May 12, 2014

Comments to Virginia’s Proposed Voter ID Regulations

            I am writing on behalf of Advancement Project, a national civil rights organization with a strong history of working in collaboration with local partners on voting rights and election administration issues in Virginia.  Thank you for permitting me to submit comments on the proposed regulations relating to Virginia’s new photo ID law, 1VAC20-40-10 and  1VAC20-40-90.

            As an initial matter, Advancement Project has concerns about the implementation of photo ID as a new requirement to cast a ballot in Virginia.  Identification is already required for first-time voters, and the new photo ID requirement is likely to impose a barrier to voting for many Virginia citizens.  According to the State Board of Elections (SBE,) more than 300,000 active voters lack a photo ID issued by Virginia’s Department of Motor Vehicles.  Although these voters may have another form of acceptable ID, experience in other states has demonstrated that most voters who don’t have a driver’s license are unlikely to have another form of acceptable identification.  For example, in our recent case in Wisconsin, the court relied on evidence showing that African-American voters were 1.7 times less likely to have photo ID than White voters, and similarly, that Latino voters were 2.6 times less likely than White voters to have photo ID.  See Decision & Order, LULAC V. Deinenger, No. 12-CV-0185, 54 (E.D. Wis., April, 29, 2014).  In the national November 2012 Black Youth Project Quarterly Survey, Black youth reported that the lack of required identification prevented them from voting at nearly four times the rate of White youth (17.3% compared to 4.7%). Latino youth were also affected at higher rates than White youth (8.1% compared to 4.7%). See e.g., The Time Tax: America’s Newest Form of Disenfrachisement for Millenials at 9 (2013), available at: http://b.3cdn.net/advancement/ba719924e82b44bb92_14m6bgjh0.pdf.  In addition, we have serious concerns about the short time frame that these voters would have before the November election to actually obtain an ID.  Given the legislature’s and the SBE’s apparent underestimation of the number of voters who need ID, the lack of funding to provide for all voters without ID to get one before November, and the lack of funding for an education program, voters who lack ID will have very little time to a) learn about the need for photo ID and b) arrange to travel to the registrar’s office to get a photo ID.  Such barriers often-time have a disparate impact on voters of color.  The exclusive distribution through Registrars’ offices is problematic because voters who lack an acceptable ID, by definition, do not drive and transportation to one or perhaps two possible locations within the county can be difficult if not impossible.  As a result, the voter ID law has the real potential to disenfranchise thousands of voters.

            With our general concerns as a backdrop, we submit the following comments to the proposed regulations by section.

            1 VAC20-40-10.  The proposed regulation adds an additional definition section for “Voter photo identification card.”  We believe that the proposed language is misleading, because  pursuant to Virginia Code §24.2-404, the registrars will continue to issue voter registration cards for newly registered voters that indicate their polling place.  The photo voter registration cards are only for those who lack an acceptable ID.  Therefore, we would delete the word “official” in the definition to avoid this confusion.

            1VAC20-40-90.

                        A.4.  This section limits the photograph taking to “designated staff.”  We believe that substituting “designated person” would allow greater flexibility and more people to get IDs to voters.

                        B.    In this section,  a voter’s receipt of an ID will be delayed if the voter’s record is “materially inaccurate or incomplete.”  We are concerned that this term is undefined and could be interpreted very narrowly to deny ID to qualified voters.  We suggest that a section be added to clearly identify what missing information would prevent an ID from issuing.  Similarly, the format, contents, production and other details of the “temporary identification document” are not specified.  For example, it is unclear whether this document contains a photograph or not, or how it would be used at the polling place in an actual election. These important details should be specified in the regulation.

                        C.        A person who is unregistered should be able to apply for a photo ID at the same time the person applies to register.  Thus, we recommend changing the first sentence to “A person who is unregistered may apply for a voter photo identification card when submitting an application for voter registration.”

                        G.        We believe this section to be misleading and does not reflect current law.  To the extent that applications for photo ID are deemed “registration records,” then such records are indeed available for public inspection in certain circumstances.  Regardless of the characterization, we strongly urge the SBE to adopt a policy of disclosure rather than non disclosure.  A lack of transparency regarding these records means that the there is no accountability for registrars regarding issuing IDs. For example, the public will not be able to determine who and how many voters have applied for ID, whether the applications was rejected, whether the registrar insisted on some correction in the voter registration file, or some other issue that would delay or prevent issuance of an ID card.  In addition, since we suspect that the legislature and the SBE have underestimated the number of IDs that will be necessary, shielding the records from disclosure will prevent the public from knowing the true extent of the impact of the photo ID law.  We believe that transparency could be achieved by making the records available with social security number redacted to protect privacy.

            In addition to the suggested revisions above, we note that several issues are not addressed in these regulations.  For example, the regulations do not specify a deadline for delivery of identification cards to voters.  We understand that the cards will be delivered centrally from the SBE but it is unclear how long the process will take.  We suggest that regulations require that the voters be provided with a dated receipt that advises the voter when to expect receipt of their ID.  If the voter does not receive the ID within that time, the voter can then follow up with the SBE.  Further, the regulations should specify that the identification cards will be mailed to voters at the address on file with the registrar, if that is what is contemplated. The SBE should also follow up with voters in the case of mail that cannot be delivered, and this may require a return receipt system.  We further recommend that the regulations require registrars to provide poll worker training regarding the new IDs and how those IDs should be properly used at the polling place, to ensure compliance with state and federal voting rights protections.  Finally, we note that the regulations are silent on providing the application form or other instructions in any other language.  We strongly urge the SBE to translate all relevant materials and ensure that there is oral assistance in the voter outreach, education, and application process in Spanish and Asian languages so that the many limited-English proficient citizens living in the Commonwealth will have access to the instructions and application form.  Please feel free to contact us if you have any questions or need any further information.

Marian K. Schneider

Senior Attorney

Advancement Project

Tel. 610-644-1255

Fax.  610-644-1277

Cell. 610-420-0632

National office:

1220 L Street NW Suite 850

Washington DC 20005

202-728-9557

Cell: 610-420-0632

email: mschneider@advancementproject.org

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