State Voter Identification Requirements: Analysis, Legal Issues, and Policy Considerations
Released: 2016-10-21T00:00:00

Introduction and Overview

More than half the states require a voter to provide a specified identification document (ID) to cast a ballot at the polling place, and a few extend the requirement to absentee or mail-in voting. Many states require an ID with a photograph of the voter (photo ID) . Some require a document that does not need to include such a photograph (nonphoto ID) . Others do not require any type of ID to vote, but a voter may be asked to provide certain information to verify what is contained in the registration record or otherwise confirm his or her identity, such as stating an address or birth date or providing a signature.

Voter identification requirements across the states vary in flexibility, in the types of documents allowed, in exceptions made to the requirements, and in the recourse available to a voter who cannot comply with the ID requirement at the polls. Photo ID requirements in particular have been a major issue of policy debate in recent years, but for both photo and nonphoto ID, the range of IDs accepted and how strictly the state enforces the requirement have also been sources of controversy. Debates over such requirements are typically complex and can be contentious.

This report provides an updated overview of state requirements for voters to present some form of ID before casting a ballot in a federal election. The report also discusses the origins of voter ID, relevant federal legislative action in the 114 th Congress, and selected legal and policy issues related to state voter ID laws. The scope is limited to identification requirements for voting; the report does not address voter registration requirements.

Status of Voter ID Requirements in the States

Thirty-two states require voters to show an ID to cast a ballot at a polling place. Nine of those permit no alternatives to photo IDs. Another 9 states require a voter to show a photo ID, if available, but also permit means of identification other than an ID. Examples of such alternatives include signing an affidavit and permitting the voter to cast a provisional ballot, with the election office confirming identity subsequently by matching information or a signature provided by the voter to what the office has on file (see Table A-1 ).

Fourteen states require a voter to present an ID but accept documents that do not include a photo, such as a voter registration card, current utility bill, hunting or fishing license, bank statement, paycheck, tribal ID, Social Security card, or other approved document (see Table A-2 ).

See " Differences in Voter Identification Requirements among the States " for further discussion of requirements among the states.

The Help America Vote Act Identification Requirement and the Origins of Voter Photo ID

A number of notable developments are relevant to the increased attention to voter identification in policy debates during the past 15 years. Requirements for voters to present an ID have reportedly been in force in some states since at least the 1950s. By the year 2000, about a dozen states had voter ID requirements. After the 2000 election, numerous studies and reports assessed the nation's voting process, or aspects of it, and made policy recommendations. Perhaps the best known study was issued in August 2001 by the National Commission on Federal Election Reform, often referred to as the "Carter-Ford Commission." The study was sponsored by the Miller Center of Public Affairs at the University of Virginia and The Century Foundation, and it was co-chaired by former Presidents Gerald R. Ford and Jimmy Carter. The report noted that states should work to improve "verification of voter identification at the polling place" and recommended that they

require those who are registering to vote and those who are casting their ballot to provide some form of official identification, such as a photo ID issued by a government agency (e.g., a driver's license). A photo ID is already required in many other transactions, such as check-cashing and using airline tickets. These Commissioners point out that those who register and vote should expect to identify themselves. If they do not have photo identification then they should be issued such cards from the government or have available alternative forms of official ID. They believe this burden is reasonable, that voters will understand it, and that most democratic nations recognize this act as a valid means of protecting the sanctity of the franchise.

Many of the report's recommendations were incorporated in the Help America Vote Act (HAVA, P.L. 107-252 ) which was enacted in October 2002. Title III of HAVA includes requirements for states on voting systems, voter information, provisional voting, and voter registration. Since 2006, states have been required to maintain a single, computerized list of all registered voters that every election official in the state can access.

Title III also includes a limited voter identification requirement. An individual who registers to vote by mail and has not previously voted in a federal election in the jurisdiction must provide a current, valid photo ID or a copy of a current utility bill, bank statement, government check, paycheck, or other government document with the voter's name and address, whether voting in person or by mail. The requirement does not apply to a voter who registers under the National Voter Registration Act of 1993 (NVRA, P.L. 103-31 , also known as the "motor-voter" law), and submits with the registration application one of the required identifications, or who provides a driver's license number or the last four digits of the voter's Social Security number that matches an existing state record with the same number, name, and date of birth as provided in the registration. A voter who does not provide required documentation may submit a provisional ballot that is counted in accordance with state law if the appropriate election official determines that the voter is eligible.

Another provision in HAVA made clear that states are free to adopt more stringent election administration requirements than those imposed by the act:

The requirements established by this title are minimum requirements and nothing in this title shall be construed to prevent a State from establishing election technology and administration requirements that are more strict than the requirements established under this title so long as such State requirements are not inconsistent with the Federal requirements under this title or any law described in section 906.

Following passage of HAVA, states enacted laws to implement the act's identification requirement, and in some cases, more stringent requirements, leading to a doubling over the next few years in the number of states with voter ID requirements.

After the 2004 election, another study was issued in September 2005 by the Commission on Federal Election Reform. Often referred to as the "Carter-Baker Commission," it was organized by the Center for Democracy and Election Management at American University and co-chaired by former President Carter and former Secretary of State James A. Baker, III. Its report repeated the recommendation of the Carter-Ford Commission for states to adopt an ID requirement for voters. Further, it recommended that states require a photo ID that meets requirements specified in Title II of the REAL ID Act of 2005 ( P.L. 109-13 ), and that states provide IDs with no charge to voters without them. However, some members of the commission considered that recommendation "troublesome," for reasons similar to the concerns of some observers about stringent photo ID requirements discussed in the section on " Implementation Issues and Policy Considerations ."

Some attempts have been made to enact federal photo ID requirements. A notable bill from the 109 th Congress, H.R. 4844 , passed the House of Representatives in September 2006. It would have required photo ID and proof of citizenship to vote in federal elections. It would also have required that voters who cast a provisional ballot because they did not have the required ID present an approved ID within 48 hours for the ballot to be counted. The bill included an exception for military and overseas voters. It would have required states to provide photo IDs to qualified voters who did not have them, and to provide them to indigent voters at no cost. It would have authorized appropriations to cover the costs of providing such IDs to indigent voters. The bill was not taken up by the Senate before the 109 th Congress adjourned, but several states have adopted similar requirements (see Table A-1 ).

Public Opinion on Voter ID Requirements

Much of the public discussion about voter ID focuses on how to balance the goals of preventing voter fraud and protecting voter rights (see " Impacts on Turnout and Voter Fraud "). Public opinion surveys over the past decade have consistently found significant majority support for requiring a photo ID to vote. The wording of the questions has varied, with some surveys providing more context about the issues than others. Although all of the surveys described broad categories of ID, several specified that they be "valid," "official," or "government" documents. Some points from the surveys relevant to this report are summarized below:

According to one study that compared results from 19 polls between 2006 and 2014, overall support for voter ID has decreased somewhat, from more than 80% in 2006 to about 75% in 2014. In a 2012 survey by the Pew Research Center, respondents were asked if they possessed the needed identification, and 98% said they did. Other studies, however, have found a broader range, from 80% to 95%. A Washington Post poll from 2012 asked whether voter fraud was a problem in presidential elections. About half of respondents said they believed it to be a major problem, one-third considered it a minor problem, and about one in six said it was not a problem. The same poll asked whether voter suppression—described as eligible voters taken off registration lists or denied the right to vote—was a problem in presidential elections. About 40% of respondents believed it to be a major problem, one-third believed it a minor problem, and 20% believed it not to be a problem. One question from that poll joined those two concepts by asking which was more of a concern to the respondent, the potential for vote fraud or the potential that eligible voters could be denied the right to vote. The response was about evenly split, with a few percent more stating they thought vote fraud was more of a concern.

It is not clear to what extent respondents in any of the polls were aware of evidence on the degree to which voter fraud occurs; nor is it possible to know how such information would have affected their opinions.

No information was found in the surveys about how voters respond to the different specific kinds of photo ID that different states permit (e.g., a driver's license, an employee ID card, a passport). These and similar policy concerns remain factors in the ongoing debate about whether obtaining required ID presents an undue hardship for some who wish to vote, or whether voter IDs are essential, despite any such hardships, to prevent voter fraud (see " Implementation Issues and Policy Considerations ").

Voter ID Legislation in the 114th Congress

Several bills introduced in the 114 th Congress contain provisions pertaining to voter ID. Some of those bills contain provisions would promote or protect voter ID requirements, while provisions in others would modify, restrict, or eliminate the use of such requirements.

H.R. 885 would shield voter ID requirements from some challenges. It would amend Section 2 of the Voting Rights Act (VRA) relating to the requirement for federal courts to block procedures that deny or abridge voting rights. It would expand the kinds of violations that would trigger such actions by the courts, but it would exclude voter photo ID requirements from the list of violations under the section. H.R. 2867 and S. 1659 would restrict the use of voter ID. It would amend the VRA to require preclearance under Section 4 of state changes to voter ID requirements that would make them more stringent than either those required of first-time voters under HAVA or, for voter registration, those in effect in the state at the time of enactment of the bill. H.R. 3277 would eliminate voter ID requirements. It would amend HAVA to prohibit election officials from requiring photo ID for registering to vote or for voting. H.R. 3364 would not directly prohibit voter ID requirements but would require states to provide an alternative. It would amend HAVA to permit a voter—other than a first-time voter who registered by mail—to meet an identification requirement for voting by signing a sworn statement attesting to his or her identity. The bill would require states to make preprinted statements available to absentee voters and at the polls, and it would prohibit a state from requiring a voter who presents the form to be required to vote a provisional ballot. Similar proposals for first-time voters were debated in Congress when HAVA was being considered. Several states that do not require voter ID currently require an affidavit or signature by a voter before the voter can cast a ballot. H.R. 5557 would restrict voter ID requirements. It would amend HAVA and NVRA to prohibit requiring a voter ID that has an associated cost. S. 1912 would modify state voter ID requirements. The bill stipulates that states or jurisdictions with such requirements shall accept a tribal identification card as valid for that purpose.

As of June 2016, none of those bills had received further consideration by the committees to which they were referred. A discharge petition was filed that month for H.R. 2867 .

Differences in Voter Identification Requirements among the States

As with many aspects of election administration, states vary widely with respect to verifying voter identity. Some require photo ID, others nonphoto ID, and yet others nondocument identification. Some states with ID requirements accept a broad range of documents, while others permit only a narrow range. Some states permit voters without ID to confirm their identity through another means, while others do not.

As shown in Figure 1 and the two tables in the Appendix , 32 states require a voter to show ID before voting at a polling place. The other 18 states and the District of Columbia do not require a voter to provide any ID to vote—they have a range of nondocument requirements instead.

Figure 1 depicts state ID requirements as organized into five categories, based on whether the state requires a document ID, whether an ID must have the voter's photograph, and whether the ID requirement is strictly enforced. Table A-1 describes the specific requirements for photo ID states, and Table A-2 for states requiring an ID that need not be photographic.

The differences among requirements in the states are sufficiently nuanced that observers may reasonably differ in characterizing a state's requirements as strictly enforced or not. For purposes of this report, whether an ID requirement is considered strictly enforced is based on interpretation of the requirement as described in state law or available guidance. In a state with a strictly enforced requirement, a voter who does not present the required ID at the polling place—with certain exceptions that vary among the states—either cannot cast a ballot at all or must cast a provisional ballot and take action after leaving the polling place to verify his or her identity in order for the ballot to be counted. By those criteria,

9 states have a strictly enforced photo ID requirement (Alabama, Georgia, Indiana, Kansas, Mississippi, North Dakota, Tennessee, Virginia, and Wisconsin), and 4 states have a strictly enforced nonphoto ID requirement (Arizona, Missouri, Texas, and Utah).

A voter without an ID is permitted other means of identification in

9 other states requiring photo ID (Florida, Idaho, Louisiana, Michigan, New Hampshire, Rhode Island, South Carolina, South Dakota, and Washington), and the 10 others requiring nonphoto ID (Alaska, Arkansas, Colorado, Connecticut, Delaware, Hawaii, Kentucky, Montana, Ohio, and Oklahoma).

Examples of such alternative means of identification include signing an affidavit or providing a nonphoto ID. In some states voters may cast a provisional ballot, and the election office will attempt to confirm identity subsequently by matching information or a signature that is provided by the voter against the information that the office has on file.

Georgia and Indiana were the first states to enact strictly enforced photo ID requirements, in 2003 and 2005, respectively. The most recent such requirement is that of North Dakota, enacted in 2015.

Oregon and Washington conduct elections entirely by mail. In these two states, election officials mail ballots to all registered voters, who are not required to provide IDs when submitting those ballots. Both states also permit voters to cast a ballot in person during a designated voting period that ends on Election Day. Washington requires either a photo ID or signature declaration for in-person voting. Oregon uses signature verification for both mail-in and in-person ballots.

Some states in the "strictly enforced" category also provide exceptions or other recourse to a restricted group of voters. For example, Kansas permits voters with religious objection against being photographed to sign a form declaring the objection either in advance or at the polling place. Alabama and Missouri permit voters without IDs to cast regular ballots if two election officials at the polling place sign an affidavit attesting to the voter's identity and eligibility.

The 19 states with ID requirements not categorized as strictly enforced permit ballots to be counted for most or all voters who do not have ID without the need for them to take action after leaving the polling place. For example, in Florida, a voter without an ID must cast a provisional ballot, but it will be counted if the signature on the ballot matches that in the registration record. In South Carolina, a voter without a photo ID must cast a provisional ballot along with a declaration of a "reasonable impediment" to obtaining such an ID. The ballot will be counted unless someone presents proof to the election commission that the voter is lying about his or her identity or the impediment.

Sixteen states with photo ID requirements had them in effect for the federal election in November 2014. Among the other states that had enacted such requirements before the 2014 election, Wisconsin's went into effect in 2015. Because North Dakota enacted its requirement in 2015, the 2016 federal election will be the first for which it will be in effect. The requirements enacted in Arkansas and Pennsylvania were rejected by state courts. See also the section on " Legal and Constitutional Issues Regarding Voter Photo ID Laws ."

In the Appendix , Table A-1 describes the photo ID requirements for the 19 states with such a requirement. Table A-2 describes requirements for the 14 states in which a voter is to provide some form of identification document that may be a photo or a nonphoto ID. About 60% of voters live in states with voter ID requirements—30% in photo ID states and 20% in nonphoto ID states—and about 30% live in the 13 states with strictly enforced voter ID requirements.

Some patterns can be discerned from the tables, such as on the kinds of IDs accepted, application to mail-in and absentee voting, and the recourse voters have if they do not have an accepted ID. The discussion below illustrates both commonalities and the complexity of variation among state requirements.

Commonly Accepted IDs

There is a common set of IDs accepted by most or all states. All states accept driver's licenses or nondriver IDs issued by that state. All but one state (North Dakota) will accept a U.S. passport or other federal photo ID, although some states stipulate that a voter produce an ID showing the voter's address (e.g., Arizona, Ohio), in which case a second ID might be necessary. Other IDs are specified as acceptable by several states. For example, tribal IDs are explicitly mentioned by 16 states. Overall, while the requirements in some states, such as Alabama and Mississippi, appear to be similar overall, no two states have clearly identical requirements.

Range of Accepted IDs

The range of other authorized IDs listed in the tables for different states is broad. In addition to those discussed above, photo IDs specified as accepted by one or more states in Table A-1 include employee, neighborhood association, public assistance, retirement center, and student IDs, credit and debit cards, weapon licenses, election identification certificates, certificates of naturalization, government-issued medical cards, military, veterans, and other government IDs, and others as determined by election officials.

Additional IDs specified by one or more states in Table A-2 include birth certificates, Bureau of Indian Affairs cards, certified court records with adoption or name change, hunting or fishing licenses, Indian census cards, leases or mortgages, local election authority IDs, naturalization documents, official election material mailed to voters, pilot's licenses, property tax statements, recorder's certificates, Social Security cards, tribal treaty cards, vehicle registration or insurance cards, verification of residency in group facility or medical confinement, voter confirmation notices, and voter registration cards, as well as documents required for some voters by Section 303(b) of HAVA—bank statement, government check, paycheck, utility bill, and other government document with the name and address of the voter (see " The Help America Vote Act Identification Requirement and the Origins of Voter Photo ID ").

Some states in Table A-1 accept only a narrow range of photo IDs. The narrowest requirement is that of North Dakota, which accepts only a driver's license or photo ID issued by the North Dakota Department of Transportation or a photo ID issued by a tribal government. Twelve states permit state-issued IDs only from that state but also permit other classes of ID such as those issued by the federal government. Some states permit IDs to be expired, at least in some cases, while others require that they be current. All of the states with strictly enforced photo ID requirements issue free IDs to voters who qualify. Several of the other photo ID states do as well. However, there may be other costs associated with obtaining a free voter ID (see " Obtaining an ID ").

Application to Absentee and Mail-in Voting

The ID requirements for polling-place voters apply to those voting by absentee or mail-in ballots in eight states (Alabama, Alaska, Kansas, North Dakota, Ohio, South Dakota, Virginia, and Wisconsin). Three of those (Alaska, Ohio, and South Dakota) do not have strictly enforced voter ID requirements. Eight states with strictly enforced requirements do not extend them to absentee voters (Arizona, Georgia, Indiana, Mississippi, Missouri, Tennessee, Texas, and Utah). Three of those (Arizona, Georgia, and Utah) do not require voters to provide a reason when applying to vote absentee.

Among the states with voter ID requirements for absentee voting, notable exceptions occur in two: North Dakota permits absentee voters who do not have approved IDs to have their identities attested to by other qualified voters. In Virginia, this ID requirement pertains only to those applying in person for an absentee ballot. See also " Impacts on Turnout and Voter Fraud ."

Recourse for Voters without ID

In 8 of the 9 states with strictly enforced photo ID requirements, (Alabama, Georgia, Indiana, Kansas, Mississippi, Tennessee, Virginia, and Wisconsin), a voter who does not have the required photo ID may cast a provisional ballot that will be counted if the voter presents an accepted ID to election officials within a specified period after the election. North Dakota does not provide such an option. Two states (Kansas and Virginia) specify that a voter can provide the ID via mail or other designated means rather than in person.

Five of the photo ID states where the requirement is not strictly enforced permit a voter without ID to cast a regular ballot after signing an affidavit (Idaho, Louisiana, Michigan, New Hampshire, and South Dakota). The other four permit the voter to cast a provisional ballot, which will be counted after confirmation of a signature match (Florida and Washington) or information provided in an affidavit (Rhode Island and South Carolina). The voter's eligibility may be challengeable or subject to subsequent investigation to verify eligibility.

Among the 14 nonphoto ID states in Table A-2 , a voter who does not have an acceptable ID can establish his or her identity by some other means at the polling place in 10 (Alaska, Arkansas, Colorado, Connecticut, Delaware, Hawaii, Kentucky, Montana, Ohio, and Oklahoma). Arizona, Missouri, Texas, and Utah are the four states where the requirement is strictly enforced. In Arizona, Texas, and Utah, a voter who cannot produce a nonphoto ID from the list of approved documents may vote provisionally and provide the ID to county election officials within a specified time after the election.

Missouri's requirement does not contain such an option. A voter without ID can cast a ballot only if two supervising election judges at the polling place who are from different major political parties sign an affidavit attesting to the voter's identity. No data were available on the frequency of such attestations, but they would seem unlikely except for polling places in small, tight-knit communities where most voters would be known to the pollworkers. That suggests that among the nonphoto ID states, Missouri's requirements are most similar to those of North Dakota, which has a strictly enforced photo ID requirement.

Among the 11 states with strictly enforced ID requirements permitting subsequent verification of identity, the time period within which verification must occur varies. It might be a specified day or number of days after the election—ranging from 2 to 10 days—or before a meeting of election officials or county certification of the election, or by a deadline to be provided to the voter at the polling place. Ohio permits a voter who cannot present identifying information at the polling place to present it within 7 days to the election office.

To further illustrate differences in state laws, in Louisiana, a voter without a "generally recognized" photo ID with name and signature must sign an affidavit and present other identifying information to an election official, and may be subject to challenge. In Indiana, a voter without a current or recently expired photo ID issued by the Indiana or federal government can cast a provisional ballot that will be counted if the voter appears at the county elections office by noon on the Monday after the election and either brings the required ID or signs an affidavit affirming indigence or religious objection to being photographed. In Ohio, an in-person or absentee voter must present an Ohio or federal government ID which is unexpired or other specified document dated within the last year, with ID or document containing the voter's name and address (except for a military ID); a voter without an accepted ID may cast a provisional ballot and provide an Ohio driver's license or nondriver ID number or the last four digits of the social security number, either as part of the provisional ballot information or within seven days after the election. For additional details and other examples, see the Appendix . For further discussion, see " Voters Who Do Not Have an Accepted ID ."

Legal and Constitutional Issues Regarding Voter Photo ID Laws41

State voter photo ID laws have been the subject of litigation. (While nonphoto ID laws have also been challenged, this section focuses on legal issues relating to the generally stricter voter photo ID laws.) These laws have been challenged under the Fourteenth Amendment to the U.S. Constitution, Section 2 of the Voting Rights Act (VRA), and state constitutional provisions. Such challenges have drawn attention in view of a 2008 U.S. Supreme Court ruling, discussed below, that upheld the constitutionality of an Indiana voter photo ID law.

Challenges under Section 2 of the VRA are also notable because in the past, Section 2 has generally been invoked in the context of redistricting. Section 2 of the VRA provides a right of action for private citizens or the government to challenge discriminatory voting practices or procedures. The law prohibits any voting qualification or practice by any state or political subdivision that results in the denial or abridgement of the right to vote based on race, color, or membership in a language minority. The statute further provides that a violation is established if, based on the totality of circumstances, electoral processes are not equally open to participation by members of a racial or language minority group in that its members have less opportunity than other members of the electorate to elect representatives of their choice.

Until the final weeks and months preceding the November 2014 election, due to ongoing appeals, the question of whether some state voter ID laws would be in effect was unknown. Likewise, leading up to the November 8, 2016, presidential election, there has been ongoing litigation challenging certain state laws.

This section of the report analyzes challenges to voter photo ID laws under the Fourteenth Amendment and Section 2 of the VRA, specifically addressing, by way of example, recent court rulings in North Carolina and Texas; provides an overview of a challenge to a voter photo ID law under a state constitutional provision; and finally, discusses some potential implications of these challenges.

Fourteenth Amendment and Voting Rights Act

Supreme Court Ruling

In a 2008 ruling, Crawford v. Marion County Election Board , the Supreme Court upheld an Indiana voter photo ID law against a facial challenge under the equal protection clause of the Fourteenth Amendment. The Indiana law requires voters to present a photo identification card issued by the government.

A majority of the Court in Crawford did not agree on a rationale for upholding the voter photo ID law. The lead opinion found that although the law imposes a "somewhat heavier burden" on a "limited number" of people, the severity of that burden is mitigated by the fact that eligible voters may cast provisional ballots that will ultimately be counted. Moreover, the opinion reasoned, even if the burden cannot be justified as to a few voters, that fact would be insufficient to require the relief sought by the petitioners, which was to invalidate the voter photo ID law in all its applications. In conclusion, the lead opinion determined that Indiana's voter photo ID law imposed only a "limited burden" on voting rights that is justified by the state interest in protecting election integrity. Notably, the opinion announced that if a law is nondiscriminatory, and supported by valid, neutral justifications, then such justifications are still relevant to consider even if one of the legislature's motivations in enacting the law was to pursue partisan political interests. Importantly, although the lead opinion in Crawford rejected a facial challenge, i.e., a case seeking to invalidate the statute in all its applications, to a voter photo ID law, it appears to have left open the possibility of "as applied" challenges to such laws if greater evidence of the burdens imposed on voters' rights could be shown.

Lower Court Rulings

Litigation challenging a number of state voter photo ID laws has occurred, or is currently ongoing, in the lower courts. By way of example, this report discusses recent court rulings in long running litigation evaluating two state laws. In the first ruling, a partially divided U.S. Court of Appeals for the Fourth Circuit invalidated North Carolina's voter photo ID law, holding that it was enacted with a racially discriminatory intent in violation of the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the VRA. In the second ruling, issuing a plurality opinion, a divided en banc panel of the U.S. Court of Appeals for the Fifth Circuit ruled that a Texas voter photo ID law has a discriminatory effect on minorities' voting rights in violation of Section 2 of the VRA. While not invalidating the Texas law, the court required that it be administered on November 8 with modifications. On the issue of whether the law was enacted with a discriminatory intent, however, in contrast to the Fourth Circuit ruling, the court remanded.

North Carolina

In July 2016, a partially divided U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) invalidated North Carolina's voter photo ID requirement, along with other provisions of its election law. In North Carolina State Conference of the NAACP v. McCrory , the court held that the 2013 law was enacted with a racially discriminatory intent in violation of the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the VRA. Reversing and remanding a lower court ruling, the court enjoined implementation of the law. On August 31, by a 4-4 vote with regard to the voter photo ID provision, the U.S. Supreme Court denied North Carolina's request for a stay of the appellate court ruling. As a result, the law will not be in effect for the November 8 election.

As a threshold matter, the Fourth Circuit observed that, similar to laws that expressly discriminate on the basis of race, if a law is discriminatorily motivated, it is unconstitutional. In determining whether discriminatory intent motivates a facially neutral law, the court interpreted Supreme Court precedent as requiring consideration of several factors, including first, the historical background in a case. Here, the appellate court determined that the lower court clearly erred in finding minimal evidence of official discrimination in North Carolina since the 1980s, and instead identified evidence of attempts by the legislature "to suppress and dilute" African American voting rights. Second, a court is required to consider the sequence of events leading to the challenge. According to the court, the record of the case showed that immediately after a 2013 Supreme Court ruling that rendered the preclearance requirements of the VRA inoperable, the North Carolina legislature substantially expanded an earlier photo ID bill and "rushed through ... the most restrictive voting legislation seen in North Carolina since enactment of the Voting Rights Act of 1965." The court held that the lower court erred by not drawing "the obvious inference" of discriminatory intent from this sequence of events. Third, Supreme Court precedent recognizes the relevance of legislative history. In this case, the court determined it relevant that the legislature requested and utilized racial data, including a breakdown by race of DMV-issued ID ownership, absentee and early voting, and same-day registration, which showed that African Americans disproportionately use such procedures. When compared to the "unpersuasive non-racial explanations the State proffered for the specific choices it made," the court considered this element of the legislative history probative. Last, a court is instructed to consider whether the law impacts one race more than another. The court found error in the lower court's conclusion that the voting procedures eliminated by the law were simply "more convenient," and "preferred" by African Americans. African-American voters disproportionately use the voting procedures eliminated or reduced by the challenged law as a result of socioeconomic disparities, the court held, and such use is not borne from a simple "preference." The court concluded: "Registration and voting tools may be a simple 'preference' for many white North Carolinians, but for many African Americans, they are a necessity."

The court was also careful to note that its holding was not meant to suggest that any member of the North Carolina legislature "harbored racial hatred or animosity toward any minority group." The court concluded that the totality of the circumstances evidenced that the law was enacted to "entrench" the majority party's control of the legislature, and even if enacted for such "partisan ends," the court held, "targeting voters who, based on race, were unlikely to vote for the majority party ... constituted racial discrimination." Finally, the court held that the challenged provisions of the North Carolina law, including the voter photo ID requirement, were not tailored to achieve the stated justifications, and in several ways, were "solutions in search of a problem."

Texas

Also in July 2016, issuing a plurality opinion, a divided en banc panel of the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) ruled that a Texas voter photo ID law must be administered in such a manner to rectify a discriminatory effect on voters who do not have the required ID or are unable to obtain such ID reasonably. Affirming a lower court, in Veasey v. Abbott , the plurality found that the law has a discriminatory effect on minorities' voting rights and therefore violates Section 2 of the VRA. While the court did not invalidate the law, it remanded for consideration by the district court of an appropriate remedy. The court also held that the indirect cost on voters who were not born in Texas to obtain an ID was not the equivalent of a poll tax. On the issue of whether the law was enacted with a discriminatory intent , however, in contrast to the Fourth Circuit ruling discussed above, the court reversed the lower court's judgment and remanded for the district court to consider in light of guidance that the appellate court provided. In August, the district court entered an order approving a plan that, among other things, for the November 8 election, allows certain Texas voters without the required voter photo ID, and who cannot obtain such ID due to a reasonable impediment, to cast a ballot after completing a "reasonable impediment declaration." Furthermore, in September, the district court ordered the State of Texas to insure that voter education materials accurately reflect the court's August order setting forth how the voter photo ID law is to be administered for the November 8 election.

In Veasey , regarding the finding that the voter photo ID law has a discriminatory effect in violation of Section 2 of the VRA, the plurality opinion invoked Supreme Court precedent. As required under such precedent, the opinion determined that the challengers showed not only that the law imposes a burden on minorities, but also that it interacts with social and historical conditions to cause an inequality in the opportunities of minority voters to elect preferred representatives. The opinion approved of the lower court's analysis and resulting determination that (1) the law burdens Texans living in poverty, who are less likely to have, or to be able to procure, the requisite ID; (2) a disproportionate number of Texans living in poverty are African Americans and Hispanics; and (3) such minority voters are more likely to be living in poverty because they bear the socioeconomic effects of historical racial discrimination. Further, the opinion determined that the district court thoroughly evaluated the totality of the circumstances, with each finding well supported, and that the State of Texas had failed to contest many of the factual findings.

On September 23, the State of Texas filed a petition for writ of certiorari in the U.S. Supreme Court, arguing for a reversal of the Fifth Circuit's holding that the law has a discriminatory effect. If the Court agrees to hear this case, a decision would be expected after November 8, and therefore would not affect the 2016 election.

State Constitutional Qualifications

Beyond challenges under the U.S. Constitution or federal law, challenges to voter photo ID laws may also arise under state constitutional provisions. For example, similar to certain other state constitutions, the Arkansas Constitution sets forth qualifications for voters. Based on that constitutional provision, less than three weeks prior to the November 2014 election, the Arkansas Supreme Court invalidated a voter photo ID law. According to the court, the framers of the constitutional provision intended that only the four listed voter qualifications be required, and nothing further. The court found that upholding the voter ID law would disenfranchise Arkansas voters, and negate the intent of the framers of the state constitution.

Implications

The question of whether voter photo ID laws comply with the U.S. Constitution, the VRA, and state constitutional provisions continues to unfold. Although the Supreme Court upheld the constitutionality of an Indiana voter photo ID law in 2008 against a facial challenge, as discussed above, some courts have found other state laws distinguishable or have evaluated such laws under the VRA or state constitutional provisions. Litigation in this area is ongoing, and it is unclear how various courts will rule.

Most notably, case law addressing the question of whether voter photo ID laws violate Section 2 of the VRA is just beginning to develop. In the past, litigation under Section 2 was generally invoked in the context of redistricting. Therefore, case law applying Section 2 to voter photo ID laws is evolving and ultimately, may be considered by the U.S. Supreme Court.

Implementation Issues and Policy Considerations

Several issues may arise in the application of voter ID requirements. Among them are these:

implementation problems, especially for new or modified requirements voter difficulties in obtaining IDs issues with recourse for voters with no ID effects on turnout and risk of fraud

Implementation

Election administration changes have the potential to introduce a degree of uncertainty in the voting process simply because they involve new procedures. That is especially true in the first election for which they are implemented. Some states, such as Florida, Georgia, Indiana, and Michigan, have had photo ID requirements in effect for two or more presidential elections. In 8 others (Alabama, Mississippi, New Hampshire, North Dakota, Rhode Island, South Carolina, Virginia, and Wisconsin), the November 2016 election will mark the first time the current requirements will be in effect in a presidential election. In addition, lawsuits that could affect voter ID requirements for that election have been filed in some states.

The administration of federal elections by state and local jurisdictions is a complex, interconnected process, in which changes to any part may have both expected and unexpected effects, not only on what those changes affect directly, but on other parts of the process, and on individual voters, as well. Implementing such changes may reduce the resources available for other tasks before the election, or may have unforeseen effects that would require correction. It may therefore be advantageous for policymakers to provide as much time as possible for implementation, so that election officials, pollworkers, and voters have time to adjust.

Some changes, such as moving the location of an individual polling place, affect a limited number of voters. Others, such as changing voting systems or identification procedures, may affect all the voters in the state. Election officials may be required to educate the voting public about the changes and make the necessary adjustments to pollworker training and procedures before the election to ensure a smooth implementation on Election Day. Voters need to understand the changes and may need to undertake actions, such as obtaining an ID, to insure that they do not jeopardize their ability to cast a ballot.

Other issues that could arise because of new photo ID laws include the potential for long lines and the possibility that pollworkers could misapply the rules. Long lines may develop in high-turnout elections, such as presidential ones, if new check-in procedures require each voter to present an ID. Voters who are unaware of such new requirements and those who do not have an acceptable ID may cause delays and complications if they need to execute affidavit votes or cast provisional ballots.

Finally, there is the possibility that some pollworkers will not be sufficiently trained to know which IDs are acceptable (particularly in states that accept a range of federal, state, and other IDs), which voters, if any, are exempt from the requirement, the procedures to be followed if a voter lacks the proper ID, and how to interpret an ID photograph, especially if the voter has changed in appearance in some way, such as hair color or facial hair. Pollworker training is one of several kinds of costs that state and local governments may incur in implementing voter ID requirements.

Such considerations suggest that implementation of new or newly modified voter ID requirements could increase the risk of polling-place problems, but that such risks can be mitigated through administrative preparation, training of pollworkers, and timely education of voters. According to survey data, most local election officials believe that pollworker training and voter education can be important factors in preventing problems at the polling place, and many have said there is a need for improvement. While no systematic studies were available for this report on the effects of changes in election procedures, examples can be found where problems are attributed to such changes.

Even after implementation issues have been addressed, the wide variation in voter ID requirements among the states may create difficulties for voters who move to a different state. Census data suggest that 8-10% of the U.S. population relocates to another state approximately every five years. In 2014, about 2.3% (7.3 million people) moved to a new state, with about 1.4% (4.4 million people) moving to a state with a different class of voter ID requirement (e.g., photo ID to nonphoto ID, no ID to photo ID).

Obtaining an ID

There is no universal voter ID that is used in the United States (including the voter registration card, which is mostly used to provide information for the voter rather than for identification). Acceptable forms of identification differ by state and may be obtained from agencies or other entities that vary among the states.

Voters who possess one of the acceptable IDs need not take any action except to bring it with them to the polling place. However, it is also possible that a voter may possess an approved ID that does not match the information in the voter's registration record, for example because of a recent name change due to marriage or divorce, which would require the voter to rectify the discrepancy. Or the ID might be of a type that is accepted, such as a tribal ID, but does not have information that may be required under state law, such as an address and date of birth.

In several studies published between 2007 and 2013 for five states, and one nationwide study from 2013, the percentage of registered voters with valid ID ranged from 80% to 95%. Some of the studies found that the percentage of voters with IDs was lower for some minority groups or for voters without regular access to vehicular transportation.

In the 12 states with strictly enforced ID requirements, voters who do not have an acceptable ID must secure one in order to cast a ballot. All 9 states with strictly enforced photo ID requirements as well as some others provide free IDs to voters who qualify.

It is not only the kinds of IDs accepted that may affect a voter's ability to cast a ballot, but also the kinds of information required to obtain an accepted ID. The voter may need to obtain one or more other documents first—such as a birth certificate, government-issued ID, or proof of residence such as a current utility bill—to apply successfully for a voter ID. The documents required vary among the states, may have associated costs, and may be difficult to obtain for some eligible voters. Whether such costs and other factors, such as difficulty in obtaining supporting documents, place an inappropriate burden on some voters, especially those who are poor, elderly, or members of minority groups, has been a subject of debate for several years.

Voters Who Do Not Have an Accepted ID

In states with strictly enforced voter ID requirements, except Missouri and North Dakota, voters who do not bring an accepted ID to the polling place may cast a provisional ballot. Such voters need to present required documentation at the county election office within a specified time period for the provisional ballot to be counted. One study found that in two states, Kansas and Tennessee, in the 2012 election, fewer than one in a thousand voters cast a provisional ballot because of ID problems, with fewer than half of those being counted. No information was available for this report on the application and impacts of that requirement in other states, however.

Impacts on Turnout and Voter Fraud

The term turnout refers in this report to the number of voters or the proportion of the electorate that votes in a given election. Definitions of the term voter fraud vary. Herein, the term comprises voter impersonation and illicit voter registration—namely, illegal activities that voter ID might potentially help to reduce. It does not include other electoral crimes such as vote buying.

Whatever their individual views on voter ID or other voting requirements, most observers would probably agree on these two goals:

1. All eligible voters should have equal opportunity to cast a ballot. 2. All necessary steps should be taken to protect the election process from fraud, abuse, and error at any stage.

Both of those goals are arguably essential to ensuring the integrity of elections, but they are sometimes thought of as conflicting. On the one hand, it may be reasonable to suppose that the more focus is placed on providing access to the ballot box for all eligible voters, the greater the risk that people who do not meet the criteria for eligibility—for example by reason of noncitizenship, nonresidence, or criminal history—will be improperly included on the voter rolls, or succeed in voting despite not being on the rolls.

Also, once a voter is registered, it may be reasonable to suppose that the less stringent the identification requirements at the polling place, the greater the risk that someone might successfully impersonate a legitimately registered voter either at the polling place or on an absentee or mail-in ballot. Voter ID laws would appear to be best suited to preventing voter impersonation rather than illicit registration. Some observers might argue, however, that voter ID requirements can serve as an additional line of defense against illicit or erroneous voter registration.

On the other hand, it may also be reasonable to suppose that the more focus is placed on preventing fraud and abuse, the greater the risk that people who do meet the fundamental criteria for eligibility will be improperly excluded from the voter rolls, or not succeed in voting despite being on the rolls. Such concerns have been raised especially for specific demographic groups such as elderly, poor, and minority voters. Some observers have proposed solutions that might reduce the risk of such a conflict, for example, by placing digital photographs of registered voters in electronic pollbooks, thereby eliminating the need for most voters to present separate identification documents.

It could be that the apparent conflict is in fact a false one—for example, changes to the election process aimed at increasing access or at decreasing fraud might not have significant effects on actual access and fraud—or that the impact of any particular measure that seems likely to be effective is in fact minimal. Some observers argue that examples of voter fraud at the polling place are rare. Some also claim that voter fraud is much more of a risk with absentee and mail-in voting than at the polling place. Among the 33 states with voter ID requirements, 8 apply those requirements to voters casting absentee or mail-in ballots. However, there does not appear to be sufficient information available to determine the degree to which more broadly applied ID requirements for absentee and mail-in voting would reduce the risk of fraud or how they would affect turnout.

In general, no broad consensus has emerged on how to interpret the data on voter fraud that exist. That uncertainty is not surprising, given the complexities of the election process, the difficulties of collecting data about it that are amenable to scientific analysis, the difficulty of controlling for the effects of various factors other than voter ID requirements, the relative recency of ID requirements in several states, variation among states in the stringency of the requirements, and other factors.

In addition, as with many aspects of election administration, the impact of any effect of voter ID requirements on the results of the election will depend on factors such as the closeness of the contest. For example, if the implementation of an ID requirement caused a change in turnout, either a reduction or an increase, of 2%, but the margin of victory for a contest was 5%, there would be no effect on the outcome of the election for that contest. In contrast, if the margin of victory were 1%, a 2% reduction in turnout might change the outcome.

The observed tendency for some demographic groups to vote more frequently for one major political party than another has raised questions for some commentators about the impacts of voter ID requirements that might affect turnout more for some groups than others. However, given the range of results found in various studies, no compelling consensus has yet emerged about the strength or direction of such impacts.

The lack of conclusive data may also help explain seemingly paradoxical views of election officials on voter ID. Two scientific surveys of local election officials in 2006 and 2008 found that on average the officials supported a photo ID requirement, but they believed it would have a negative effect on turnout. They also believed it would increase election security, even though they found voter fraud uncommon and not a serious problem in their jurisdictions.

A systematic approach to achieving the two goals discussed in this section would presumably include a risk analysis of all steps in the election process with respect to each goal. In recent elections, attention has shifted among different points in the process, although voter ID has been subject to significant legislative attention for several election cycles. But in the absence of systematic risk analyses, it is difficult to determine what points in the election process—voter registration, voting systems, polling place location and hours, pollworker training, voter identification, vote tabulation, or other steps—actually involve the greatest potential risks to election integrity with respect to fraud, access, and other factors, and therefore what priorities would be most effective for reducing those risks.

Concluding Observations

Given recent state legislative activity on photo ID, and identification requirements generally, it is likely that legislators in the states will continue to consider similar legislation in the future. According to the National Conference of State Legislatures (NCSL), more than 200 voter ID bills were considered in the states during legislative sessions in both the current (2015-2016), and previous (2013-2014) federal election cycles, although that is a significant decrease from the more than 300 bills considered in the preceding cycle (2011-2012). Further action in the courts and the Department of Justice should be expected as well on voter ID in response to the several new laws that have recently gone into effect.

The 2016 election may provide useful data on the implementation and performance of voter ID laws, data that Congress may choose to examine. As more experience is obtained with the impacts of the range of voter ID requirements in different states on both individual voters and elections, a consensus may emerge about the benefits and disadvantages of those requirements, including answers to questions such as the following:

Does attempted voter fraud occur frequently enough that it poses significant risk to the validity of the outcome of elections? Is there a significant difference in that risk for polling place versus absentee or mail-in voting? Do voter ID requirements significantly reduce or eliminate the chances of voter fraud? Do voter ID requirements in any states prevent a large enough number of legitimate voters from casting ballots to pose significant risk to the validity of the outcome of elections? Do those risks vary significantly depending on the type and stringency of the requirements?

In any case, voter ID is likely to continue to be a topic of significant interest well beyond the November 2016 election.

Appendix. State Voter ID Requirements

This appendix contains two tables describing ID requirements for in-person voting in the states that have voter ID requirements. Table A-1 covers states that require a voter to present a photo ID; Table A-2 covers states that require an ID that need not include a photograph.

The tables briefly summarize the major requirements for each state, describing

the types of IDs accepted, whether the requirements apply to absentee and mail-in voting as well as in-person balloting, exceptions to the ID requirements for specified classes of voters, the recourse available to voters who do not present an accepted ID, year of enactment of the requirement (for photo ID states) and additional information such as whether an expired ID will be accepted and whether the state makes an ID available without charge to qualified voters.

Specific types of accepted IDs (e.g., passport) are listed in the tables if they are specified in state law or guidance. A glossary of summary terms and abbreviations in the table (in addition to postal abbreviations, used for all states except Idaho) is below:

In both tables, states with names in italics (e.g., Alabama ) are categorized in this report as having a strictly enforced voter ID requirement. The states with names not in italics (e.g., Florida) are categorized as not having a strictly enforced requirement.