The Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ Committee”) writes to offer comments regarding the State Board of Elections’ new regulation regarding voter photo ID. The Lawyers’ Committee is a nonpartisan, nonprofit organization, formed in 1963 at the request of President John F. Kennedy to involve the private bar in providing legal services to address racial discrimination. The principal mission of the Lawyers’ Committee is to secure equal justice under law, particularly in voting rights, criminal justice, community development, employment, educational opportunities, fair housing and fair lending, and immigration.

The Lawyers’ Committee opposes requiring Virginia residents to have photo identification to vote, as such a requirement is unnecessary, expensive, and threatens to disenfranchise thousands of eligible Virginia voters. As that requirement will go into effect on July 1^st, however, the Lawyers’ Committee stresses that regulations implementing the law must be clear and expand the opportunities available to voters to obtain photo identification, so as to minimize the negative impacts of the law. As discussed below, the Lawyers’ Committee has eight suggested changes to the proposed regulation on voter identification cards.

First, Section A(2) states that a voter may obtain a voter photo identification card if the “voter’s information is correct in the voter registration system.” However, it does not appear that “correct” is defined in the regulation. Therefore, the Lawyers' Committee recommends defining the term under “Definitions.”

Second, the Lawyers’ Committee suggests changes to Sections A(3) and A(4). These sections currently state that “[a] voter who does not have an acceptable form of identification” may obtain a voter photo identification card if, in addition to satisfying other requirements, “ the general registrar or the registrar’s designated staff” captures a photograph and the signature of the voter. The Lawyers’ Committee recommends changing the phrase “the general registrar or the registrar’s designated staff” to “the general registrar, the registrar’s designated staff, or other person.” Such a change would allow additional state staff and volunteers to handle the equipment and would maximize the opportunities available to Virginia residents to get photo identification.

Third, Section B states that “[a]ny voter applying for the voter photo identification card whose record in the voter registration system is materially inaccurate or incomplete will be issued a card after the information has been corrected and updated within the system.” However, this section does not require the registrar to notify these voters that their information is inaccurate or incomplete. Therefore, the Lawyers’ Committee recommends that this section be changed so that registrars are directed to alert voters with missing or inaccurate information that additional information is necessary before they can obtain a photo ID.

Fourth, Section C should be clarified by specifying that “[a] person who is unregistered may apply for a voter photo identification card when submitting an application for voter registration, and will be provided with the card upon approval of the submitted application for voter registration.” (additions in italics).

Fifth, Section D, which permits general registrars to solicit applicants for voter photo identification cards at locations other than their offices, should be changed so that it directs registrars to perform at least a minimum amount of outreach. Without a baseline requirement for outreach, the law risks disenfranchising voters in counties where registrars provide no outreach or extended hours. As currently written, the regulations may disenfranchise voters who are either unaware of the law or who are unable to travel to the registrar’s office during regular business hours, due to work or childcare obligations. The challenge will be particularly exacerbated in counties where the registrar’s office only operates on a part-time hours (registrar offices operate on a part-time basis in at least ten counties). Therefore, it is essential that the regulations include a requirement that registrars offer at least a minimum number of days with extended or weekend hours.

Sixth, Section E should specify that a person’s inclusion in the Department of Motor Vehicles’  database will not exclude them from being eligible to receive a voter photo identification card “so long as the person affirms he is not in current possession of the identification document.” (addition in italics).

Seventh, Section G which currently states that applications for photo identification cards shall be “unavailable for public inspection” should be rewritten so as to promote a policy of disclosure. §24.2-405 of the Code of Virginia states that the State Board may make lists of registered voters available to nonprofit organizations that promote voter participation and Section G of the regulations notes that applications for voter photo identification cards “shall be considered ‘registration records.’” Therefore, it is consistent with the intention of the Code of Virginia and the policy set forth in Section G to disclose these records consistent with the circumstances under which it releases voter registration records. A lack of transparency regarding these records would mean less accountability and prevent the public from determining how many voters have applied for ID, who they were, whether an application was rejected, or if there are any other issues preventing issuance of ID cards. 

In addition to the above changes, the Lawyers’ Committee also suggests that general registrars be required to provide voters who complete the application process for a photo identification card with a receipt with a number to call if they have questions or if they don’t receive their identification within 7-10 days.

The Lawyers’ Committee appreciates the opportunity to offer these comments and looks forward to working with the Virginia State Board of Elections to ensure that the regulations are clear and maximize the opportunities for Virginia voters to obtain photo identification.