Derek T. Muller is a professor of law at the University of Notre Dame.
Should voters have to show identification before they cast a ballot?
There are good reasons to say yes. Voter ID can deter impersonation, promote orderly administration and reassure the public that elections are open only to eligible voters. Proof of citizenship at registration has a similarly understandable aim. Only citizens may vote in federal elections, and states should take that obligation seriously.
But an understandable end does not make every mechanism to achieve it wise — as is the case with the Save America Act. The bill, which lays out documentary requirements for voting and registering to vote, has become something of a social media phenomenon, with some Republicans in Congress calling to abolish the filibuster to usher it through the Senate and demanding that all other business be put aside until the bill is passed. The problem with the legislation is not that it tries to verify identity or citizenship. The problem is that it replaces every state’s voting law with a national code, written in broad strokes that displace important nuances in how states run elections.
The bill would require documentary proof of citizenship to register for federal elections and a photo ID to vote in them. But states conduct federal and state elections on the same ballots. A rule that applies only to federal elections either forces states to change their systems or requires them to administer two elections at once. Arizona, which runs a separate federal election for voters who cannot demonstrate proof of citizenship, has experience with such a bifurcated system and the complexity that comes with it.
Consider voter ID. The bill would allow a small number of valid physical photo IDs: an identification from the state department of motor vehicles, a passport, a military ID or a tribal ID. That list would displace every state’s ID choices for federal elections. Texas and Iowa could no longer use their more forgiving rules that permit recently expired driver’s licenses. The legislation would prevent states such as Arkansas from accepting digital IDs and would exclude Alaska’s hunting and fishing licenses and Florida’s concealed carry licenses, even though those states have judged these documents adequate.
One can favor voter ID and still think that odd. Texas and Florida lawmakers are hardly indifferent to election security, but the bill would tell them their ID laws are inadequate — not because they failed to verify voters, but because they used a different list of IDs.
The one-size-fits-all rule for proof of citizenship has the same problem. It would be more restrictive than Florida, for instance, where a new proof-of-citizenship law lets the state rely more heavily on verification through government records, but less restrictive than Arizona. For voters whose birth certificate doesn’t match their current name, the bill would allow states to accept an affidavit attesting the applicant’s previous name. Arizona, by contrast, does not. That is a meaningful accommodation on the part of the Save Act, and some criticism overlooks it.
Furthermore, voter registration would grow more complicated in every state. The bill requires in-person documentary proof with new applications. The biggest practical consequence may be the one getting the least airtime: Online voter registration would effectively end as Americans know it. Forty-two states and D.C. offer registration online. But under the bill, voters must present physical documents along with the application.
The bill’s design prefers IDs that Democrats tend to have more than Republicans do. It privileges passports, which Democrats own at higher rates than Republicans, and removes concealed carry licenses as permissible ID in several states. The bill also adds paperwork for married women who change their names, who are disproportionately Republicans. And it ends online voter registration for rural — mostly Republican — voters. If Republicans are hoping to gain an electoral edge with this bill, they are sorely mistaken.
Supporters may answer that federal elections deserve uniform rules. There are cases for nationwide standards, and there are already some rules about voter registration and voter rolls that set those criteria. But the bill would not merely set a floor to guide states as they manage elections. It would dictate how elections are run in all 50 states while leaving it to those states to absorb the disruption.
There are better ways to achieve these goals. Congress could define minimum standards for proof of identity and citizenship while prohibiting inadequate practices. States could decide — as they do now — whether a recently expired license, a digital credential or a hunting license is adequate. Lawmakers also could preserve online registration while allowing states to verify citizenship through motor vehicle records, vital records and federal databases. And to ensure that the bill doesn’t confound states and voters, Congress could fund the transition and give states time to implement new rules.
Election law works best when rules are clear before voting begins. If the bill passes in its present form, voters from Texas to Florida will be surprised this November that long-standing IDs are no longer acceptable. Lawmakers have not thought through the details of this bill. If Congress wishes to secure elections, it should set reasonable guardrails and allow the states to fill in the gaps.
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