by Dominick Schirripa

As a response/follow up to Mr. Filer's registration concerns (as expressed in his 10 September 'vox Populi'), I wonder if you feel that there is no role for the federal government in the issue. I agree that the Constitution would appear to leave the issue virtually entirely to the states. But the Voting Rights Act, and the Constitution itself, have been used to justify interference by Congress and the federal courts into even the election of purely state officials (the Supreme Court long ago declared that a state must apportion both houses of its legislature according to equally populated districts, thereby eliminating the use of Senates modeled on the US Senate and based on political subdivisions). I do not see why the utter failure of state election officials to even ask for a picture ID when registering could not be seen as a violation of some or other portion of the Constitution or Voting Rights Act (especially since double voting can occur). I can't even mail a package without affixing a return address to it and showing the postal worker ID.

I would guess that many states would justify the loose requirements on the idea of expanding the franchise and increasing democratic participation. Yet many of these same states have some of the most draconian and strict ballot access laws that effectively prevent anybody but the two major parties from fielding candidates. Seems somewhat incongruous (at best - at worst it is hypocrisy).

Would a federal statute requiring state officials to at least request a picture ID before a person registers and/or votes, be impermissible, or even so offensive?

Dominick Schirripa,
New York, NY

Mr. Berg-Andersson responds:

Mr. Schirripa asks an important question at the end of his 'vox Populi'-- to repeat it: "Would a federal statute requiring state officials to at least request a picture ID before a person registers and/or votes, be impermissible, or even so offensive?"

Let's look at the issue of "impermissibility" first:

The United States Constitution, of course, specifically gives Congress power to override State legislation as to "[t]he Times, Places and Manner of holding" Federal Elections (Article I, Section 4, clause 1) and this has been judicially construed so as to allow Congress to pass legislation such as the Voting Rights Act of 1965- although there are limitations on this power, as discussed within the various opinions within the U.S. Supreme Court in the case of Oregon v. Mitchell [400 U.S. 112 (1970)]. The legal dispute at hand in that case was decided as follows: by a 5-4 majority, the Court said that Congress did have power to decide the age requirements (in this case, reduce the voting age from 21 to 18 nationwide) for Federal elections; however, by a likewise 5-4 vote, the Court also said that Congress had no power to compel a State to adopt 18 as the voting age for State and local elections. This, obviously, led directly to the adoption of the 26th Amendment empowering 18 year olds to vote in all American elections the following year.

Now, it might have been rather interesting to have seen what would have transpired had, instead, the 26th Amendment never been ratified. After all, to take an obvious instance, the reason States moved the date of their State (if not also local) elections to the Federal date of "first Tuesday after the first Monday in November" during the period from this date having been mandated for Congressional elections beginning with the elections for the 46th Congress in 1878 into the mid-20th Century (Maine being the last State holding its State elections in the same [even-numbered] year as Congressional elections on a different day than the Federal one, a practice that State abandoned in the mid-1950s [Louisiana continues to hold State elections on a different day, but in an odd-numbered year]) was because a State holding two separate General Elections was proving too inconvenient, where not also too costly.

No constitutional provision was either involved or invoked in this otherwise voluntary shift by the States in question, simply the essence of gentle persuasion or coercion (depending on one's point of view) by Congress acting solely in relation to non-State elections, over which it clearly had power. Might it not have proven to be as inconvenient or costly for States to have to maintain and enforce, in effect, two separate rolls of voters- one for those over 21 permitted to vote in all elections and another for those between 18 and 21 only allowed to vote in Federal elections? Might States have, thus, been encouraged, even absent a 26th Amendment, to lower the voting age for State and local elections to 18 in the same way they were induced to adopt the November General Election date?

I'm not altogether sure if Congress can legally force States to check photo IDs at either the time of registration or at the polling booth or both; then again, I'm not an attorney, nor am I a recognized authority on Election Law: my politicolegal "gut"- as a "John Q. Citizen" who, although a legal layman, has learned at least a bit more than most laymen about all this stuff (as well as a "John Q. Citizen" who then utilizes the Internet to share this knowledge via the imprimatur of being the chief Commentator for 'The Green Papers')- tells me that Congress can pass at least some such legislation (as a constitutional regulation of, here, one "manner" of holding elections). Assuming- if only for sake of this argument- that I am correct here, the question then becomes: would Congress necessarily so act?

Now we have to turn to the notion of "offensiveness". I'm not sure in exactly which context Mr. Schirripa used the term: for instance, did he mean "legally offensive" (as in "offensive to the Constitution"- in which case I have already addressed this)? Let's assume, instead, that he meant, instead, "offensive to public sensibility"-- that is, "against the clear political Will of the 'bell curve' of the American People".

The principal problem with Federal legislation mandating the presentation of a photo ID in order to register to vote, if not also actually vote, is that it gets intertwined with the whole controversial issue of national identity cards. After all, not every State has the same type of photo driver's license, not everyone has a driver's license (or a passport or an employee identification tag, etc.). Given my own feeling that Congress does have power to require a photo ID to at least register to vote, one would then have to assume that Congress would also have the power to standardize such photo IDs as would be acceptable (under the Necessary and Proper clause of the U.S. Constitution [Article I, Section 8, clause 18], which gives Congress power "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its powers). Simply put, wouldn't Congress have to define what constitutes a valid photo ID? and what does one do about those who don't happen to have a photo ID that would fit the definition? Wouldn't Congress then be requiring people to have in their possession what would constitute, in effect, a national ID?

In the end, though, the issue is not really one of regulation but, rather- as Mr. Filer himself pointed out, enforcement.

Take the Moter Voter Act of 1993, for one. The theory here was clearly that one should very easily be able to register to vote and, since most Americans have regular dealings with their State's Motor Vehicle authorities (under whatever name: here in New Jersey, we have recently replaced the Division of Motor Vehicles with the Motor Vehicle Commission, for example), they should be able to do so at the same time they register or re-register a vehicle, get or renew a driver's licence, etc. Clearly the idea here was that, since the Motor Vehicle authorities would (hopefully! [;-)]) be checking identification, birthdates, etc. anyway, this could well act as a "check" on abuses re: voter registration.

I have absolutely no problem with this concept in and of itself: indeed, I was an early supporter of the Motor Voter Bill while it was being debated in Congress before its passage and signing into law by President Clinton. But, from what I have been told of late, "Motor Voter" in California- to take but one State as an evidently egregious example- has turned into a virtual "free for all" with, for instance, voter registration tables popping up like mushrooms all over that State over the past decade and making abuses (such as the registration of non-citizens as voters) far too likely. In my view, it is not the law itself that is the problem, it is the flawed execution of that law and evident lack of strong enforcement against violations of that law that is the principal issue here.

Thus, I am not sure that simply adopting a Federal statute mandating photo ID checks upon at least registration is the fullest possible answer- for one would have to then make sure that such photo ID checks actually occur. My question would be: why isn't something along these lines not being done on the State level already? If, indeed, it was the clear intent of the Framers of the Constitution that- as much as possible- the regulation and conduct of American elections- even Federal elections- be left to the States, then the States- having such duty and responsibility as part and parcel of their inherent constitutional sovereignty- cannot at all escape blame for having "dropped the ball" here!