Objections to voter “verification” provisions are grounded in history as well as contemporary evidence. During their day, poll taxes and literacy tests, which were also said to protect against fraud and breed confidence in elections, had the direct effect of erecting a barrier to minority voters.

Civil Rights Divisions in all localities should actively and vigorously throw these laws out as they constitute violations of the Voting Rights Act, intervening to preempt discriminatory voter identification provisions which, if implemented, constitute inflexible measures for screening prospective voters and mandating government-issued identification at the polls. These burdensome identification requirements fall well within the historical line of barriers to the ballot box and should be subject to intense scrutiny during the Voting Rights Act Section 5 (preclearance) process and further review under Section 2 of the Act as a discriminatory voting practice or procedure (42 U.S.C. ¡ì 1973b).

Section 5 of the Voting Rights Act (42 U.S.C.A. ¡ì 1973c) was passed for the express purpose of ensuring that jurisdictions with a history of discrimination against minority voters would be subject to vigorous oversight by the Justice Department and guaranteeing that this terrible history would never be repeated. Proposed new voter identification provisions are covered by Section 5 and are subject to immediate review. Under Section 5, any change with respect to voting in a covered jurisdiction – or any political subunit within it – cannot legally be enforced unless and until the jurisdiction first obtains preclearance. Further, preclearance requires proof that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group.

Poll taxes and literacy tests, which were also said to protect against fraud and breed confidence in elections had the direct effect of erecting a barrier to minority voters. The Voting Rights Act of 1965 specifically outlawed these and other similar devices because they could be arbitrarily administered by local registrars and state officials in a discriminatory manner. Requiring government-issued identification at the polling place inevitably creates similar barriers and hurdles for racial and ethnic minority voters and has a chilling effect on voter participation.

The negative effect of these provisions has been widely recognized at the state and federal level.
The Federal Elections Commission noted in its 1997 report to Congress that identification entails major expenses, both initially and in maintenance, and presents an undue and potentially discriminatory burden on citizens in exercising their basic right to vote. The burden of this requirement falls disproportionately and unfairly upon racial and ethnic minority voters, as well as voters with disabilities, since a disproportionate number have neither identification nor the financial means to acquire it.

On November 5, 2001 a federal court prohibited the use of an identification requirement, with an alternative signature attestation option, at the polls in Lawrence, Massachusetts. Both the Department and private plaintiffs argued, and the court found, that “the burden imposed by this requirement will fall disproportionately on the Latin American community, thereby violating Section 2 of the Voting Rights Act, 42 U.S.C. ¡ì 1973.”

The Department of Justice has taken issue with identification requirements for having a discriminatory impact on minority voters. In the City of Lawrence case, the Department noted that, “our experience in jurisdictions around the country suggests that minority voters – especially those who do not have the required identification with them at the polls …may be disproportionately disadvantaged by such (identification) requirements, either by difficulties at the polling place or by fears of such mishaps that make them unwilling to go to the polls.

In a directly analogous case, the Department objected to the use of photo identification requirements without also permitting a signature attestation for first time voters under Section 5 of the Voting Rights Act because it had a disparate impact on minority electoral participation. Since black voters were found four to five times less likely to have photo identification, the Department believed that this requirement would have a “retrogressive effect on the opportunities of black voters” and would likely “have a disproportionately adverse impact on black voters in the state.”

There are many voters who simply do not have identification and requiring them to purchase identification would be tantamount to requiring them to pay a poll tax. Moreover, the burden of this requirement falls disproportionately and unfairly upon racial and ethnic minority voters, as well as voters with disabilities, since a disproportionate number have neither identification nor the financial means to acquire it. A burden such as this, which disproportionately affects minorities, would clearly be retrogressive under Section 5 and not subject to preclearance.