Dear State Board of Elections:

I write in opposition to the proposed amendment to 1 Va. Admin. Code § 20-40-10 concerning the definition of “valid” for acceptable forms of photo identification for voting.  My comments are submitted in my personal capacity only.

The existing definition of “valid” adopted by the State Board of Elections (SBE) on June 10, 2014, should be retained.  That definition provides: 

‘Valid’ for all purposes related to voter identification shall mean documents containing the name and photograph of the voter appearing to be genuinely issued by the agency or issuing entity appearing upon the document where the bearer of the document reasonably appears to be the person whose photograph is contained thereon.  Other data contained on the document, including but not limited to expiration date, shall not be considered in determining the validity of the document.

The proposed modification would, inter alia, delete the final sentence of the existing regulation and replace it the following sentence:  “Such documents shall be accepted up to 30 days after expiration.”  This proposed modification to the existing regulation is unsound for several reasons, including its lack of connection to an important governmental objective and its potential for creating widespread confusion among both voters and poll workers.

First, prohibiting voters from relying on validly-issued-but-expired forms of voter identification does not advance SB 1256’s purported justification of preventing voter fraud.  Photo identification laws prevent against only one type of election-related fraud:  in-person voter fraud, which occurs when a person casts or attempts to cast a ballot in another person’s name.  While the prevention of in-person voter fraud is a legitimate state interest, as demonstrated by a comprehensive study by the Brennan Center for Justice, acts of in-person voter fraud are extremely rare—indeed, a voter is more likely to be struck by lightning in any given year than to have someone else cast or attempt to cast a vote in their name.  As a recent federal court explained in striking down Wisconsin’s similar photo identification law, “virtually no voter impersonation occurs” and “it is exceedingly unlikely that voter impersonation will become a problem . . . in the foreseeable future.”  Frank v. Walker, No. 11–CV–128, 2014 WL 1775432, at *6 (E.D. Wis. Apr. 29, 2014).  Moreover, as explained in the comments submitted by a number of voter registrars throughout the commonwealth (Judy Brown, General Registrar for Loudoun County; Carolyn Sherayko General Registrar for City of Lynchburg; and Linda Lindberg, Registrar writing on behalf of the Arlington Electoral Board), even a validly-issued-but-expired form of photo identification can serve the purpose of demonstrating that a person who attempts to cast a ballot is, in fact, that person.  There is nothing about an expired identification that makes it inherently unreliable for proving identification.   

Second, the proposed change may cause confusion among both voters and poll workers.  According to reports, only $200,000/year has been allocated for voter education and outreach about the requirements of Virginia's photo identification law.  This represents an expenditure of less than 4 cents per registered voter.   In light of this minimal funding to educate the general public, making a change to the law, especially after it has gone into effect, will inevitably lead to voter confusion.  As demonstrated by a recent decision striking down Pennsylvania’s similar photo identification law, belated changes to photo identification requirements can result in significant voter confusion that infringes upon the fundamental right to vote.  Applewhite v. Pa., 2014 WL 184988 (Pa. Commw. Ct. Jan. 17, 2014).  In addition, because not all of the forms of acceptable identification included in SB 1256 may have expiration dates (e.g., student identifications cards issued by some institutions of higher education in Virginia), changing the definition of “valid” to encompass “unexpired” identification may cause election administration problems, including potential inconsistent treatment of such photo identification by poll workers throughout the Commonwealth.   

In sum, the State Board of Elections should reject the last-minute proposed change to the definition of “valid” in 1 Va. Admin Code. § 20-40-10 and permit validly-issue-but-expired forms of photo identification to be accepted at the polls.

Sincerely,

Christopher B. Seaman

Assistant Professor of Law, Washington and Lee University