Ahead of the 2012 presidential election, key states have adopted voter ID laws and other measures that could affect voter turnout. It's created a national controversy about who will be most affected.
According to the New York Times, 33 states now have laws requiring identification for voting, and five require specific kinds of photo IDs to vote.
On Wednesday, a Pennsylvania judge upheld that state's new voter ID law, despite a challenge from plaintiffs who said it would disenfranchise many poor, minority and elderly voters. Wednesday's decision is expected to be appealed to the state's Supreme Court.
Pennsylvania Republican state Rep. Daryl Metcalfe, who was instrumental in passing the law, tells Fresh Air's Dave Davies that it provides safeguards against voter fraud. He says without a photo ID in place, "there's fictitious voter registrations that have been filed, which result in fictitious individuals being on the voter rolls, which then anybody can vote as that fictitious individual. And you have illegal aliens that are voting, or foreign nationals that are here legally that may be voting that can be prevented through this."
Nate Persily, a professor of law and political science at Columbia Law School whose research and writing focuses on voting and election law, calls the fraud claims overblown. But he added: "I tend to think that the effects of these [voter ID] laws will not be as great as the critics think or that the proponents hope for."
On Pennsylvania partisan politics
Daryl Metcalfe: "The majority of Democrats that are trying to stop voter photo ID don't want to see the fraud stopped. ...
"All of the opposition from the NAACP, the ACLU, all the Democrats that voted against this and the House and Senate in Pennsylvania, they are trying to protect status quo. I believe they are trying to protect the fraud that they know they have happen at the polls that allows some of them to win."
On voter fraud identification
Metcalfe: "We've had absentee ballot fraud committed here in Butler County back in 1999 that ended up getting prosecuted. The individual that got prosecuted ended up getting a [wrist slap] instead of being hammered about it, as they should have been. ...
"This whole focus on how much fraud's occurring, and what kind of fraud are you stopping — you really can't identify the fraud without having a check-and-balance in the first place, so to identify how much impersonation is going on, we need some process in place where we could actually identify it."
On protecting voters' rights
Metcalfe: "We have millions of people voting here ... and across this country. Those millions of legal voters deserve to have their votes protected. Every legally cast vote should be protected from being undermined by the forces of corruption, and individuals have a responsibility under the new law to secure the ID they will need, and whether somebody's cashing a check, or whether they're getting prescription cough medicine."
On securing IDs ahead of the election
Metcalfe: "People need photo ID to function within our economy, and we've left ample time passing this law early in the year — not requiring it until November. We've left ample time for every citizen that didn't have ID to secure the documents they would need to get that ID."
On whether the laws will affect poor and minorities
Nate Persily: "We don't know for sure whether that's going to be true. It's true if you look at the non-ID population that [it] is overrepresented among racial minorities, and that has been shown in Texas and Pennsylvania and elsewhere. But again, some of those people would not have voted anyway, so it's difficult empirically to say what share of the likely voter population would not vote as a result of a voter ID law.
"Nevertheless, if what we're trying to answer is whether this law has a disparate impact in that it's going to maybe deter minority voters at a greater rate than nonminority voters, then yes, I think you can see that effect. The partisan effects, it's really hard to figure out. In Indiana, they had a voter ID law in effect when Barack Obama won that state in the 2008 election and black turnout actually went up. Of course, the fact that black turnout went up had a lot to do with him being on the ballot, so maybe if there hadn't been a voter ID law, then we would have had a greater number of African-Americans that were turning out in that race anyway, but it's very difficult to say exactly what the partisan and racial disparate impact is going to be."
On how voting has changed
Persily: "In the last election, about a quarter of Americans cast their votes early or absentee. And so we are slowly moving to an electoral system, which is very different than the way we conceive it in our civics textbooks, where we have this celebratory day on a Tuesday where everybody votes at once. Instead, we've been having elections that last for about a month before the election and then culminate on Election Day. So it's likely that roughly a third or more of Americans will cast their votes early or absentee this time. And soon, in the next five to 10 years, we may be talking about a majority of Americans casting their votes by mail, early or absentee."
On a nonpartisan civil voting process
Persily: "Most countries in the world have figured a way around this problem. We haven't. The people who are in charge of our elections are either elected or appointed by someone who's elected, and so we have not developed a systematic way to insulate these people from partisan pressures. Different states are better or worse in their propensity to have partisanship creep into the process, but I wouldn't say it has to do with the institutions they've chosen, a lot of it has to do with the culture of the places that do this. ...
"We see it throughout election administration and these rules: It's either incumbent driven or partisan driven, and so it's very difficult to get the politicians out of it. Usually I think the best systems are ones where both parties are able to look over the shoulders of others, so that you can at least have monitoring by the ins and outs at the same time and I think that is most healthy way to probably proceed."
DAVE DAVIES, HOST:
This is FRESH AIR. I'm Dave Davies, in for Terry Gross, who's off this week. As the 2012 election approaches, voter ID laws and other measures which could affect turnout, have been adopted in key states and created controversy. According to the New York Times, 33 states now have laws requiring identification for voting, and five require specific kinds of photo IDs to vote.
One of those states is Pennsylvania, where a law adopted earlier this year is under a legal challenge from plaintiffs who say it will disenfranchise many poor, minority and elderly voters. A judge today denied the plaintiffs' motion to block implementation of that law. The battle now goes to the State Supreme Court.
In general, the new voting laws have been adopted by Republican lawmakers and fervently opposed by Democrats. We're devoting most of today's show to the battle over voting rules in the coming election, and in a few moments we'll speak with Columbia Law School Professor Nate Persily, who specializes in voting and election law.
But first we meet the prime sponsor of Pennsylvania's controversial voter ID law. Daryl Metcalfe is a Republican state legislator from Butler County in western Pennsylvania. He's a 14-year member of the legislature and one of its most outspoken and conservative members. He spoke to us from Harrisburg.
Representative Metcalfe, welcome to FRESH AIR. Why does Pennsylvania need to require voters to show ID at polling places, do you think?
STATE REPRESENTATIVE DARYL METCALFE: Well let's just say a common-sense policy that I've been working on for about a decade now, trying to get it in place, and we were finally successful in passing it and having the governor sign it into law. We had worked on it about 10 years back, when my legislation was ultimately watered down and just - we just started requiring ID the first time that someone voted.
But I believe it's very important, as Jimmy Carter and James Baker III had identified in their commission they had worked in a very bipartisan way, that for the electorate to have confidence in the election process, then when someone shows up to vote, they ought to actually show that they are who they claim to be.
DAVIES: OK. Now, I want to talk a little bit about kind of the particular kinds of fraud that might be at issue here. But first I want to ask you, you know, people who have studied elections say that, you know, there's a tension and a balance to be struck between access to the ballot and the security of the ballot. You want to make elections secure and honest, but you also want to let as many people - all legitimately qualified people vote.
Do you think that when the law is implemented, that there will be any impact in terms of some legally qualified voters not being able to cast ballots?
METCALFE: No. I think the U.S. Supreme Court identified on the same side as I did, as I am, in the court case involving the Indiana voter ID law. I think that there is a responsibility involved with exercising any right. When you exercise your right to bear arms, you certainly have a responsibility in doing that in the right way. When I go get a carry permit in the state of Pennsylvania to carry a firearm concealed, I have to show photo ID to exercise that right.
I think it's a responsibility that's not too great a burden to ask, just as the U.S. Supreme Court identified that it was not too great a burden to ask a citizen to actually have identification when they show up to cast their vote.
DAVIES: Right, but there have been a lot of stories in the media, and there are the plaintiffs and the legal challenge here. Older folks who don't drive, who may not have photo ID - there was a story of a 70-year-old woman from Scranton, Pennsylvania who'd had a long career in teaching and horse breeding, but because she didn't have a driver's license, and because she had been divorced, her name was different from her birth certificate, and the State Department of Transportation simply told her she couldn't get one until a reporter called.
I mean, are there not cases in which elderly folks or some others simply may not have the ID, even though they would be otherwise legally eligible to vote?
METCALFE: No, I don't believe so. I think a lot of these cases are being drummed up just to try and make it sound like there's, you know, Sad Sack stories out there. We have millions of people voting here in Pennsylvania and across this country. Those millions of legal voters deserve to have their votes protected. Every legally cast vote should be protected from being undermined by the forces of corruption.
And individuals have a responsibility under the new law to secure the ID they will need, and whether somebody's cashing a check, or whether they're getting prescription medicine or cough syrup - you know, I was just recently traveling up to New York, and I got sick during the trip, and I had to go to the store and get some cough medicine, and I had to show photo ID. And if I wouldn't have had photo ID, I wouldn't have been able to make the purchase.
People need photo ID to function within our economy, and we've left ample time, passing this law early in the year, not requiring it until November, we've left ample time for every citizen that didn't have ID to secure the documents they would need to get that ID.
DAVIES: Now, Representative, whether or not the law is constitutionally enacted is one question, whether it's good policy is another. And I'm interested in your view on what kind of voter fraud would be prevented by somebody - by requiring ID. Doesn't - aren't we talking about a situation where someone walks in and impersonates someone else? They would have to know that there's a registered voter there on that - at that precinct, that the registered voter isn't going to show up, that the polling people won't know them.
I mean, do you think this is actually happening, people coming in and impersonating people to cast votes?
METCALFE: Yes. Yeah, actually, State Representative Bernie O'Neill serves in the Pennsylvania House of Representatives, and during our debate on the floor, he testified to the body that he went to vote as an elected official even, and when he showed up to vote, somebody had already voted in his place and signed on his line and signed his name in there. So yes, it happens.
I mean, there's impersonation that occurs, there's fictitious voter registrations that have been filed, which result in fictitious individuals being on the voter rolls, which then anybody can vote as that fictitious individual if you don't have a photo voter ID in place to actually stop it. And you have illegal aliens that are voting or foreign nationals that are here legally that may be voting.
The burden is not on the legislature to prove that this type of voter fraud occurs, because whether there's - it's occurring now or not, we don't have a system in place to actually identify it. So you really can't tell how much impersonation is occurring if you don't have a checks and balance in place to actually identify it in the first place.
And even more importantly, the legislature has a responsibility to ensure that the elections have integrity, that the process has integrity, that the electorate can have confidence that their vote is being cast and that they are not being undermined by illegally cast votes.
DAVIES: OK, Representative, I just - I'm sorry to interrupt. I did want to ask you about this, and this is a document I'm sure you're aware of that was filed by the Commonwealth defending the voter ID law in the current litigation over the Pennsylvania law. And the Commonwealth attorneys acknowledge there have been no investigations or prosecution of in-person voter fraud in Pennsylvania, that they don't have knowledge of any such investigations. They offered no evidence that in-person voter fraud has in fact occurred.
METCALFE: Well, you know what? It's not my responsibility to actually identify an attorney that is knowledgeable. You know, it's not my fault that the attorney for the state is ignorant. We have cases, we have the 1998 case where the state senator's election was overturned. We have - or 1993, rather. We have 1998 prosecution of a congressman for election fraud. We have, you know...
DAVIES: Well, if I can - I'm sorry to interrupt, Representative, but the 1993 case I'm very familiar with. I covered that as a reporter in Philadelphia. That involved absentee voter fraud. It led to changes in the way...
METCALFE: In which this new photo voter ID law has within it changes in our absentee ballot process also to try and stop the fraud, requiring people to provide more information or photo ID when they're actually getting an absentee ballot requested, sent to their home also.
DAVIES: Indeed it does, but...
METCALFE: So this law goes further than just photo ID at the polls, but it's also going to require photo ID for absentee ballots if they're not able to provide their driver's license number, last four of their Social Security number.
DAVIES: Right, but I just wanted to make the point that in that case, in that 1992 state Senate election...
DAVIES: Well, I think the election was in '92, I think. Or maybe it was a special election in '93 perhaps...
METCALFE: Special election.
DAVIES: You're right, very good. In the case of that 1993 election, the kinds of fraud that occurred was already addressed when they changed the rules by which absentee ballot applications and the ballot themselves could be transported. Before that, they could be...
METCALFE: Well, I think it most certainly hasn't been addressed, just based on the most recent commissioner's report from Philadelphia, with all the problems they just had in this year's primary at the polling place. And we've had absentee ballot fraud committed here in Butler County back in 1999 that ended up getting prosecuted, that the individuals that got prosecuted ended up getting a slap on the wrist instead of really hammered about it, as they should have been. But that's another situation we have to try and rectify with the courts.
DAVIES: Representative, yeah...
METCALFE: But once again, this whole focus on, well, how much fraud is occurring, what kind of fraud are you stopping, you really can't identify the fraud without having a checks and balance in place in the first place. So, you know, to identify how much impersonation is going on, you would need to have some process in place where you could actually identify it, and we don't. We didn't have photo voter ID until now.
DAVIES: All right, I do want to move on, but I just wanted to say, you mentioned a commissioner's report about the Philadelphia 2012 primary. I've read that report carefully. I've spoken extensively with its author. And in fact, it - there's a tiny handful of cases.
METCALFE: As I said, one illegally cast vote is one too many. And you can undo an election with one vote.
DAVIES: Representative, before I let you go, I do have to address this one question. A lot has been made of a videotaped comment by Mike Turzai. You know him well. He's the state House majority leader in Pennsylvania. When speaking at a Republican state committee meeting, he was talking about legislative accomplishments, and he said, you know, voter ID, which will allow Governor Romney to win Pennsylvania, has been enacted.
And people have looked at that and said this - that there is a partisan motive here. Republicans think when this is done, it will help them because fewer Democrats will get to the polls. What about that?
METCALFE: Well, I think there's partisan motive to the opposition. I think that's because the majority of Democrats that are trying to stop voter photo ID don't want to see the fraud stopped. I think Mike Turzai's comments were in the context of if we stop the fraud, then a Republican in a Democrat-leaning state can still have an opportunity to win.
But we know from the Obama administration's quick review of our law, what the Department of Justice is now doing, trying to claim that they're investigating our law when it's based on the model legislation in Indiana that was held up to be constitutional by the U.S. Supreme Court, you know, all of the opposition, from the NAACP, the ACLU, all the Democrats that voted against this in the House and the Senate in Pennsylvania, they are trying to protect status quo.
I believe they're trying to protect the fraud that they know they have happen at the polls that allow some of them to win.
DAVIES: You think Democrats are perpetrating widespread fraud at the polls?
METCALFE: I believe that Democrats are perpetrating fraud at the polls, and I believe that they know that by allowing status quo, by not requiring photo voter ID, that yes, Democrats have a better chance to win because they have a better chance to corrupt the process.
I think that's where the attention should be changed. I mean, everybody's focused on Mike Turzai's comments about, yeah, Mitt Romney can win because of voter photo ID. Well, you know, why shouldn't everybody want a level playing field? Jimmy Carter did. Why are all these other Democrats afraid to actually allow us to have a process in place that identifies that somebody is who they claim to be when they show up to vote other than they're protecting status quo, they're protecting the fraud that's been perpetrated, and they want to ensure that the fraud can continue by groups like ACORN and others that support their left-leaning policies.
DAVIES: You're right that Turzai didn't say it's going to give us the election. His point was when you allow an honest election, then we have a chance to win. I grant you that. But what evidence can you offer that Democrats are stealing elections in Pennsylvania? I mean, this is a pretty serious accusation.
METCALFE: What I've just said is that by them defending the status quo, they're defending the ability to corrupt the process, and the process has been corrupted. And why else would somebody defend allowing the process to be corrupted unless they were benefitting from it?
DAVIES: Well, I think what they say is there are plenty of people who may not have photo ID but who are elderly or poor and who are known by their poll workers to live in the community and have been allowed to vote for years and years.
METCALFE: Yeah, and that's their argument, but it's nonsense.
DAVIES: You know, you've heard people call this a new poll tax, and the logic is that while the voter ID issued by the Department of Transportation might be free, the documents that they need to get that ID aren't, I mean that there's expense and effort involved in that, that that impacts poor people more. What do you say?
METCALFE: I would say that this - that all these arguments don't carry any weight, that they were all made already against the Indiana law, that it's not too great a burden to expect somebody to have to have photo ID, and that to help them with that effort, we have provided, free of charge, a photo ID.
Now, they certainly might have to have other accompanying documentation, but they may need that documentation for other areas of their life also. They most likely do. So it's a responsibility that individuals need to grab hold of in the process of trying to get hold of the photo ID that they're going to need now under the law.
This has been argued before the U.S. Supreme Court. The U.S. Supreme Court's on the side of the people of the United States of America. The majority of the people want voters to use photo ID when they go to vote. The U.S. Supreme Court has said that it's a burden that isn't too great a burden for a citizen to comply with, and citizens just need to embrace that new responsibility and show up with their voter photo ID and do what they need to do these months before the election to secure it.
DAVIES: Representative Metcalfe, thank you so much for speaking with us.
METCALFE: Thanks, have a good day.
DAVIES: Daryl Metcalfe is a Republican state legislator from Pennsylvania and prime sponsor of the state's voter ID law, which was upheld in a court ruling today. Coming up, we'll hear from a national expert on voting and elections. This is FRESH AIR.
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DAVIES: We're spending most of today's show on the national controversy over voter ID laws and other measures enacted in states, which could affect turnout in the 2012 election. The measures have been enacted almost entirely by Republican lawmakers and governors, who say they're needed to prevent voter fraud. And they're opposed by Democrats, who argue they'll disenfranchise many poor and minority voters.
Out next guest is Nate Persily. He's the Charles Keller Beekman Professor of Law and Political Science at Columbia University. His research and writing focuses on voting and election law. Persily told me that the push for voter ID legislation gained momentum after fictitious names were discovered on voter registration applications gathered by the group ACORN, which Republicans said showed widespread fraud and election tampering by Democratic supporters. We recorded our interview yesterday.
What if anything did the ACORN controversy prove about the vulnerability of the election system to tampering?
NATE PERSILY: The ACORN controversy focused on voter registration fraud, which is very different than election fraud. And so as is often the case when you outsource the registration of voters to third-party groups, you get people who are paid, say, by the name - the number of names they bring in.
And so then we had examples of someone putting down the full list of the Dallas Cowboys, people registering Mickey Mouse and Donald Duck. But of course these are not going to be people who show up on election day. But it got a lot of press, and so then it was seen as, in the 2008 election, it was called sort of a big indicator of election fraud.
But from voter registration fraud, it takes a pretty big leap to then talk about voter impersonation fraud, which is the kind of fraud that is prevented by a voter ID law. And voter impersonation fraud is where someone shows up at the polling place trying to be someone else.
DAVIES: Right, and just to complete this thought, when someone registers a phony name on a voter registration application, I mean you can put anything, is there any evidence that this resulted in fraudulent actual registrations, that is to say names on voter registration rolls for nonexistent people?
PERSILY: Well, there are names on voter registration rolls for nonexistent people, but they don't vote. And more to the point, there are huge inaccuracies in the voting rolls. There are people who move, there are people who die, there are all kinds of false names that are on the voter registration rolls. We don't do what most countries do, which is to sort of leave the burden of registration with the government. Instead, we outsource it to the parties, outside groups and then also to individuals on their own initiative to register to vote.
As a result, it's not uncommon to see 10 percent of the names on a voter registration list be for people who could not vote in that jurisdiction legally, but they don't show up to vote if they are, you know, obviously dead or Mickey Mouse or names that were incorrectly put on by someone who was just gathering names.
DAVIES: OK, so let's talk about the kind of voter fraud that a voter ID law would be aimed at preventing. If there are names on voter rolls for nonexistent people, and they're reasonable-sounding names - John Simpson, whatever - could someone walk in and say I'm John Simpson, and if there's no voter ID requirement, cast a ballot? Does this happen?
PERSILY: Yes, it happens. But the size of the problem is, as I've described it, passing a voter ID law in order to get at that scale of a problem is like killing a fly with a bazooka. There's a lot of collateral damage and that the - it is true that we will have non-citizens voting, we will have ineligible felons that will vote, we will have people who will vote sometimes in the name of another. But we're talking about isolated instances.
And the reason is, if you're trying to throw an election, if you're trying to rig an election, voter impersonation fraud is an extremely inefficient way to do so. And that's because in order to actually get enough people to affect the outcome, you'd have to have hordes of people going from one polling place to the next, impersonating voters. And that's a risky legal maneuver to play, and more importantly, there are better ways to rig an election.
And the area where we do see fraud in American elections, from looking at, say, prosecutions, is absentee ballot fraud. When you take the - sort of the act of voting outside of public view and outside the polling place, that's where we actually see fraud. And these voter ID laws do nothing to combat that kind of fraud. If anything, many of the voter ID states have actually shifted a lot of these voters into the absentee ballot pool, where they're going to be more susceptible to fraud.
DAVIES: Just to be clear about this, is there any empirical data on how common voter impersonation is?
PERSILY: It is very rare. We're talking about, you know, hundreds of times in an election, but we're not talking about, you know, hundreds of thousands.
DAVIES: We're talking about hundreds in...
PERSILY: In the country.
DAVIES: Out of tens of millions.
PERSILY: Right, and so, you know, it happens, just as I said, like all kinds of other things that happen that lead to disorganization on election day.
DAVIES: Nate Persily is a professor of law and political science at Columbia University. His research and writing focuses on voting and election law. He'll be back in the second half of the show. I'm Dave Davies, and this is FRESH AIR.
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DAVIES: This is FRESH AIR. I'm Dave Davies in for Terry Gross, who is off this week.
We're spending most of today's show on the controversy over voter ID laws and other measures enacted in states which could affect turnout in the 2012 election. The measures have been enacted almost entirely by Republicans, who say they will prevent vote tampering and fraud, and they're opposed by Democrats who argue they will disenfranchise many poor and minority voters.
We're speaking with Columbia University law and political science professor Nate Persily, whose research focuses on voting and election law.
Now, what about the simple point made by advocates of these laws that everybody needs an ID for everything these days? You're asked for IDs at airports, to get into office buildings, to, you know, to make a bank withdrawal, that it's just it's fairly common and in fact common in other countries to ask for an ID when you vote.
PERSILY: That's true. Just to correct the record on one thing, which is that you do not actually need a photo ID in order to get on an airplane, which is the most ubiquitous example that's used. If you don't have your photo ID, you're simply subject to greater screening in order to get on an airplane. But it's certainly the case that, you know, having an ID is part of life and that it is true if you look at the Washington Post-ABC poll from last week, 75 percent of Americans support photo ID laws. And as you said, it is true that almost every country in the world requires a photo ID in order to vote. All of those countries, however, produce a national ID card. We don't have a national ID card in the U.S. We rely, again, on individuals to get these IDs, usually from the Department of Motor Vehicles or maybe through, say, a passport. And so it is true that it is popular, it is also not brain surgery or rocket science to get these. But we know that there are specific biases as to who has and who doesn't have ID and for some people it is going to be very difficult - people who don't have a birth certificate and people who have difficulty getting to the areas where they would need to get the government issued photo ID.
DAVIES: You mentioned that absentee ballots are a better way to steal votes than impersonating voters going into a polling place. Why?
PERSILY: Well, you can do fraud at the wholesale instead of the retail level this way. And what that means is a group of political operatives can go into, say, a nursing home, fill out all the absentee ballots for the people there and mail them in. And we have substantial numbers of examples of that, even in New York where I'm calling you from. We have sort of throughout history, if you look at the places where we've had prosecutions for fraud, and there is currently one underway in Massachusetts, it's almost always because of absentee ballot fraud. It's more efficient. You can get more votes cast if you do it that way and you are less subject to scrutiny because the people who would see you in the polling place can't see you do it out of public view when you're doing at your home. You could also coerce voters more easily with absentee ballots than you can in the polling place, when everybody would see what you're doing.
DAVIES: Now, one of the things that the critics of the voter ID laws have said is that there is clearly a disparate impact, that it impacts the poor and minorities disproportionately, and of course that means that's more likely to affect Democratic turnout. Are they right?
PERSILY: Well, we don't know for sure whether that's going to be true. It is true if you look at the non-ID population that it is overrepresented among racial minorities - and that's been shown in Texas and Pennsylvania and elsewhere. But again, some of those people would not have voted anyway and so it's difficult empirically to say what share of the likely voter population would not vote as a result of a voter ID law. Nevertheless, if what we are trying to answer is whether this law has a disparate impact in that it's going to maybe deter minority voters at a greater rate than say non-minority voters, then yes, I think that you can see that effect.
The partisan effects, it's really hard to figure out. In Indiana, they had a voter ID law in effect when Barack Obama won that state in the 2008 election and black turnout actually went up. It's, you know - of course the fact that black turnout went up had a lot to do with him being on the ballot, and so maybe if there hadn't been a voter ID law, that we would've had a greater number of African-Americans that were turning out in that race anyway. But it's very difficult to say ex-ante what the partisan and racial disparate impact is going to be.
DAVIES: Right. If we can't determine a partisan impact of the law, we can certainly see partisan differences in origin and support, can't we? I mean this, these laws are being enacted by Republicans and opposed by Democrats pretty much uniformly, right?
PERSILY: That's right. The only state that's enacted a more restrictive law that's a Democratic state is Rhode Island. But even that law, which is a photo ID law, allows for sort of an escape hatch for voters who don't have photo ID on the day of the election; they can simply sign an affidavit saying they are who they say they are.
DAVIES: Now, the Supreme Court took on this issue in 2008, I believe, right? They looked at the Indiana law, found it constitutional. What questions did that answer definitively? What questions does it leave unanswered?
PERSILY: The case, Crawford vs. Marion County, that the Supreme Court decided - and it was a 6-3 decision - upheld voter ID laws on their face. Meaning that they do not violate the constitutionally guaranteed right to vote found in the 14th Amendment's Equal Protection Clause. And what I mean by that is that voter ID laws are not per se unconstitutional. They are not by themselves subject to sort of heightened scrutiny, that you have to sort of justify every disenfranchised individual as a result of a voter ID law. Instead, what the court said is you can bring as applied challenges. And so if you can find a group of people who are particularly affected by these ID laws, that those folks could have their own lawsuit that they could bring. And if it is the case that these laws are motivated by discriminatory intent - for example, trying to deprive African-Americans and Hispanics of the right to vote - then they are subject to the same kind of constitutional restrictions as other laws that might be racially motivated. But on their face, just because a state passes a photo ID law, does not make it unconstitutional.
DAVIES: All right. And the cases that have been brought challenging them, the one in Pennsylvania is a case in the state court, right?
PERSILY: That's right. And there are several state court challenges in different states. Wisconsin has state and federal challenges. We have cases brought under the Voting Rights Act, both Section 5, which applies to most of the states in the South, and potentially under Section 2 of the Voting Rights Act, which applies nationwide, and those cases are focusing on the racially disparate impact. And so a lot of these laws which were passed over the last three or four years are now being held up in court, in one court or another, and may not be enforced for the 2012 election.
DAVIES: We're speaking with Nate Persily. He's a professor of law and political science at Columbia University. We'll talk some more after a break.
This is FRESH AIR.
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DAVIES: If you're just joining us, our guest is Nate Persily. He's a professor of law and political science at Columbia University. He studies voting and election law across the country.
Now, we've see a lot of changes in recent years in voting law which is aimed at expanding opportunities to vote. You want to just describe some of the ways voting has changed?
PERSILY: Well, in the last election about a quarter of Americans cast their votes early or absentee. And so we are slowly moving to an electoral system which is very different than the way we sort of conceive it in our civics textbooks, where we have this sort of celebratory day on a Tuesday where everybody votes at once. Instead, we've been having elections that last for about a month before the election, then culminate on Election Day. And so it's likely that roughly a third or more of Americans will cast their votes early or absentee this time. And soon, you know, in the next five to 10 years, we may be talking about a majority of Americans casting their votes by mail, or early or absentee.
And what states have done this time around is many of them have constricted the early voting period. And so we saw in the 2008 election how many people in Florida, for example, took advantage of the early voting period, where they could go to a polling place, which was open for two weeks prior to Election Day, and that had the advantage of not forcing people to choose between, say, working on a Tuesday and turning out to vote. And different groups of people were voting early than maybe turned out on Election Day, and what these states have done is constricted the number of days that the early voting period is open for.
DAVIES: Do you see any disadvantage in allowing people to vote, I don't know, two or three weeks earlier? I mean, you know, the idea that the election is, you know, sampling the nation's preference on Election Day?
PERSILY: Well, there is a concern that some event may happen between the time one casts a ballot and the day of the elections so that one's preferences might have changed, but that's also - that's going to be true with the absentee ballot pool as well. But I think that that's one concern. There's also concern about monitoring these election polling places, these early election, early voting polling places, so the campaigns sometimes complain about early voting because it requires for them to have sort of poll workers looking - or people from the campaign looking over the shoulders of poll workers for the two weeks prior to Election Day, which is the most resource intensive, important time of a campaign, and now a lot of them are being sort of outsourced to look over the shoulders of poll workers.
DAVIES: Now, as with the case with the voter ID laws, we see a clear partisan divide in these attempts to restrict early voting or absentee voting, don't we?
PERSILY: Yes, we do. So you see about, I think about five states who have passed restrictions on early voting - Florida, Georgia, Tennessee, West Virginia, Ohio, I think - and those states have constricted the early voting period or otherwise regulated absentee ballots in a particular way.
DAVIES: In Ohio you actually see some counties in which it's more restricted than others and it appears that because of the way local election boards and the way the state government is set up, the heavily Democratic areas are finding restricted early voting hours, some of the Republican ones not so.
PERSILY: Well, we'll wait and see what happens on Election Day with those. We have lawsuits, as is always the case, filed in a lot of these areas. Florida's law has not been given permission because they are under Section 5 of the Voting Rights Act. We have lawsuits that the Obama campaign team has brought in Ohio. And as we were discussing earlier, the - you know, one of the challenges is when you have disparate or different enforcement of these laws between counties you run into the same criticisms that we ran into in Bush vs. Gore in the 2000 election, where we have punch card ballots in some areas and we had optical scan technology in others for counting votes. If it turns out that, you know, your absentee ballot has a greater chance of being counted in one county than another, that poses a constitutional problem.
DAVIES: You know, so many of our rules about voting are debated on, you know, merits of ballot security and access, but the rules are actually made by partisans, by elected officials who are active Republicans or Democrats in state legislatures and governors' chairs, and also in county election boards, which are often elective. And it just raises questions about the motives of some of these moves. And I'm wondering, if we made you king for a day, what's one change you would make in the way we vote?
PERSILY: Well, I would have national rules of ballot design, voter registration and eligible. Now, that is - truly only if I were king could I do that, because that's not something that either this Congress and president would be willing to put into effect or that maybe even the courts would allow. But the - you know, the big problem in the United States is our decentralization of election authority. And if we had a single ballot for federal races and single rules of eligibility for federal races, and for that matter access requirements, whether it's voter ID or something else, then I think it would go a long way toward solving a lot of these problems. As I said, most countries in the world do that. They don't have the level of decentralization and they don't have novices, untrained volunteers, being the ones, being the point of contact for the democracy. And we have sort of the perfect storm of election dysfunction in the U.S., where we have relatively untrained people who are working the polling places, as much as they're doing the yeoman's work for our democracy and we should thank them, they're still relatively untrained. We have partisans in charge of the operation of democracy, usually at the state and also at the county level, and then we have huge decentralization which then leads to the quality of democracy really varying on the basis of where you live. And those three factors are never in combination in any other country, but we have all three here in the U.S.
DAVIES: Somehow we get it right most of the time, don't we?
PERSILY: Well, that's because most of our elections are never close.
And so that is what's known as the election administrator's prayer, which is, God, whatever happens, please do not let it be close. Because once it's close, then every problem in the democracy comes out, and we saw that in 2000 and we've seen that in recounts in things like Minnesota with their Senate recount. So we focused, for example, on punch card ballots in the 2000 presidential election. But what the close look at the ballots there revealed was not only did they have problems with the election technology, they had problems with the way the ballots were designed, they had problems with the absentee ballot pool, both how it was - the provision of absentee ballots as well as how they were counted. They had problems with the voter registration list where people - there was an over-inclusive felon list so that people who had names who matched people who were on the felon list were also prevented from voting.
So there were all kinds of problems that came out there, but you only see those problems when you do an autopsy on an election during a recount. And we don't usually see them because most of the time elections are won going away because, you know, most of the parts of the U.S. are not competitive between the Democrats and the Republicans.
DAVIES: You know, you're here because you're independent. You look at evidence. You don't have any partisan connections. But a lot of people look at the fact that the voter I.D. laws and the attempts to restrict expanded voting opportunities are being enacted by Republican law makers, opposed by Democrats. Is it going too far to say that this is a campaign by Republicans to depress Democratic turnout in 2012?
PERSILY: Well, I think that a lot of Republicans and Democrats believe this, in that they look at this as movement for voter I.D. laws and ask the question, well, why has it happened now? There's been no increase in the number of voter impersonation fraud cases in recent years, so what is really behind this?
And I think that the partisan valance of these voter I.D. laws occurs both because Republicans see it as helping them, and John Fund, who is one of the sort of progenitors of this movement, had written for the Wall Street Journal, admitted this past week that it is not surprising that Republicans would want to have voter I.D. laws.
And the head of the GOP in Pennsylvania said, exactly, that the voter I.D. law will help the Republicans win there. And Democrats as well, you know, look at this and say this is an attempt to inhibit Democratic participation. I tend to think that the effects of these laws will not be as great as the critics think, or that the proponents hope for.
And while I do think there is partisan motivation behind these laws, as is unfortunately true with all election laws that are being passed these days, that it probably will not have the partisan effect that everyone is expecting, but in some areas it could make a difference.
And as I said, the difference that I'm looking at and that I'm very concerned about is the kind of disorder that it's going to create in the polling place. Because the situation that you're going to have in this election is you are going to have some poll workers who look at a voter and say, well, this is someone I don't recognize. I'm going to ask them for an I.D.
And the voter for the first time in his or her life is going to be asked for an I.D. and told that they can't vote a regular ballot. They may be told, incorrectly, that they shouldn't be voting at all, or they may be given a provisional ballot.
And the more that happens, the longer the lines, the greater the disorder, the greater the possibility for real discontentment in the polling place and disorder.
DAVIES: Well, Nate Persily, thanks so much for your insights and thanks for talking with us.
PERSILY: Thanks for having me.
DAVIES: Nate Persily is a professor of law and political science at Columbia University. His research and writing focus on voting and election law. Coming up, Kevin Whitehead, our jazz critic, listens to a reissue of three early albums by saxophonist Jan Garbarek. This is FRESH AIR. Transcript provided by NPR, Copyright National Public Radio.