These comments are submitted on behalf of Advancement Project, a national, non-partisan, civil rights and racial justice organization. Advancement Project’s Voter Protection Program seeks to remove obstacles to voting for voters of color through, among other methods, voter education and advocacy in partnership with community organizations. We have worked with community partners on these issues in the Commonwealth of Virginia since 2001.  As discussed further below, Advancement Project opposes changing the current definition of “valid” in 1VAC20-40-10 because a) excluding expired IDs will result in disenfranchising voters; b)  the changes could create confusion among poll workers who must implement the photo ID law; and c) expiration dates are unnecessary for determining identity.   

            The proposed changes will have the effect of excluding photo IDs that have an expiration date and that have expired more than 30 days before the election. Photo IDs issued without expiration dates, like many military ID cards, college IDs and all Veterans Administration photo IDs will be unaffected.   Thus, Virginians who have driver’s licenses but no longer drive or have non-driver IDs that are expired will no longer have an acceptable ID and risk disenfranchisement.  Experience in other states has shown that when voters with expired IDs cannot use those IDs, the number of potentially disenfranchised voters doubles. For example, in Pennsylvania, analysis of the voter registration database revealed that more than one half of voters without a Pennsylvania Department of Motor Vehicle photo ID lacked one only because their ID was expired.  See Siskin, B., Report in the matter of Applewhite v. Commonwealth of Pennsylvania, July 2013 at 5, 30 and Table 1, available at http://www.advancementproject.org/pages/pennsylvania-vpp.  Moreover, voters of color are more likely to lack an acceptable ID, including an expired one.  Id. at 16-17,  and Table 2.  See also Jon C. Rogowski & Cathy J. Cohen, Democracy Remixed: Black Youth and the Future of American Politics: Black and Latino Youth Disproportionately Affected by Voter
Identification Laws in the 2012 Election 2-3, 5 (Feb. 28, 2013) (young voters of color less likely than white peers to possess acceptable ID and more likely to be asked to show ID than white peers), available at http://research.blackyouthproject.com/files/2013/03/voter-ID-laws-feb28.pdf.
         Second, the technical definition of the term “valid” in the proposed regulations of “having legal effect, legally or officially acceptable or of binding force” will be difficult if not impossible for poll workers in all of Virginia’s precincts to apply in a standardized, nondiscriminatory manner. The rule requires poll workers, who are likely not lawyers, to determine the legal significance of photo ID in a context wholly unrelated to the context in which the ID was issued.  The determination of whether a particular ID is “legally acceptable” could take some time at the check-in table on Election Day and create long lines while poll workers struggle to decide the issue. In addition, making this change only three months before Election Day is likely to add to the confusion inherent in such a vague standard, for poll workers and the millions of voters they serve.

            Finally, Advancement Project agrees with the many commenters who stated that an expiration date is not necessary for determining identity.  The current regulations are appropriate: as long as the photograph reasonably resembles the person who is standing in front of the election official, the photo ID will have served its purpose of identifying the individual.  The current regulations are consistent with judicial treatment of voter photo IDs recently. See Applewhite v. Com., 330 M.D. 2012, 2014 WL 184988 at *22 (Pa. Commw. Ct. Jan. 17, 2014)(holding that there is no “reasonable basis” for a voter photo ID to contain an expiration date and noting that Pennsylvania state officials conceded that an expiration date is “completely unrelated to confirming a voter's identity.”)

            The Virginia General Assembly did not define the term “valid” for purposes of the photo ID law and specifically did not require expiration dates on photo IDs in the statute. The omission of any expiration date requirement demonstrates that the legislature did not intend that expiration dates were a necessary component of photo IDs for voting. As other commenters have pointed out, the new photo voter ID issued by the general registrars will not contain an expiration date. Consequently, it is entirely appropriate and within the powers of the Board to adopt a regulation that clarifies the statute and removes an arbitrary distinction among IDs based on  whether an ID has an expiration date or is expired.