The Common Cause complaint states,

The Colorado polling place identification requirements on their face unlawfully restrict the right to vote. As with the other methods of disenfranchisement in American history, such as literacy tests and poll taxes, the identification requirement presents barriers to voting and restricts voter participation. There are qualified electors in Colorado who do not have identification and requiring them to purchase identification is tantamount to requiring them to pay a poll tax. As a disproportionate number of racial and ethnic minority voters, the homeless, as well as voters with disabilities and certain religious objectors, do not have the required identification nor the financial means to acquire it, the burden of this requirement is likely to fall disproportionately and unfairly upon them.

Earlier this week, a federal judge ruled that the ID requirement does not violate HAVA, as HAVA allows the states to "stricter" with respect to ID requirements than the federal law is. Moreover, he said the rule does not represent a "significant, let alone severe, infringement on the right to vote, nor do they improperly discriminate between voters."

Ohio

On October 5, the League of Women Voters and other groups challenged in court a directive by the Secretary of State that if a first time voter who registered by mail does not have identification when voting, and that voter therefore votes on a provisional ballot, that ballot will not be counted unless the voter somehow produces ID by the end of Election Day. A federal judge ordered the Secretary of State to provide further details on what form of identification will suffice for first-time voters who did not provide sufficient identification when they registered by mail and, in response to a separate action, revise his directive regarding provisional ballots. Just yesterday, he upheld the ID requirement in itself because, he said, voters could comply with the requirement by verbally providing a drivers license number or the last four digits of the social security number.

However, when the Secretary submitted his revised order regarding the provisional ballot directive, the same judge responded by completely upbraiding him. He said, "The exigencies requiring the relief being ordered herein are due to the failure of the defendant to fulfill his duty not only to this Court, as its injunction directed him to do, but more importantly, to his failure to do his duty as Secretary of State to ensure that the election laws are upheld and enforced… The Proposed Directive remains as drastically under-inclusive as Directive 2004-33, and is every bit as much in violation of HAVA. The right to vote provisionally under HAVA is not limited to persons whose names are not on the rolls. That right is also extended to any individual who is told by an election official that he or she "is not eligible to vote."... By not even mentioning this group—the primary beneficiaries of HAVA's provisional voting provisions—Blackwell apparently seeks to accomplish the same result in Ohio in 2004 that occurred in Florida in 2000...."

Let me make this clear. HAVA specifically states that "[a]n individual who desires to vote in person" but does not have the requisite ID at the time (and who did not submit it when registering by mail) "may cast a provisional ballot. Then, the "election official at the polling place shall transmit the [provisional] ballot cast by the individual . . . to an appropriate state or local election official for prompt verification" and if that state or local official "determines that the individual is eligible under state law to vote, the individual's provisional ballot shall be counted as a vote in that election in accordance with state law."

Blackwell himself has acknowledged that under Ohio law eligibility to vote is satisfied by anyone over 18 has been a resident of the state and registered for 30 days and lives in the precinct with they wish to vote.

So this is very troubling and is made the more so because in Ohio, voter registration applications submitted by voter registration groups will be considered mail in votes and those voters will have to show ID at the polling site. Given the huge numbers of new voters registered in Ohio and across the country this year through voter registration drives, this too could lead to great disenfranchisement. It is highly likely that some people doing voter registration on the streets or door to door did not sufficiently notify voters of the ID requirement. Moreover, these voter registration drives have purposely concentrated on communities that are less likely to have ID in the first place - poor and minority neighborhoods.

New Mexico

This same issue arose and was the subject of litigation in New Mexico. New Mexico is following the HAVA requirement that only first time voters who register by mail need to show ID when registering or voting. Controversy arose over whether voters who had filled out registrations with voter registration groups should be considered to have "mailed in" their applications. Republicans said yes and filed suit to require the Secretary of State to so direct; Democrats said no. Just a month before the election, a state supreme court ruled that voters who signed up through a voter registration drive were not mail in voters and thus were exempt from the voter ID requirement.

BATTLES IN THE LEGISLATURE

In Mississippi, a state with a long history of creating hurdles for minority voters, a bitterly partisan dispute over enacting a voter ID requirement for all voters-not just the narrow group identified in HAVA- rekindled old conflicts so prevalent in the South about racial discrimination at the polls. Most white legislators argued that this is a simple anti-fraud measure. But African-American legislators reminded their colleagues of the barriers minority voters have had to overcome throughout American history, especially in the South, such as poll taxes and literacy tests. The voter identification requirement, they said, represents a new obstacle that is likely to fall disproportionately on minority voters.

Mississippi blacks remember that as recently as 1993, the governor wanted to require people registering under the new motor-voter law-intended to make registration easier for minorities-to show identification. Indeed, Mississippi was the last state to enact motor voter as a result of this dispute.
The battle continued to rage in the Mississippi Legislature this year without firm resolution. Under the current HAVA conformed rules, elections officials expect that over 40,000 Mississippians will be asked for identification on Election Day.

BATTLES BETWEEN LEGISLATURES AND GOVERNORS

The ID issue has also caused rifts between governors and legislatures. Governors in three states-Arizona, Iowa and Kansas-vetoed legislation in 2003 that would have required all voters to present identification at the polls. All three governors were Democrats.
When Democratic Gov. Janet Napolitano of Arizona vetoed such legislation, she was applauded by the Latino community in particular. She said that it would not deter fraud, as Republicans asserted, but rather would deter voter participation.

During legislative debate, Democratic lawmakers said the requirement could reduce turnout among voters, particularly minorities and elderly voters who don't carry identification.

Napolitano told a Hispanic audience that combating voter fraud "was not the real reason that bill was passed, and you know that I'm right about that." Rep. Steve Gallardo, D-Phoenix, told the audience that the bill's "sole intent is aimed solely at the Latino community" and the right to vote.

A proposal for universal ID was back in the legislature this year. The main sponsor of the bill said he thought it was necessary because there is a general fear that non-U.S. citizens are voting.

CONCLUSION

As these examples start to demonstrate, there are many ways the ID requirement can be used to disqualify people from voting. For example, poll workers might—purposely or inadvertently—fail to give voters the complete list of IDs HAVA allows the voter to present. Even in the press, you routinely read stories that say voters will have to show a photo ID at the polls, or that it has to be a driver's license, which just is not true.

In theory, any person who cannot present acceptable identification is supposed to be offered an affidavit or provisional ballot. But that may not happen—as in the South Dakota case—or even if it does, as we are seeing, depending on the state, that ballot might not be counted.

In addition, some voters simply may not have the kind of identification required by the law. For example, it is not unusual for only one spouse to be listed on household bills or for low-income people, senior citizens, people with disabilities and students not to have driver's licenses, bank accounts or paychecks.

Finally, there has long been concern among civil rights advocates that election officials and poll workers might selectively enforce the Help America Vote Act identification provision-say by only asking minority voters to produce documentation. As we saw in Cleveland and South Dakota, this may have already happened. And with all the ugly stories now coming out about voter intimidation taking place, including here in Florida, before the election has even begun, it is not hard to imagine this happening.

So what is the answer to those who say that the ID requirement is necessary to fight fraud? First, available evidence suggests that the incidence of election fraud is minimal in the U.S., and rarely affects elections outcomes. More important, we should focus on alternative ways to combat what fraud there is. For example,

• States can reduce the potential for fraud by integrating and computerizing state voter registration records, as mandated by the Help America Vote Act. By integrating all local lists, duplicates are easier to identify and remove. States can more easily coordinate records with other state-held records, such as driver's licenses. Florida plans to create such a statewide database but, like most states, has opted into the federal waiver until 2006 to complete the task.
  
• Reducing the role of partisan officials in election administration has been found to decrease the chances of fraud and also helps create more professionalized election administration. You in Florida know only too well how the partisanship of elections officials can actually taint or create the appearance of fraud in an election. A few states have made strides toward reducing partisan control of elections by having bipartisan state elections boards, but an even better practice would be the adoption of nonpartisan state elections boards.
  
• If elections officials feel they must have an ID requirement, they can spell out in their implementation rules the many types of documents that can be construed to meet this requirement. In California, for example, the Secretary of State has stated that acceptable ID includes such items as a student ID card, public housing ID card, drug prescription or tax return

In the meantime, all of this underscores what is the most important task we have before us between now and Election Day: to educate voters as to the ID requirements in their particular state and ensure every voter know the right polling place to go to vote.

Tova Andrea Wang is a program officer and Democracy Fellow at The Century Foundation. She is most recently the author of an issue brief entitled Playing Games with Democracy, on how the Help America Vote Act is being used to disenfranchise voters.