The Case for Photo ID at the Polls, Answered Point by Point Against Its Critics

You need a photo ID to board a plane, pick up a prescription, open a bank account, buy cold medicine, check into a hotel and, in some places, return a sweater. You do not need one, in several states, to choose who will write the laws, set the taxes and command the armed forces. Whether that is a sensible arrangement is a fair question. It is also a question that gets answered, far too often, with slogans instead of arguments.

So here is an argument. It makes no claim about the outcome of any past election. It does not claim that fraud is rampant. It makes a narrower case that is harder to dismiss: a photo ID rule, done properly, is a modest and reasonable way to run an orderly election and to earn public confidence in the result. I will define the policy, state the argument in numbered premises, give the objection its strongest form and then answer it.

Defining the policy

Terms first. A photo ID requirement is a rule that a voter casting a ballot in person must show a government-issued identification document with a photograph, and that a voter who cannot do so must take some further step before the vote counts. Nearly everything of importance lives in the details of that second clause.

Rules differ widely. A strict photo ID law requires the voter to show ID on the spot or follow up afterward for the ballot to count. A non-strict law lets a voter without ID sign an affidavit and vote. Some states accept a long list of documents, such as driver's licenses, passports, military IDs and tribal IDs. Some add student IDs. Some provide a free state ID card to anyone who asks. A photo ID law with no free card and no fallback is a very different law from one that has both, and a fair debate keeps them apart.

Federal law already requires ID in some cases. The Help America Vote Act of 2002 requires a first-time voter who registered by mail to show identification, either at registration or when voting. So the question is not whether identification has a place in American elections. It is how much, and in what form.

The Carter-Baker Commission

The best place to begin is not with a partisan. In 2005 the Commission on Federal Election Reform, chaired by former President Jimmy Carter and former Secretary of State James Baker, issued a report on how to improve American elections. It was a bipartisan group, and its recommendations ranged widely, from voter registration to absentee ballots to paper trails for electronic machines.

On identification the Commission recommended that voters show a photo ID at the polls, specifically the federal REAL ID or a comparable document, and it paired that recommendation with a condition that matters: states should make sure every eligible voter can get one. The Commission urged states to provide free IDs and to take an active role in helping people obtain the needed documents. The package was ID plus access. A commission of that stature, led by a Democratic former president, endorsed the proposal, which makes it hard to dismiss the proposal as a partisan trick.

The argument in numbered premises

Here is the case in the form I find clearest.

1. A legitimate election requires that each eligible voter vote once and that ineligible people do not vote. Nobody disputes this. It is the definition of a fair election.
2. To enforce that requirement, officials must be able to tell who is voting. At a polling place, the only way to do that without trusting the claim on its face is to check some form of identification. A poll worker who matches a face to a name is doing what a clerk does when you buy a bottle of wine.
3. A photo is the strongest simple identifier. A name and an address can be known by someone other than the voter. A signature can be forged, and comparing signatures is a skill poll workers have little training to perform. A face is hard to share.
4. The legitimacy of a result depends on public confidence, and confidence depends on visible safeguards. This is the point I want to press. Even if impersonation at the polls is rare, voters who see no check on identity have less reason to trust the count. Confidence is not a luxury in a democracy. It is the thing that makes the loser accept the result and the winner govern with a mandate.
5. The burden of showing ID is small and can be made smaller. If the state offers a free ID, accepts a wide range of documents and provides a fallback for those who cannot comply, the burden on any voter falls close to zero.
6. Therefore, a photo ID requirement paired with free IDs and a fallback ballot serves a real public interest at very low cost to the voter.

Note what the argument does not say. It does not claim that millions of illegal ballots are being cast. It does not need to. Premises four and five carry it: a rule can be justified by the confidence it supports and the low cost it imposes, without a body count of fraud cases.

Crawford v. Marion County Election Board

The Supreme Court tested the idea in Crawford v. Marion County Election Board, decided on April 28, 2008. The case challenged an Indiana law passed in 2005 that required in-person voters to present a government-issued photo ID. It was among the strictest laws in the country at the time.

Indiana's law had several features that mattered to the Court. A voter without ID could cast a provisional ballot and then, within about ten days, visit a designated government office to show an ID or to sign a statement that they could not afford one. The state offered a free photo ID through its Bureau of Motor Vehicles.

The challengers brought a facial challenge, which asks a court to strike the law down entirely rather than as applied to a particular voter. The Court rejected it, by a vote of six to three on the judgment. Justice John Paul Stevens, writing for a plurality of three justices (joined by Chief Justice Roberts and Justice Kennedy), held that the state's interests were legitimate and sufficient. Three other members, led by Justice Scalia, agreed with the result on a somewhat different rationale, one that looked less at the burden on any single voter and more at whether the law was a reasonable, nondiscriminatory regulation. Three justices dissented, including Justices Souter, Ginsburg and Breyer.

I want to quote the Court's reasoning accurately, and it is worth being exact about what Justice Stevens did and did not say.

First, he accepted that Indiana's interest in deterring and detecting voter fraud was legitimate and he said so, but he also acknowledged something that opponents of ID laws like to point out: the record contained no evidence of in-person voter impersonation actually occurring in Indiana. He did not hide from that fact. He held that the state need not wait for fraud to occur before acting, and that the possibility was real enough in the nation's history to justify a preventive rule.

Second, he identified a separate interest that does not depend on fraud at all: safeguarding voter confidence. The Court recognized that public faith in the integrity of elections is itself a legitimate state interest, because it encourages participation. That is the fourth premise of the argument above, recognized by the Supreme Court in a plurality opinion.

Third, he weighed the burden. For most voters, who already hold a driver's license or another acceptable ID, the burden was minimal. For the small number who lacked ID, the burden of getting one, including gathering documents, was real but not heavy enough, on the record before the Court, to invalidate the law on its face.

That is a careful, narrow decision, and it should be described as such. Crawford does not say every ID law is constitutional. It says this one, with these safeguards, survived a facial challenge. A state that wants to follow it should copy the safeguards as well as the requirement.

The strongest objection, stated fairly

Now the other side. The best version of the objection runs like this: "A photo ID law solves a problem that barely exists, and it does so at the expense of real people. In-person impersonation, the only kind of fraud an ID can stop, is vanishingly rare. Meanwhile, some voters, disproportionately the poor, the elderly and people who do not drive, lack a current photo ID, and for them the cost of obtaining one is not trivial. They must find a birth certificate, travel to an office that may be far away, and pay fees for the underlying documents. A rule that blocks even a few thousand eligible voters to stop a handful of impostors fails any sensible cost-benefit test. And the supposed benefit, confidence, can be manufactured by the very people who claim to need it."

That is a serious argument. It rests on three claims: the fraud is rare, the burden falls unevenly and confidence is not a good enough reason. Each deserves a direct answer.

The answer, point by point

First, rarity is not the right test. Locks are rarely picked. We do not conclude that doors should be left open. A safeguard is justified by what it prevents, by what it costs and by what it signals, and the absence of evidence of impersonation is partly the absence of any means of detecting it. An impostor who walks in, gives a real name from the rolls and votes leaves no trace unless the real voter later shows up. A rule that makes that harder is a prudent one. And again, the argument does not depend on proof of widespread fraud. It depends on a sound election system that can demonstrate its own integrity.

Second, the burden is addressable, and a good law addresses it. This is the heart of the matter, and it is where the best version of the policy answers the best version of the objection. A law that includes the following provisions removes most of the burden it is accused of imposing.

• A free state ID card, available to any registered voter who does not already have one, with the underlying document fees waived.
• A wide list of accepted IDs, including those issued by tribes, the military, and in some states colleges.
• Outreach, so that voters know about the rule and the free card long before an election, which was part of the Carter-Baker package.
• A provisional ballot for anyone who arrives without ID, counted when the voter shows ID to the election office within a short period or signs an affidavit of a reasonable impediment.
• Mobile or extended hours for the office that issues cards, for people who cannot easily travel.

With those provisions in place, the question changes. The voter who lacks an ID is not turned away. The voter is told how to fix the problem, given the means to fix it and allowed to vote in the meantime. That is the structure Indiana had when the Supreme Court looked at it, and it is the structure the Commission recommended.

Third, confidence matters, and it is not a trick. Critics say that to justify ID by confidence is circular, since people lose confidence only because politicians tell them to. I think the argument runs the other way. Confidence responds to visible signs of reliability. A person who sees an official check a name against a face, and who sees that the process is the same for everyone, has a reason to trust the count. A person who sees no check has to take it on faith. Most of us, asked whether we would rather rely on a visible safeguard or a claim that none is needed, pick the safeguard.

There is also the matter of consistency. If an ID is reasonable for cashing a check, it is hard to say that it is an intolerable imposition for the most consequential act a citizen performs. The fairness argument cuts both ways. Treating the ballot as less important than a pharmacy pickup does not honor the franchise, it understates it. A democracy that checks your face for a sandwich-shop loyalty card and not for a ballot has its priorities upside down.

Fourth, the best way to settle a dispute over burden is to measure it. A state adopting an ID law should report, publicly, how many voters cast provisional ballots for lack of ID, how many cured them, how many free cards were issued and what the cost was. Conservatives should welcome that data. A policy we believe in should be able to withstand a count, and if the data show that eligible voters are being turned away, the law should be fixed.

The Founding and the history behind it

Why does any of this belong in a post about the Founders? Because the Constitution leaves the administration of elections largely to the states. Article I, Section 4, Clause 1 says: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." The states are the laboratories, and the proper place for an ID rule is a state legislature, which can adjust it to local conditions, learn from neighbors and be held to account by voters.

The founding generation also knew how important it was to keep the franchise honest. Their own states used various safeguards, from property qualifications to voice voting to registered lists, and fought constantly about them. The Constitution forbids certain discriminatory rules, in the 15th, 19th, 24th and 26th Amendments, and the Voting Rights Act enforces them. A photo ID rule can be applied in a discriminatory way, and if it is, the courts and the Justice Department have the power to stop it. That is the right model: a rule that applies to everyone, with the law standing ready to punish any abuse.

For the wider legal and historical setting of how ballots are secured, see From the Secret Ballot to HAVA, a Timeline of How Americans Came to Vote, and for how the Constitution divides the work between states and Congress, The Elections Clause Lets States Run Elections and Lets Congress Step In. The same logic of tidy, checkable rolls is covered in Clean Voter Rolls Are a Legal Duty, What the 1993 Motor Voter Law Requires, and proof of citizenship at registration is the subject of Only Citizens Vote, the Case for Proof of Citizenship When Registering.

What a fair-minded person should conclude

Let me put the verdict plainly. A photo ID requirement paired with free IDs, a wide list of accepted documents and a fallback ballot is a reasonable election rule. The Supreme Court upheld Indiana's version of it, a bipartisan commission has recommended it and the case for it rests on something honest: an orderly system that earns public trust. A photo ID requirement without those safeguards is a harder case, and conservatives should not defend it with the same confidence.

The argument also carries a responsibility. Those of us who favor ID have to do the part of the job that is not glamorous: pushing our state legislatures to fund the free cards, publish the data and keep the offices open. If we want the rule, we should own its fair administration. A rule defended by people who then do nothing to help a grandmother get her birth certificate is a rule that deserves the criticism it receives.

And the other side has a responsibility too. If you argue that ID laws are a barrier, then show the barrier: name the voters, count the ballots, and measure the cost. We will take the evidence seriously. What we cannot do, on either side, is substitute volume for facts.

The case in brief

1. A photo ID requirement is a modest rule that lets officials confirm that each voter is who he says he is, and it supports public confidence in the result.
2. The Carter-Baker Commission of 2005 recommended photo ID at the polls, paired with free IDs and outreach, and the Supreme Court upheld Indiana's law in Crawford v. Marion County Election Board (2008).
3. The best objection, that ID burdens poor and elderly voters, is real, and the answer is not to dismiss it but to remove the burden with free cards, a wide list of documents and provisional ballots.
4. The Constitution leaves election administration mainly to the states under Article I, Section 4, so the place to get an ID law right is the state legislature.
5. The case rests on administration and public confidence, not on any claim about past results.

What you can do: read your state's voter ID law on your secretary of state's website, find out where to get a free ID and tell your legislator what you think it needs.