Following Republican victories in the 2010 midterm elections, legislatures around the country passed new voting laws. Today, 10 states require photo identification to vote and most states allow early voting and provisional ballots. Democrats say some of these laws discourage minorities and the poor from voting. Republicans argue they prevent fraud. Courts in the battleground states of Pennsylvania and Ohio will hear arguments this week on voter ID and early voting. And in Florida, a battle over voter registration might cause a replay of the 2000 presidential election. Diane and guests discuss new voting laws and how it will impact the 2012 presidential race.

Guests

  • Bruce Fein former associate deputy attorney general, Republican counsel during the Iran-Contra hearings and founding partner with the Lichfield Group.
  • Spencer Overton professor at The George Washington University Law School.
  • Richard Hasen Chancellor's professor of law and political science at the University of California, Irvine School of Law.
  • John Fortier director of the Democracy Project at the Bipartisan Policy Institute.

Transcript

  • 10:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. With the presidential election just eight weeks away, state courts have handed down conflicting decisions on voter ID, early voting and provisional ballots. Some of these may be headed for the Supreme Court, which could reprise its controversial role in the 2000 election. Joining me in the studio to talk about how voting laws might decide the 2012 presidential race: Spencer Overton of the George Washington University Law School, Bruce Fein of the Lichfield Group and John Fortier of the Bipartisan Policy Center.

  • 10:07:42

    MS. DIANE REHMJoining us from a studio in Boston, Richard Hasen of the University of California, Irvine School of Law. I hope you'll join us as well, 800-433-8850. Send us your email to drshow@wamu.org. Join us on Facebook or send us a tweet. Good morning, gentlemen. Thanks for joining us.

  • 10:08:10

    MR. BRUCE FEINGood morning, Diane.

  • 10:08:11

    PROF. SPENCER OVERTONGood morning.

  • 10:08:12

    MR. JOHN FORTIERGood morning.

  • 10:08:13

    PROF. RICHARD HASENHello.

  • 10:08:14

    REHMGood to have you all with us. Rick Hasen, I'll start with you. Remind us how we got here with these voting laws and the three categories these laws fall into.

  • 10:08:30

    HASENWell, the 2000 election really started us down the road towards much more change in our election system, much more litigation. And just over the past few years, we've seen a number of states enact new laws that changed the rules for voter identification that affect the rules for provisional balloting. And most recently, we've seen some changes in early voting, and some of these changes have been challenged in court.

  • 10:09:01

    HASENAnd so now we have some uncertainty as to what exactly the rules are going to be, especially in some of the battleground states such as Ohio, Iowa, Pennsylvania and Colorado.

  • 10:09:14

    REHMAnd what about Texas and New Hampshire?

  • 10:09:19

    HASENWell, you know, we are -- we saw some recent rulings there in the -- a three-judge district court in Washington, D.C. just held that Texas could not enforce its voter identification law. That case is going to be appealed to the Supreme Court, but we're not expecting anything to happen in that case in time for the 2012 election. In New Hampshire, you have the Department of Justice that has agreed to let New Hampshire put its ID law into effect, an ID law that was very different than the one that the three-judge court, talking about Texas, called perhaps the most stringent law in the nation.

  • 10:10:04

    REHMBruce Fein, we've got different standards applying to different states like Pennsylvania, South Carolina, Florida, Wisconsin, Iowa. How come you got different standards applying to different states?

  • 10:10:20

    FEINWell, there's a long history, but it traces back largely to the 1965 Voting Rights Act, which selected out certain states who had a history of suppressing, largely, black votes for special scrutiny by the federal government, either the Justice Department or a three-judge court, so that voting laws couldn't be changed in a manipulative way that would adversely affect minority turnout, minority voting. It's called, you know, Section 5 is what the lawyers called the pre-screening of any state law that changes a voting practice.

  • 10:10:53

    FEINAnd so you have states like Texas, it's largely in the south but you've got counties in Florida, counties that aren't complete states elsewhere that have to run through a screening of the Department of Justice or a three-judge court to show not simply that a voting change doesn't have a discriminatory purpose behind it whose goal is to suppress voting, but its effect will not adversely impact minority voters. And that explains much of the different legal landscape between, say, a state like Texas as opposed to Pennsylvania or New Hampshire or otherwise.

  • 10:11:27

    FEINThere's also an issue as to whether or not the Section 5 provision at this time and day, 2012, is constitutional, whether there's been sufficient showing by Congress when it most recently extended the act of a continuing legacy of impact by the long history of Jim Crow to justify this rather extraordinary measure because it's not typical that a state has to submit to federal authorities vetting its own changes of law. And that's something that the Supreme Court has indicated an interest in reviewing it. Now that could the entire voting rights landscape.

  • 10:12:03

    REHMSpencer Overton, what about the original Indiana voter ID law? What happened there that courts are looking to that law for precedent here?

  • 10:12:17

    OVERTONRight. In that particular case, the court upheld a photo ID requirement in Indiana. Indiana was one of the first two states to have an ID. In the Crawford case, the court said that it was constitutional that maybe you could have an as-applied challenge but kind of a broad challenge would not be successful. A quick note on that is there was not an extensive record in that case in terms of people who were excluded. And so the facts are going to vary. I just want to also pick up on one thing that Bruce said.

  • 10:12:56

    OVERTONThis notion of different rules is inherent in our Constitution in terms of across the country, right? Where you -- your right to vote depends on where you live. Our founders basically defer to states in terms of most voting rules, and many counties, you know, have different rules as well. So essentially, we have about 4,600 different sets of election rules around the country. Now, there are some that are uniform like some parts of the Voting Rights Act and a few other federal laws, but, mostly, elections are regulated by states and counties.

  • 10:13:35

    REHMBut what's wrong with these laws from your perspective? Don't they simply assure fair voting?

  • 10:13:44

    OVERTONWell, I don't think so because I don't think that fraud is our major problem here. I think our major problem -- you know, we've got two big problems. One is turnout. The United States is in the bottom 19 percent of all democracies in the world in terms of turnout. We want government of, by, and for the people. So that's one big problem. And another big problem we have is that politicians historically have used gerrymandering and barriers to the ballot to determine what the electorate looks like and to determine who wins elections.

  • 10:14:17

    OVERTONIt's a situation where the voters don't select the politicians, but the politicians select the voters. So those are the two big problems. And unfortunately, these restrictions make those problems worse.

  • 10:14:30

    FEINDiane, I think...

  • 10:14:30

    REHMJohn -- hold on, Bruce. John Fortier, is Spencer right that barrier to the ballots is behind all of this?

  • 10:14:42

    FORTIERWell, I think he's partly right. I think both Bruce and Spencer are correct that we have very, very different laws in all of our states and that really is baked into our Constitution and has been that way for a long time. What that means is that when one party takes over a state apparatus -- Republicans did very well in 2010 -- they're interested in what you'd say their form of election reform which, to oversimplify on the Republican side, more worries about voter integrity, the messiness of our list, people being able to vote twice or show up in someone else's name or vote by absentee fraudulently.

  • 10:15:14

    FORTIERAnd Democrats, you know, have a somewhat partial version also where they come in and take voter access as the highest goal, to put in same-day registration and other forms of making voting easier. I mean, ultimately, we want both. We can have both. We want a system where widely people can vote and also that only the people who are allowed to vote should vote, that the right people are on the list, that there's access. So do some of these laws perhaps go too far?

  • 10:15:41

    FORTIERYou know, I think we could certainly approve a lot of things in the system, especially the underlying voter registration system. But are Republicans right when they say there's a lot of messiness in the system and that if you just show up to the polls, like in many states, and say state your name, who are you, showing nothing, showing no non-photo ID, maybe signing your name, you know, that seems a little too far in the other direction as well.

  • 10:16:04

    REHMBut does messiness equal fraud?

  • 10:16:10

    FORTIERWell, there certainly is some fraud out there. I don't want to start conspiracies to say that there's widespread fraud. There's certainly a lot of fraud. Some of the people against voter ID will certainly admit that in the absentee ballot realm where the ballot leaves the polling place, you don't have all those protections, there's more worry about that.

  • 10:16:27

    FORTIERI don't think there is widespread fraud, but I think it is the responsibility, in some ways, of voting officials to at least know who that person is. Are they the right person? There are less and more onerous ways of doing that, but it's part of the responsibility of voting officials.

  • 10:16:41

    REHMJohn Fortier, he is director of the Democracy Project. That's a Bipartisan Policy Center. He's author of "Absentee and Early Voting: Trends, Promises and Perils." Bruce Fein is founding partner and principal of the Lichfield Group, former associate deputy attorney general in the Reagan administration. Spencer Overton is professor of law at George Washington University, author of "Stealing Democracy: The New Politics of Voter Suppression."

  • 10:17:21

    REHMAnd Richard Hasen is professor of law and political science at the University of California, Irvine School of Law and author of "The Voting Wars: From Florida 2000 to the Next Election Meltdown 2012." And you are invited to join us, 800-433-8850. Bruce Fein.

  • 10:17:51

    FEINIt's no doubt true that many voting provisions are discrepant throughout the various states, but, as a country, we've come to conclude there are certain distinctions that we will not tolerate. The 15th Amendment says it doesn't matter what state you're in. You can't be denied the right to vote because of race. The 19th Amendment, as you well know, says it doesn't matter what state you're in. You can't be denied the right to vote because of your gender.

  • 10:18:13

    FEINThe poll tax amendment says you can't be denied the right to vote 'cause you don't have money to pay a poll tax. And it seems to me where -- the United States Supreme Court got it wrong by saying statutes intended to disadvantage a political party because of political affiliation passed constitutional muster. I think that's wrong. You shouldn't be disadvantaged because you believe a certain set of political principles.

  • 10:18:32

    REHMBruce Fein. And short break here. We already have a great many callers. I'll look forward to speaking with you after the break.

  • 10:20:04

    REHMWelcome back. And as we talk about voter ID laws across the country, you can go to drshow.org to see an interactive map of voter ID requirements across the country. Rick Hasen, let me come back to you. What's happening in South Carolina? Tell us about that situation.

  • 10:20:32

    HASENWell, South Carolina is also, like Texas, subject to Section 5 of the Voting Rights Act. And so there too, a court is looking at whether or not South Carolina's law violates Section 5. We're expecting closing arguments in that case very soon. One of the differences between Texas and South Carolina is that South Carolina's law is not as stringent. And, in fact, South Carolina seem to say at the trial that they would make very wide accommodations for voters who don't have an ID and can just give a reason as to why they don't.

  • 10:21:08

    HASENIt's not clear if the court is going to put the ID law into effect at all, and if it is, if it's going to act in time for it to be put into effect for 2012. And that raises the question also coming up in Pennsylvania whether we're getting too close to the election to start changing the rules as to ID or anything else, which has the potential to confuse voters as to what they need to do to be able to vote on Election Day.

  • 10:21:34

    REHMAnd one of the people who testified in that case was Delores Freelan. Spencer Overton, tell us about her.

  • 10:21:43

    OVERTONYes. And you can go to YouTube and see a video of her talking about her situation. Delores is a woman -- a South Carolina woman, African-American woman. She couldn't get a state photo ID because her birth certificate from 60 years ago, it bears only her maiden surname, so not her first name. And she's got an expired Louisiana driver's license. She moved from Louisiana. That won't do her any good. Her Social Security card won't do her any good. And a state medical card didn't help. So she is effectively disenfranchised as a result of this.

  • 10:22:21

    REHMAnd what do you think about this, John Fortier, not only in terms of Delores Freelan herself, but the idea that we're getting way too close to the election to be changing laws on people?

  • 10:22:38

    FORTIERYeah, I think we're nearly at that point. So any change, whether it's a change in the direction of voter ID or any other sort of change to allow more access is usually confusing to voters and has to be implemented by voting administrators. So it's not as if they can simply pull the switch and say, you know, one law one day, one law the other day. I do think we're much too close, and we would be much better to resolve these things well in advance of the election.

  • 10:23:00

    REHMBruce Fein.

  • 10:23:01

    FEINDiane, I think we need to get a little bit Earth-bound as to what's motivating these state legislatures. Now, we can talk about high principle of making sure the integrity of the voting booth is honored. But we know these are politicians that are elected because they're Republicans or Democrats. The reason why the more stringent provisions have been enacted is quite clear. Those who vote for it think it'll depress the turnout for the opposing party. That's what politicians think about. That's what they're experts at.

  • 10:23:29

    FEINThat's how they draw district boundaries, et cetera. And think also of how counterintuitive it is that a person would risk a felony conviction by impersonating someone else to vote when the likelihood of it affecting the election, one vote, is got to be close to zero. And if you look at the so-called documentation that would purportedly antedate passing the law that says, my gosh, we've got this huge problem, it doesn't exist there.

  • 10:23:55

    FEINThe legislators know what the impact is likely to be based on their experience with regard to the vote turnout of their own part of the other party and vote accordingly. It's basically, in my judgment, an effort to handicap a voter because of his political affiliation, I think, is just wrong.

  • 10:24:10

    REHMJohn Fortier.

  • 10:24:11

    FORTIERWell, I think it's a bit unfair to say that Republicans who passed these laws really do have a complete self-interest in mind. If we say that, then when a Democratic legislature passes a same-day registration law or opening up things, we say, well, they're only self-interested, too. I think it's deeper in the ideology of the parties. The average Republican voter is more worried about turnout. There's actually widespread public support for voter ID. They may not know all the details. Maybe they need to be convinced.

  • 10:24:36

    FORTIERBut it's certainly a majority opinion by significant amounts. So, I guess, I'm -- I do see that things can go overboard and -- but I think it's ultimately a much bigger difference between the ideas of the party than it is about (unintelligible).

  • 10:24:48

    REHMSpencer Overton.

  • 10:24:50

    OVERTONYou know, I agree with John in terms of, I think, ideology plays a part of it. I don't think it's everything though. So if we look at the MOVE Act, which basically made it easier for military people overseas to cast a ballot, they reduced basically the identification requirements by saying you don't need to get a notary. So there wasn't a concern about fraud there. In Iowa, in the Republican caucus, there was no ID required even though that was the law. And so I agree that ideology sometimes motivates things, but I also think that partisan interest advances it as well.

  • 10:25:30

    REHMAs an African-American man, Spencer Overton, do you believe there is an effort to tap down the African-American vote?

  • 10:25:42

    OVERTONWell, certainly there is a racial tinge here. I mean, if you look at South Carolina, you remember one of the representatives working on the bill, he received an email that said, hey, those blacks and elderly folks can get an ID. If they were offered $100 to show ID, he said, "They'd be like a swarm of bees going after a watermelon." If you look at the YouTube video with Delores Freelan, there are 10 comments on the front page.

  • 10:26:08

    OVERTONOne of them says, "Sounds to me like I'm paying your welfare for you and your kids with all of those government IDs. Guess you can't vote for Obama to steal my money this year." End of quote. Now, regardless of the racial motive, the issue is these rules often have the effect of disproportionately excluding minorities, young folks, et cetera. Eleven percent of Americans lack photo ID, but studies suggest that up to 25 percent of African-Americans lack valid, state-issued voter ID.

  • 10:26:41

    REHMAll right. I want to now turn to the question of early voting. Rick Hasen, tell us how many states offer it and why that number is expanding.

  • 10:26:55

    HASENWell, I don't have the figures in front of me as to how many states offer it. But I do know that in this election, there are controversies about early voting in Ohio and Florida. The Ohio controversy has to do with the last three days of voting before the election. In 2008, Ohio expanded early voting to include those three days. And now, as in Florida, those three days have been taken away.

  • 10:27:22

    HASENJust a week ago, a federal district court ordered Ohio to restore those last three days on grounds that Ohio -- the Republican Ohio legislature took it away from everyone, except for military and overseas voters who might be in Ohio during the time. And the court said this created a disparity. That issue is being appealed to the Sixth Circuit. In a court in Washington, D.C., early voting is being restored to some of the counties, which are covered under Section 5 of the Voting Rights Act.

  • 10:27:54

    HASENThe reason this is so significant in terms of those last few days is that especially among African-American churches, there's a so-called souls to the polls program to bring people from Sunday services to go vote on early voting. And so Democrats allege that the reason for the cutbacks in early voting in this period is to, again, make it harder for Democrats to vote. Republicans have defended these provisions saying that, especially in the last few days before Election Day, election administrators need that time to be prepared for the bigger event of the actual Election Day.

  • 10:28:38

    REHMBruce Fein, are these two cases, Ohio, Florida, going to possibly be taken up by the Supreme Court prior to Nov. 6?

  • 10:28:52

    FEINWell, the Supreme Court very seldom interrupts its customary recess that antedates -- they return the first Monday in October. They have, in my lifetime, done it with Pentagon Papers in 1971. They came back to handle the Nixon tapes case in July of 1974. They've done it previously. I'm not that old when Harry Truman was there and they decided the Steel Seizure Case.

  • 10:29:17

    FEINBut I think that the impact here is insufficiently sweeping to justify the court intervening at this time, so close to election, where it's same day, I mean, early voting. It doesn't strike the American people, I think, as being such a betrayal of fundamental principles to justify the court sitting in a summer session.

  • 10:29:41

    REHMSpencer, you're very concerned about restrictions on early voting. Why?

  • 10:29:48

    OVERTONWell, essentially, it's important that we get everyone to the polls. And what's happened in 2008 is that this time was invaluable in terms of voter mobilization. And those last three days before the election in Ohio, there were 93,000 people who cast a ballot. And so especially in a closely contested election, you remember in Florida it was just over 500 votes in 2000. You know, 93,000 votes can really make a difference.

  • 10:30:21

    REHMJohn Fortier, you wrote a book about absentee and early voting. What do you conclude?

  • 10:30:30

    FORTIERWell, a few things. One, we've increased the number of people voting before Election Day dramatically in the last 30 years. It used to be just a small handful of absentee ballots: out of town, maybe too sick to vote, 5 percent or so. We have a third of Americans voting before Election Day either by mail or early voting centers in 2008. We're likely to see higher numbers this time. So it's a trend across the country.

  • 10:30:51

    FORTIERThe one thing that I think both sides buy into on this is that it's a great change in turnout. That was the hope of early voting and absentee voting, that if we just make it easier for people to vote, then more people would vote.

  • 10:31:01

    REHMSure. Sure.

  • 10:31:02

    FORTIERBut the evidence really is not there, that it tends to be the same number of people voting. They just vote at different times. They vote at their kitchen table with absentee ballots. They vote on a Tuesday rather than...

  • 10:31:11

    REHMNorth Carolina has already begun voting.

  • 10:31:14

    FORTIERAbsolutely. But the idea that more people will vote because you have them spread out over a period of time is not -- has not been shown true by political science research. We -- I'm actually for early voting: a short period, a week or 10 days beforehand. I think it should go up as close to Election Day as possible. But I think the idea that we're going to change the number of people who vote by taking away the Sunday is relatively small.

  • 10:31:37

    FORTIERAnd one more thing about the Sunday. You know, Sunday tends to be actually a pretty low-voting day. It's true that in Florida, African-Americans were a higher percentage of the vote on that Sunday. But that Sunday was a lot lower voting day than the Saturday, where many more African-Americans voted, or during the week before on early voting. So there are a lot of opportunities. I'd rather see it a week before and have those days, but I don't think that's going to affect turnout at all.

  • 10:31:59

    REHMBruce.

  • 10:31:59

    FEINI think the laws that encourage participation in politics are praiseworthy because of what it says about who we are as a people, irrespective of whether it affects actual turnout. It's a -- an earmark of our values. We think that public participation should be a duty, not simply a privilege. And even if there was no increase in turnout, it's the kind of message or cue that we want to send out may affect things in the future because that's how our political system operates.

  • 10:32:28

    REHMBruce Fein. And you're listening to "The Diane Rehm Show." Rick Hasen, there's one more voting battle out there, the so-called provisional ballots. What are those? And tell us what the problems are.

  • 10:32:46

    HASENWell, one of the things that Congress did in the wake of the 2000 Florida debacle is that it passed the Help America Vote Act. And that law, one of its provision says that if a person shows up at the polling place and for some reason there's a problem -- the person is not listed, the person doesn't appear to comply with whatever state law -- they must be offered a provisional ballot to be allowed to vote.

  • 10:33:13

    HASENWhether or not that provisional ballot will ultimately count is not dictated by federal law, but it's a matter of state law. Some states have many more provisional ballots than others, and Ohio is one of the states with a very high number of provisional ballots. Right now, there's a lawsuit, which is also pending before the 6th Circuit Court of Appeals.

  • 10:33:35

    HASENIn that lawsuit, the question is whether provisional ballots, which are cast by voters in the wrong place -- they show up at the wrong precinct, which might actually be just a different table in a gymnasium -- whether those ballots must be counted as a matter of federal constitutional law, as a matter of equal protection, if the reason they are at the wrong place is because the election officials have sent them to the wrong place.

  • 10:34:01

    HASENAnd so we have some evidence of problems. There was one problem which I describe in my book, "The Voting Wars," where a person was sent to the wrong table and vote -- the vote was not counted because the poll worker thought that the number 798 in an address was an odd number rather than an even number. The Ohio Supreme Court has said those ballots should not count if they're at the wrong precinct.

  • 10:34:23

    HASENA federal court disagreed, and now that issue is up at the 6th Circuit. And I should point out that in 2008, there were a number of election disputes that went to the 6th Circuit. The 6th Circuit divided bitterly, mostly along party lines. And so if there is a bitter dispute over either this case or over the early voting case, I guess I would disagree with Bruce Fein. And I do think that it is fairly likely that the Supreme Court would get involved and decide to do something about these cases.

  • 10:34:51

    FEINEven before the election in November?

  • 10:34:53

    HASENI do. It may be not a full oral argument, but it would be some kind of order.

  • 10:34:58

    REHMInteresting.

  • 10:34:59

    HASENAnd, in fact, they did do that in 2008 in a case coming out of Ohio involving the secretary of state's refusal to match the voter registration database with the Bureau of Motor Vehicles database.

  • 10:35:11

    REHMSpencer.

  • 10:35:12

    OVERTONYes. You know, we call this the right church, wrong pew problem in terms of the person being in the wrong precinct. And in 2008, there were about 14,000 provisional ballots...

  • 10:35:23

    REHMFourteen thousand.

  • 10:35:25

    OVERTON...yeah, that were allegedly discounted. And the question is, was it the voter that made the mistake? Was it the poll worker that made the mistake? And the question is, where should we put the burden? Should we put the burden on the poll worker or on the voter?

  • 10:35:38

    REHMWhat's your view, John Fortier?

  • 10:35:40

    FORTIERWell, I agree that there are some problems with provisional voting, but I think we should step back a bit. When we had the Help America Vote Act after Florida, one of the great things we found in studying the country was a lot of people were losing their votes. They were showing up and having these registration problems, and only a few states had these provisional ballots. One of the requirements of the act was that all states have them, so that many people today are actually casting votes that wouldn't have been able to cast votes under another system.

  • 10:36:06

    FORTIERNow, there is this category of ballots that are not counted, and there's a lot of dispute over them. Some of them are legitimately not counted: voters who really weren't registered or who had voted once before by absentee and forgot that they did. So there's definitely a category of voters that shouldn't count. But this question of if you're in the wrong place, maybe you get the wrong ballot. Congress didn't really decide this issue in the Help America Vote Act.

  • 10:36:27

    FORTIERThey allowed states to say, well, maybe we should just send you to your correct polling place, or maybe we should count your ballot. What if you're not getting the right local candidates 'cause you show up in one place and you cross state line? So there are some tricky questions. I definitely think the question of someone of the state sending you to the wrong place ultimately -- in this case that Rick mentions with the odd and even voters -- is about the most extreme.

  • 10:36:49

    FORTIERYou know, that should somehow -- down in favor of the voter. But, you know, the question of provisional ballots, they're messy. There's a lot of litigation. But the overall effect of what we've done has been allow a lot more people to vote by having them.

  • 10:37:01

    OVERTONI agree. This was an improvement in terms of voting, in terms of provisional ballots. But that doesn't mean we can't make it better.

  • 10:37:10

    REHMAnd, you know, right now there is a situation in the state of Maryland, where you have a congressional candidate who's had to drop out of the race because it was found she voted both in Maryland and in Florida. I mean, it just sort of highlights the craziness of the whole situation. We'll take a short break. We'll open the phones when we come back. I look forward to speaking with you.

  • 10:40:04

    REHMAs we talk about voter ID and other newly placed restrictions, let's go to the phones, first to Concord, Mich. Good morning, Leon.

  • 10:40:18

    LEONGood morning, Diane. I am in my 70s. I've grew up in Concord, and I've lived here for 68 years. A year ago, I went to a school board election. Every person at the poll knew who I was. And the official in charge says, Leon, do you have a state-issued picture ID? And I looked at her and said, I need a state-approved picture ID to prove who I am, and you've known me for more than 40 years? That's ridiculous. And I was offered a provisional ballot, but they can be challenged and tossed out anytime in the process.

  • 10:41:05

    REHMThis is ridiculous.

  • 10:41:07

    OVERTONWell, this is actually, though, one of the issues here, right, in a sense that if we do have a rule, is it going to be applied uniformly? There was a study done in New York which did not have an ID requirement, and Asian-Americans were disproportionately asked for an ID. And so uniformity of application is one of the problems. And, again, it comes from the fact that, you know, we might have 20,000 poll workers in a state like Ohio.

  • 10:41:39

    REHMAnd all of this has come to the fore since the 2000 election, is that fair to say?

  • 10:41:47

    FEINWell, I think the Supreme Court's intervention gave signals that these were litigable issues that hadn't been quite so clear earlier. So to push these into the court, I'm not sure that the problems weren't handled on an informal basis previously. And also, I think that, you know, that the observation, the event that's been described here reminds me of Paul -- the, you know, letter killeth and the spirit giveth life. You have to use you common sense, it seems to me.

  • 10:42:15

    FEINAnd here, there's no incentive for him to impersonate somebody, expose himself to a felony prosecution. He's known to everybody there. And this is something that comes from, I think, lack of professional training of those who man the ballot.

  • 10:42:29

    REHMAll right. To...

  • 10:42:30

    FORTIERIf I could just disagree a bit, I...

  • 10:42:31

    REHMSure, sure. OK.

  • 10:42:32

    FORTIER...you know, I think that there is an older paradigm that we walk into the polling place and we know our poll worker, and, really, studies show that that's not true today. It's, you know, 20 percent of people happen to know their poll worker, and many states just ask you to state your name and where you live. And in an anonymous world where people move around and don't know their poll workers, the idea that just because this person knew someone and the law said you needed this, I mean, if you want uniform application, you can't simply just wave some people in here embarrassed.

  • 10:42:59

    REHMBut go back to Bruce's point. What is the incentive for risking fraud and doing yourself in by going to the polls and pretending you're somebody else?

  • 10:43:16

    FORTIERI don't think it's the most efficient way to commit fraud or that there's extremely widespread amounts of this fraud, but I actually think it's not very easy to get caught doing this. The idea that it -- there's a punishment attached to it. When you show up at a polling place, there are no police there. People don't tend to know you to say somebody else's name. Also, there are cases -- it's not just you're impersonating someone else who's real. There are dead with names on the list. Sometimes there's a collusion with...

  • 10:43:40

    REHMBut how many? How many?

  • 10:43:42

    FORTIERWell, there are lots of dead with the names on the list.

  • 10:43:43

    REHMOK.

  • 10:43:43

    FORTIERNow, I don't think it's mostly because people move around in inefficiency, but there are millions of people who are on a list that shouldn't be in the wrong place. And there are millions of people who are not on lists who should be. We have a messy system that should be fixed at both ends.

  • 10:43:55

    FEINBut, John, I think you've neglected what is the incentive to commit the crime. Even if you think the likelihood of detection is small, do you think you're going to affect -- you're going to come and impersonate and cast a ballot illegally 'cause you're going to determine the outcome? Is that the mindset of the person who you think is doing this?

  • 10:44:09

    REHMAll right. I think you two are having a very debate that our next caller, Stan, is interested in. Go ahead, sir.

  • 10:44:21

    STANHi. Good morning, Diane. Thank you for taking my call.

  • 10:44:23

    REHMSure.

  • 10:44:24

    STANSo I have a question. Basically, if I have to show an ID to, say, cash a check or -- at a bank or have any other service rendered to me, adopt a pet from The Humane Society, why is it such a big deal for me to have to show who I am just as a matter of course, you know, during one of the most important things that I might do in my life as, you know, as a civil duty?

  • 10:44:58

    REHMSpencer.

  • 10:44:59

    OVERTONI think that this is a common question, and the caller makes a good point. The issue, though, is that a certain percentage of people may be excluded, and we want government of, by, and for the people. We want to hear from everyone. And that's what's different from -- in terms of voting, cashing a check, these other things. I also hear a lot about you needing an ID to get on a plane, and actually, you don't need an ID to get on a plane. There is bypass procedure if you don't have your photo ID.

  • 10:45:32

    OVERTONIf you look at many merchants, they do not require a photo ID to use their credit card, et cetera. Why? Because they know there are some sales that they won't be able to take if they require a photo ID. And so they say, under a certain amount, hey, you don't need a photo ID. They're interested in participation and engagement in more people.

  • 10:45:52

    REHMAll right. To...

  • 10:45:53

    HASENDiane.

  • 10:45:54

    REHMYes, sir.

  • 10:45:55

    HASENWe have a little bit of data about both the issue of fraud as well as the issue of people being turned away.

  • 10:46:04

    REHMGood.

  • 10:46:05

    HASENSo there was a recent study by a group called News21 which looked at all 50 states to try to see what the prevalence of election-related fraud is. And they found, you know, over -- this is since 2000. They found a number of absentee ballot fraud cases. I believe it was over 400 across the country. And we see those kinds of cases occasionally. They found election official -- election officials occasionally committing fraud. All of these are relatively small numbers but, again, somewhere in the hundreds of potential prosecutions.

  • 10:46:39

    HASENWhen to impersonation fraud, which is the major kind of fraud that a voter ID law would prevent, there are only 10 alleged cases which, I believe, lead to seven convictions across the country. And for my book, I could not find a single case in the last generation where impersonation fraud even remotely called into question the possibility of election results.

  • 10:47:01

    REHMSpencer.

  • 10:47:02

    OVERTONThe analogy I use here is it's like throwing the baby out because the baby has a drop of bath water on the baby's arm. Now, maybe you don't like the way the baby will vote, and maybe that's why you want to get rid of the baby. But it's like throwing out a baby because of a drop of bath water on the baby's arm.

  • 10:47:18

    REHMAll right. To Wolfeboro, N.H. Good morning, Jim.

  • 10:47:22

    JIMOh, thank you, Diane. I'm -- I am proposing to protest the law which was enacted by a Tea Party legislature elected in 2010. Though I have a voter ID, I'm not going to show it. My fear is that in November, I understand that then a provisional ballot will be made possible. I hope that would go through. But since we're a toss-up state, I'm concerned. I did want to point out that a policeman -- even though we're a very small community of 6,000 permanent residents, the police are always there every time I vote. So I just want to correct what...

  • 10:48:00

    REHMOK. I want to ask you, Jim...

  • 10:48:02

    JIMYes.

  • 10:48:03

    REHM...what do you hope to accomplish by refusing to show your ID? I realize you're not happy about the law.

  • 10:48:12

    JIMRight. I'm not sure what I will accomplish. I guess I just want to see how the process work since most of the poll workers know me and...

  • 10:48:21

    REHMBut do you want your vote to count?

  • 10:48:25

    JIMWell, exactly. I'm going to see how it goes today in the primary. It won't count particularly because my candidate won't win anyway. But I do want my vote to count, particularly in November. But I just want to see...

  • 10:48:39

    REHMDoes this make sense, Bruce?

  • 10:48:43

    FEINI think there's legitimacy in trying to call attention to what you think as a problem by a form, maybe quasi form of civil disobedience, if you will. And this is a dramatic way in which to make it a topic of discussion. And I do think that the callers who suggest that -- I think correctly, that's not an enormous burden customarily to have voter ID.

  • 10:49:05

    FEINThat's accurate. But it's also not really much of -- if you had even a small burden to go after a non-existent problem that curtails someone's liberty and ability to participate in the political process, I think this country stands for, we ought to welcome the participation as opposed to some tiny, conceivable, hypothetical problem that virtually never happens.

  • 10:49:25

    REHMSpencer.

  • 10:49:26

    OVERTONDiane, we're talking about barriers to the ballot, right? And I don't want to scare anyone away from the polls. People should not feel like, oh, there's too much trouble to go vote. You people need to get to the polls. Don't stay home. Voting rights lawyers are defending the right to vote. Courts have been rejecting a number of barriers to voting. And so people should really get out and go to the polls.

  • 10:49:48

    REHMRichard, did you want to add something?

  • 10:49:51

    HASENYeah. I think, you know, back to the question of data, how many people actually don't have the identification? As the caller said, your -- the caller just before this one said, you know, most people use an ID regularly to do all kinds of things. And it turns out -- and I think both your first caller and third caller, who are complaining about the ID commerce, sounds like they both have identification card. There are a small class of voters who lack ID.

  • 10:50:18

    HASENAnd I think that the Democrats are concerned, not only with those voters who generally cannot get the ID and are actually disenfranchised, but they're also concerned about more casual voters for whom putting even a small barrier in the way -- I forgot my ID -- maybe they're not going to go back to have that provisional ballot counted.

  • 10:50:37

    HASENIn a lot of states, if you don't have your ID, you have to go back to maybe the county seat to show your ID to have your ballot counted. Democrats are as concerned about those voters as they are about the ones who would literally be disenfranchised by a voter identification requirement.

  • 10:50:50

    FORTIERCan I note, though, in New Hampshire...

  • 10:50:51

    REHMSure.

  • 10:50:52

    FORTIER...it's not a photo ID. It's actually a non-photo ID. It's a broader set of IDs that you can show. And so, you know -- and there are, in many states bypasses, as Spencer mentioned, at the airport, that you can sign an affidavit. You can vote absentee and not require one. So I agree that the devil is in the details and we -- and states are required to give free IDs. But the devil is in the details.

  • 10:51:13

    REHMAnd the details become very diverse. And a question of why the courts have allowed this kind of diversity, I don't quite get it. Bruce.

  • 10:51:28

    FEINWell, the Constitution permits wide leeway in states crafting different policies on a whole host of issues. Now, I say that we've come to conclude, as a nation, certain things we're not going to permit the states to divert on. That's racial discrimination, gender discrimination, poll taxes. And I think that we ought to also get a consensus. We don't want laws passed when a significant motivation is to handicap a person because of their political affiliation.

  • 10:51:53

    FEINIt may well be that, in many cases, the motivation is a combination of a racial and a political one because some 90-plus percent of African-Americans vote for Obama. And so Republicans think, oh, if I press -- try to suppress the Democratic vote at the same time, it's pretty certain that that vote would likely go to Obama rather than otherwise.

  • 10:52:10

    REHMCould the Supreme Court settle this?

  • 10:52:13

    FEINNo, I don't think that they could settle the large issue in a decree. You would need a constitutional amendment, I think, or Congress enacting with a good record, a nationwide uniform standard for voting in all circumstances.

  • 10:52:24

    FEINBut I do think it's very important, especially at times where we're very divided as a nation that the franchise to be open as wide as sensible because you need legitimacy of the popular opinion with the outcome of decisions made by legislatures and otherwise and insofar as yours. Even a perception that the franchise has been unfairly curtailed, that reduces legitimacy. It makes for a more likely social strife.

  • 10:52:47

    REHMAnd you're listening to "The Diane Rehm Show." To Cleveland, Ohio. Good morning, James.

  • 10:52:54

    JAMESGood morning. And thank you for taking my call.

  • 10:52:56

    REHMSurely.

  • 10:52:57

    JAMESGreat show, Diane.

  • 10:52:57

    REHMThank you.

  • 10:52:58

    JAMESFirst of all, I was going to ask about the fraud. How do we, the people, check these allegations of fraud? 'Cause it sounded like somebody just basically answered this first question a few minutes ago, but I was going to follow it up. And then where can we go to corroborate 'cause I love to tell people, don't tell me what you think, tell me what you know. And where can we go corroborate it?

  • 10:53:19

    REHMRichard Hasen.

  • 10:53:21

    HASENWell, you can look at that study that News21 posted. They listed all of the allegations of voter fraud and all of the prosecutions over the last 11, 12 years, and you can look at it by state. And you can actually see, at least relatively speaking, where the problems are. The biggest problems turned out to be absentee ballot fraud through vote buying or through election officials taking ballots and manipulating them. And if we're really serious about combating the relatively small problem of fraud, I think that's where we would actually start.

  • 10:53:50

    FEINI also think, Diane, the question is an excellent one, which shows why legislature should have open hearings, exhaustive hearings. The right to vote is too precious to do on speculation. And so they need to hear from prosecutors, from people who've been involved in politics about what is the new incidence of fraud. Some cases may never get to court 'cause they're undetected or why.

  • 10:54:10

    FEINSo it's the most comprehensive record that you've got rather than state legislatures often times just passed these with four votes and there's no hearing or public input whatsoever.

  • 10:54:20

    REHMJohn Fortier.

  • 10:54:21

    FORTIERWell, I'm the advocate of voter ID on this panel. You know, I actually don't think it's the most important problem. And while I think Rick is right that not many people have been prosecuted for voter impersonation, it's not also easy -- very easy to detect. So I think there's the possibility of it going on. But if we did have to focus on one thing, then I think both sides really could agree on both in getting access and improving the integrity of the system. And that is our voter registration system.

  • 10:54:45

    FORTIERAnd there is some sense that maybe there's a compromise, maybe by government or others looking into voters more in advance, getting their requirements, whether they're citizens, whether they live where they live. On the record beforehand, that would be very helpful because today, people get on the list on a very haphazard way. They move. They're left on the lists. Many people don't get on the lists who, you know, many people would know that they're eligible because of -- they've already met the requirements.

  • 10:55:12

    FORTIERWe have a lousy voter registration system. It's spread across the states in different ways. But even in each state, too many people on it that shouldn't be and too many people not on it that should be.

  • 10:55:21

    REHMSpencer.

  • 10:55:22

    OVERTONYeah. If you look at other countries, they have modernized their voter registration system. We have not. And I would agree that it's something that we need do. If you look at it, it's about 80 million who didn't vote in the last election. Seventy percent of those folks weren't registered. There are so many problems that come from registration.

  • 10:55:39

    REHMAll right. Last quick question from Aisha (sp?) in Houston, Texas. Quickly, please.

  • 10:55:47

    AISHAHi. Good morning, Diane.

  • 10:55:48

    REHMMorning.

  • 10:55:49

    AISHAI need some clarification on the current status on the decision of the Texas voting law changes. I know that the three-judge panel rejected the proposed changes and our attorney, Greg Abbott, said he would appeal it. But as recently as yesterday, I thought that I heard that there was an injunction against that rejection by the court.

  • 10:56:13

    REHMRichard Hasen.

  • 10:56:14

    HASENYes. So the law is not in effect right now. Abbott has said he's going to appeal, but he also said that he's not going to do anything on an emergency basis before this election. So the new ID requirement will at least not be in effect for this election, and it'll be up to the Supreme Court to decide if that'll be put in place in the next election. And by then, as Bruce indicated, there's a reasonably a good chance that section five of the Voting Rights Act would be struck down, which will prevent this particular challenge to Texas' voter ID law.

  • 10:56:42

    REHMSo with eight weeks to go, we're still talking about all this. Let's hope that you vote in this year's election no matter who you are, and I'll hope that nobody stops you from going to the polls. Spencer Overton, Bruce Fein, John Fortier, Rick Hasen, thank you all so much.

  • 10:57:09

    HASENThank you.

  • 10:57:10

    FEINThank you, Diane.

  • 10:57:10

    REHMAnd thanks for listening, all. I'm Diane Rehm.

  • 10:57:14

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Susan Nabors, Megan Merritt, Lisa Dunn and Rebecca Kaufman. The engineer is Tobey Schreiner. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information.

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