New Voter ID Requirements
As attention turns to the United States Presidential elections, many overseas voters are wondering what legislative changes are in store and how to ensure they are not disenfranchised as a result of more stringent ID requirements adopted by certain States. This spate of new laws imposing additional documentation requirements and/or limiting voting access has surged forth in the wake of two recent judicial decisions:
Firstly, the Supreme Court in Arizona v. Inter-American Tribal Council (which we covered in a previous ACA News Update) held that while an Arizona voter law requiring proof of citizenship was illegal, States in general do have the right to determine the conditions under which they administer state and local elections. Many states had legislation prepared for immediate enactment in the wake of the Arizona decision.
Secondly, in Shelby County v. Holder, decided in 2013, the Supreme Court invalidated a substantial component of the landmark 1965 Voting Rights Act “VRA,” which had for many years opened up voting to millions of blacks in the South. The “pre-clearance” requirement meant that certain state and local governments – principally in the South – had to submit any changes in their voting laws to the Federal Justice Department before it could implement them. This invalidation of the pre-clearance rules in Section 5 of the VRA suggests a return to a plethora of court battles as the Federal government and states jockey for primacy of control over state election law standards.
Within 24 hours of the Supreme Court's Shelby decision, five states moved to adopt voter ID laws. Among them was Texas, which announced it would move ahead with its restrictive voter ID law and new redistricting maps. Both measures were found to be discriminatory by the Justice Department and are the subject of a challenge in Federal court. North Carolina has enacted more restrictive voting laws in the wake of the Shelby decision, imposing new identity document requirements and scaling back early voting possibilities. These measures are also being challenged with a suit filed by the Justice Department, alleging that the restrictions discriminate against North Carolina minority voters.
Given the deeply divided character of our Congress, it is unlikely that agreement will soon be reached on a new formula for determining whether or not a voting requirement does or does not discriminate. Consequently, it is likely that litigation in this field will continue unabated for some time. The majority decision in Shelby denotes a presumption among the High Court Justices that States no longer need judicial oversight in order to ensure that their voting laws do not discriminate. It would therefore appear that challenges to state voter ID laws and the like will become increasingly difficult to maintain in the future.
What should the overseas voter make of this situation, and how can we ensure that our votes are cast, valid, and tabulated? State law regarding typically express distinct documentation requirements for each of three voter types, i.e., first-time voters, in-person voters and absentee voters. Overseas voters are of course absentee voters, and they comprise two sub-categories: those who have previously registered to vote, and first-time overseas voters. A number of states have relaxed documentation requirements for absentee voters who have registered in a previous election.
Many voters will face the same requirements they faced in previous midterm and presidential elections, and for them nothing will change in 2022. Others hail from states which have changed or contemplate changing their voting requirements and procedures prior to the next election, so it is imperative that overseas voters review the documentary and administrative requirements which will apply.
To ensure that no surprises spoil the process of registering and ballot casting, overseas voters should consult the website of the Secretary of State for the state in which they plan to vote. Questions not answered on the website can normally be addressed to voting officials in the borough or parish in which they plan to register. A state by state overview (updated for 2014) can be found at: www.longdistancevoter.org/voter_identification
A review of state voting laws which have changed recently indicates that where proof of citizenship or photo ID is required, a copy of the passport placed in the mailing envelope (but separate from the security envelope containing your ballot) is the most commonly adopted solution for overseas voters.
ACA recommends that all overseas citizens keep several copies of their passport available, to facilitate passport replacement in case of loss or theft, and to document citizenship when required by voting laws.
The Brennan Center estimates that nationwide, 13 million Americans lack documentary proof of their citizenship. Overseas voters are not specifically targeted by Voter ID laws, and planning can mitigate the inconveniences they entail. However, overall, the increased compliance burden will no doubt cause some reduction in voter participation levels. Both at home and abroad these laws have effects which are a matter of concern to all who value the integrity of the voting process.