that prevented the use of P.O boxes would have an immense impact because Idaho is an incredibly rural state. Idahoans who live in these rural areas tend to use P.O. boxes because their houses are too far from the local town to receive mail. The bill would have implemented a requirement that would have excluded many Idahoans who rely on P.O. boxes for no grounded reason. Bill 692 was eventually pulled from the floor house, but it illustrates the danger of implementing legislation before thoroughly evaluating potential consequences.

Despite the efforts of many in the legislature, none of the above bills were enacted. In fact, out of the sixty-six bills that were proposed, only ten were adopted. The ten successful bills were much milder and included:

House Bill 511 which requires the rotation of names on the ballot to address any perceived advantage that was randomly given through a certain location on the list of candidates;
House Bill 566 which amends definitions in the Public Integrity in Elections act; and
Senate Bill 1341 which releases election results while balancing two time zones.

The election regulations that were approved in Idaho’s 2022 legislation session do not implement any major alterations to the voting process, and they are unlikely to cause significant challenges to voting accessibility.

In this regard, Idaho stands as an example. Despite mass panic regarding the security of elections, the legislative process has the potential to filter out half-baked proposals that unnecessarily exclude voters.

Reformation or Regression? Michigan Election Laws Divide Opinions

Election Law Society · January 24, 2022 ·

In June of this year, a series of three election reform bills passed both houses of the Michigan state legislature. Republicans comprise the majority in each house of the legislature, and all three bills were passed on party-line votes with all Republicans in favor and all Democrats opposed. The first of the three bills, SB 285, would impose new voter I.D. requirements on absentee voters. It would require voters to provide a photocopy of their I.D. (among other forms of acceptable identification) with their mailed application or present I.D. to the officials at the county clerk’s office when applying in person. Any voter who did not do so would be mailed a provisional ballot and be required to prove their identity before their vote could be counted.

Alabama Voter ID Law Here to Stay

cpkelliher · November 13, 2020 ·

By: Jeff Tyler

The Eleventh Circuit recently decided a 2015 lawsuit brought against Alabama’s voter photo ID law. The suit – brought by the Alabama NAACP, Greater Birmingham Ministries, and several individual plaintiffs – challenged Alabama’s requirement that all voters must provide photo ID in order to vote. Alabama’s voter photo ID law passed in 2011 with zero support from black legislators, but did not go into effect until 2014. In its lawsuit, the NAACP claimed that the photo ID requirement, as implemented, violates the Equal Protection clause of the Fourteenth Amendment, the Fifteenth Amendment, and Section 2 of the Voting Rights Act (“VRA,” now codified at 52 U.S.C. § 10301).

Live Free or Die (Unless You’re a College Student): HB 1264 Strengthens Voting Requirements in New Hampshire

Election Law Society · December 5, 2018 ·

Out-of-state students residing in New Hampshire will no longer be allowed to vote in the state without obtaining a New Hampshire driver’s license. The recently-promulgated HB 1264 will require college students, military personnel, medical residents, and other “temporary” residents to choose between becoming a New Hampshire resident or voting as an absentee in another state. Before Republican Governor Sununu signed the bill into law, the legislature asked the state Supreme Court to issue an advisory opinion on the constitutionality of HB 1264. In a 3-2 split decision, the New Hampshire Supreme Court found the bill constitutional. The bill will go into effect in 2019.

In 2017, Sununu expressed concerns about HB 1264’s potential to suppress the student vote. However, the advisory opinion issued by the court on July 12th paved the way for Sununu to sign the bill into law. Only one day after the court issued its opinion, Sununu signed the bill into law. After singing the bill, Sununu stated that he believes HB 1264 “restores equality and fairness to [New Hampshire’s] elections.”

HB 1264 amends the definitions of “resident” and “residence” to mean “domicile,” as defined in RSA 654:1. “Domicile” and “residence” are often used synonymously, but they have different meanings. The practical implication of changing the definition is that people who register to vote in New Hampshire now must obtain a New Hampshire driver’s license and register their vehicle in New Hampshire in order to be considered a “resident.” If a voter fails to do so within sixty days, he or she will have committed a misdemeanor punishable by up to one year in jail. Prior to HB 1264, a voter could prove residency by simply showing that he or she resided in New Hampshire more than any other place. The bill, therefore, has its biggest impact on out-of-state college students. Students who are entrenched and engaged in the New Hampshire communities where they attend college will now have to decide whether to purchase new licenses and car registrations or vote in their native states instead.

Opponents of the bill argue that HB 1264 places an unjustifiable burden on students’ right to vote. In a brief, the ACLU-NH asserts that the bill arbitrarily targets college students who are domiciled in the state but are non-residents, depriving them of their constitutional right to vote in New Hampshire. The ACLU argues that HB 1264 does not pass strict or intermediate scrutiny, because it does not serve any government interest at all. They counter the state’s argument that the bill reduces voter fraud by stating that “[t]here is no justification to impose these fees to deter fraud because these voters are, by definition, constitutionally entitled to vote here and are not fraudulent.”

In Symm v. United States, which was decided in 1979, the Supreme Court held that college students have a right to vote where they attend college. Moreover, the U.S. District Court of New Hampshire upheld this right in Newburger v. Peterson when it found that legislation requiring students to declare an intention to stay in New Hampshire indefinitely in order to vote was unconstitutional. Opponents of the bill, such as Senator Dan Feltes, argue that HB 1264 is inconsistent with cases such as Symm and Newburger. The New Hampshire Supreme Court did not directly address the implications of Symm on HB 1264. The court did, however, state that HB 1264 does not discriminate against college students, because it is their choice to either change their identification documents or not. The court also explained that the bill is consistent with Newburger, because while the U.S. District Court of New Hampshire held that students should be able to vote when they are members of the political community, it did not hold that there are no consequences to being considered a member of that community.

Supporters of the bill have argued that the change in definition protects New Hampshire against voter fraud, and the state Supreme Court agreed. The three justices in the majority, who were each nominated by Sununu, found that HB 1264 withstands strict scrutiny. The court stated that it has “repeatedly emphasized that insuring that those who are permitted to vote are bona fide residents who share a community of interest with other citizens of the jurisdiction is a legitimate concern of the highest order.” The court also opined that HB 1264 is “narrowly drawn to advance the compelling governmental interest in insuring that voters are full members of the electoral community.” Moreover, the court emphasized that the bill does not prevent anyone from voting. Although it may disproportionately affect college students, the court noted that students who do not vote in New Hampshire because of the bill will be choosing not to.

The state Supreme Court’s advisory opinion is non-binding. The two dissenting justices dissented not on constitutional grounds, but because they felt it was improper to issue an opinion without a factual record. Given that the bill does not take effect until July 1, 2019, it is likely that litigation over the bill will ensue. The non-binding nature of the advisory opinion leaves the door open, and begs the question – how will the court rule when presented with a factual record to base its opinion upon?

The Crossroads of America v. The Lone Star State: Comparison of Indiana and Texas ID Laws

Election Law Society · February 19, 2016 ·

By: Katie Teeters

Voter ID laws are spreading across the country leaving controversies in their wakes. Advocates believe requiring ID is a good way to prevent in-person voter fraud and increase public confidence in the election process, while opponents say that voter ID laws unduly burden the right to vote. Still, a total of 36 states have passed laws requiring a showing of some form of identification in order to vote. This blog post will take a look at voter ID laws and their respective implications in Texas and Indiana.