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National Issues

Voter Confusion PDF  | Print |  Email
By Tova Andrea Wang, The Century Foundation   
October 28, 2006

This article was posted at The Century Foundation website. It is reposted with permission of the author.


All over the country this November, new voting laws will be in effect that will make an already highly combustible election all the more complicated. None is more troubling than the raft of unnecessary and disenfranchising voter identification laws. In two states the strictest of these types of laws have been held unconstitutional and barred from implementation, but throughout the country the damage is likely already done. In many states that are critical to the upcoming election, there is tremendous confusion over the new voting procedures. This confusion over a state’s voter identification requirements may lead to voters being asked for forms of identification they are not required to have, longer lines, more provisional ballots that must be evaluated and counted after the election, and voters avoiding the polls because they think they do not have the proper identification to vote when in fact they do.


Incredibly, the Supreme Court, of all bodies, has just made that confusion worse in the state of Arizona. Arizona has a new rule that requires voters to prove citizenship when registering to vote and to present either photo identification or two forms of approved non-photo identification in order to vote. After a series of court battles over this new law in which the rule was initially upheld, the Court of Appeals for the Ninth Circuit issued an emergency injunction against implementation of the new law. Quite suddenly, last Friday the Supreme Court undid this ruling on mostly procedural grounds, and ordered the state to in fact proceed with this very dangerous new rule. As election lawyer Robert Bauer has astutely pointed out, when bona fide challenges are made to a law that clearly places restrictions on the franchise, “there is no good cause for leaving it in place until final adjudication. This is not the place for deference to legislative authority.” So just as elections officials, poll workers, and voters were preparing to go forward with the election under the rules Arizona had always followed for years prior to this new restriction on the right to vote (except for a low turnout September primary), the Supreme Court, in the name of avoiding voter confusion, two weeks before the election turned everything upside down again. Will we be surprised if voters and poll workers are totally unclear about what they have to do to gain access to the polls?


And Arizonans are not in the worst position—Georgians have to be completely perplexed by now. Georgia was the leader in passing a law requiring government-issued photo identification at the polls, and the courts there have consistently held the rule to be an unconstitutional poll tax. Yet mysteriously, the Republican-dominated Board of Elections sent 300,000 letters to Georgians telling them they might not have the government issued photo identification necessary to vote—and 200,000 of these letters were sent days after the latest court ruling blocking implementation of the new identification law. So now the state is sending out yet another 300,000 letters to voters telling them they do not need the photo identification to vote. As the executive director of the League of Women Voters there said, “From where we are sitting, this is one of the worst things that could happen as far as voter confusion. It certainly sends quite a clear message to those voters that they might have to show a driver’s license. And if they are not paying attention to court rulings, they are not sure what they are going to do .”


Similar mass confusion is possible in Missouri. After the Missouri legislature passed their misguided law, the state spent $680,000 on a campaign to tell voters they had to bring government issued photo identification to vote this year. Then, correctly and predictably, the courts held the law unconstitutional. So now voters do not need government issued photo identification to vote. This is a very positive development—but do voters and poll workers know about the change? Or will poll workers be asking voters for photo identification? Will voters, who do not have such identification, believe they need it to vote, and therefore not go vote?


In a final example, Ohio has a voter identification requirement for the first time. Unlike the other states mentioned here, due to the work of voting rights advocates, Ohio’s new rule allows voters to use a number of different forms of identification in order to vote, and even has a fall-back provision for the voter to cast a vote even if he does not have one of those documents. But with all the chatter and debate over photo identification, do the key players know which kind of identification is acceptable and which is not? Or that there is another way to vote if the voter has no identifying documents at all? According to a review of the various boards of elections Web sites in Ohio, the Greater Cleveland Voter Coalition found overwhelmingly that they did not provide the necessary information about identification rules. Counties also were sending out flyers with misleading information about the rules. The coalition further found that even the secretary of state’s Web site and the secretary of state’s Voter Information Guide do not fully explain the new rules and the various alternatives. Ohio has a history of problems with identification and the implementation of fair election rules generally. Can we expect another nightmare scenario in Ohio over this confusion?


Compounding the possible direct disenfranchising impact all this confusion could have is the ancillary disenfranchising effect it could have. Disputes over voting eligibility slow the process down and adds to long waits. They also lead to an increase in the use of provisional or paper ballots, since every time there is a problem with identification, the voter will have to vote provisionally. This will take even more time, leading the lines to get even bigger, and people who have other work or family commitments to give up and possibly leave, not to return. And the voter casting the provisional ballot has much less of a chance of having his vote count—one-third of such ballots were tossed aside in the 2004 election.


This scenario of potential confusion and increase in paper ballots to be counted after the election does not even take into account that one-third of the population will be using a voting machine they have never seen before; possible machine malfunctions, new procedures for registering to vote, new voter registration databases that may or may not be fully functional, and the usual insufficient recruitment and training of poll workers.


Thanks to legislatures who claim to be furthering the cause of “election integrity,” and a surprising assist from the Supreme Court, we could be in for another interesting election day.


Tova Andrea Wang is a Democracy Fellow at The Century Foundation.

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