A wave of states recently passed new laws requiring that citizens provide identification — sometimes photo ID — before they are allowed to vote. Advocates say the measures are necessary to combat voter fraud, but others say the new laws are the equivalent of “modern day poll taxes” that have the potential to disenfranchise millions of voters. We talk with civil rights experts about the measures, and with a Virginia lawmaker who has prosecuted voter fraud cases in the commonwealth.

Guests

  • Thomas Garrett Member, Virginia Senate (R-22nd District)
  • Nicole Austin-Hillery Director, Counsel, D.C. Office, Brennan Center for Justice, New York University
  • Abigail Thernstrom Vice-Chair (R), United States Commission on Civil Rights

Transcript

  • 12:06:41

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. The biggest battleground from this fall's elections may be the ones over the business that takes place at the ballot box itself. Thirty-three states now have laws on the books that require voters to provide some form of identification before they can cast a ballot.

  • 12:07:13

    MR. KOJO NNAMDISome have gone so far as to demand photo ID, while others, like Virginia, will allow other kinds of ID, like utility bills and handgun permits. Most of these new measures were passed in the name of combating voter fraud. But critics, including the attorney general of the United States, have charged that some of the requirements are the equivalent of modern-day poll taxes.

  • 12:07:36

    MR. KOJO NNAMDIOne study issued this week said that more than 10 million Americans live more than 10 miles from their nearest ID-issuing office and that low-income and minority voters in particular are at risk of being disenfranchised. Joining us to explore this legal landscape is Nicole Austin-Hillery, director and counsel of the D.C. office of the Brennan Center for Justice at New York University. Nicole Austin-Hillery, thank you for joining us.

  • 12:08:05

    MS. NICOLE AUSTIN-HILLERYThank you for having me, Kojo.

  • 12:08:07

    NNAMDIJoining us by phone from Virginia is Abigail Thernstrom, vice chair of the U.S. Commission on Civil Rights. Abigail Thernstrom, thank you for joining us.

  • 12:08:17

    MS. ABIGAIL THERNSTROMThank you for having me.

  • 12:08:18

    NNAMDIAlso joining us by phone is Thomas Garrett. He's a member of the Virginia Senate. He's a Republican and is the former Commonwealth's attorney for Louisa County. Sen. Garrett, thank you for joining us.

  • 12:08:30

    SEN. THOMAS GARRETTKojo, thank you for having me.

  • 12:08:32

    NNAMDIIf you'd like to join this conversation, you can call us at 800-433-8850. How do you feel about the idea of being required to provide identification at your polling place before you're allowed to vote? 800-433-8850. You can send us a tweet, @kojoshow, email to kojo@wamu.org, or go to our website, kojoshow.org, and join the conversation there.

  • 12:08:56

    NNAMDINicole, more than half the states now require ID to vote, but earlier this summer, your organization issued a report where you said that the 10 state laws with photo ID requirements are unprecedented and restrictive. Let's start from there. What in your view is the legal precedent when it comes to voter ID requirements?

  • 12:09:17

    AUSTIN-HILLERYWell, actually, Kojo, there really isn't a legal precedent. Prior to 2011, there were very few, if any, states that had such requirements. Under our laws, you previously were not required to show an ID, except when you voted for the very first time. Other than that, you could simply go to the polls and identify yourself, and you could cast your ballot. It has only been since 2011 that we've seen this onslaught of new laws, so it's really unprecedented.

  • 12:09:49

    AUSTIN-HILLERYAnd as you just mentioned, our report, the challenging of obtaining voter ID, really demonstrates that for many Americans it is quite difficult for them. For those who don't have the requisite IDs that some of these states are requiring, it's very difficult for many of them to actually get those IDs and to therefore adhere to these new requirements.

  • 12:10:08

    NNAMDIIs your issue the requirement for ID itself or is it more the requirement for ID that voters don't have?

  • 12:10:15

    AUSTIN-HILLERYIt is the latter, Kojo. The Brennan Center certainly thinks that we should stick to what our precedent has been in this country, which is that you don't have to show an ID when you go to vote. However, if states decide they want to require voter ID, our biggest concern is that states, many of them, are requiring ID that so many of their citizens simply do not have or that it will be very difficult for their citizens to have. So our question is, why require ID that so many people in your state simply don't have or will have a difficult time obtaining?

  • 12:10:50

    NNAMDISen. Garrett, the Virginia General Assembly produced a new law this year on this front, a law that does not require photo ID, but, before we get into what it does do specifically, why did you feel it was necessary to pass such a law in the first place?

  • 12:11:04

    GARRETTLet me back up a little bit, Kojo. I think that the lady from the Brennan Center misstated the law. There's actually been an ID requirement under federal law since the Help America Vote Act passed in 2001. So it's not 2011. It's 2001. The Help America Vote Act passed the United States Senate 95-to-0. And I don't know what brought bipartisan support is if it's not 95-0 with some abstentions and absentees. So, you know, that's for starters.

  • 12:11:37

    GARRETTThis is -- Virginia law is actually broader than the federal Help America Vote Act law, and it pretty much allows anything short of a pinkie swear or a letter from your mother to attest to your identification. Now, what Gov. McDonnell has done in Virginia is also direct the State Board of Elections to reissue, to reissue prior to this election a new voter ID card to every single registered voter.

  • 12:12:03

    GARRETTSo there's, you know, zero percent likelihood that you're a registered voter and you won't have received your voter ID card. But above and beyond that, the breadth of what's allowed by the Virginia law would include student ID. It would include library cards. It would include any identification issued by a federal, state or local entity to include your water bill, to include your gas bill, your electric bill, obviously, more traditional identifications, such as a driver's license, you know.

  • 12:12:36

    GARRETTThere's very little and by way of official documentation that's not included -- it was in the breadth of the Virginia law. But again, ID requirements have been part of the federal law now for over a decade. Again, as a lot of people know, the voter...

  • 12:12:51

    NNAMDIIf indeed, they have been part of the federal law for over a decade, they were passed after the disputed 2000 presidential election. I return to my previous question. Why did you feel it was necessary to pass these particular laws in Virginia?

  • 12:13:05

    GARRETTWell, anything you can do to protect the sanctity of the ballot ultimately comes down to this: Every single legally cast ballot should be worth exactly one vote. That means that any time any ballot is cast illegally, it waters down the franchise of American voters who are voting legally, and it's something of a tempest in a teapot to suggest that no illegal ballots are ever cast. I think probably I ended up on your show because when I was a prosecutor in Louisa County...

  • 12:13:36

    NNAMDIYou prosecuted at least two voter fraud cases. Would you say that the cases that you have prosecuted personally are emblematic, symptomatic of widespread problems within Virginia's electoral system that need fixing?

  • 12:13:50

    GARRETTWell, I mean, I know the state police investigations following the 2008 elections has confirmed over 200 cases, and that sounds like it's not that statistically significant a number until you consider that the closest statewide election in Virginia history was by 323 votes. So, you know, ultimately, there are, I believe, double digits pending voter cases in the city of Richmond. There's a lot more of that coming out in Charlottesville.

  • 12:14:14

    GARRETTWe had two in little old Louisa County. So, you know, the question of whether it's widespread or not comes one of how we define widespread, but ultimately, every single illegally cast ballot dilutes the franchise of those who are casting their ballots legally. So the goal here is not to keep people from voting. I would commend Gov. McDonnell for having restored more voter rights than any governor in Virginia history in short three years.

  • 12:14:41

    GARRETTAnd I would commend folks who have previously had their rights removed by virtue of a felony conviction or communication of mental incapacity. So certainly, go through the proper channels because you'll not be denied short of some incredible circumstances. But what we're talking about here is rule of law and protecting the sanctity of the vote.

  • 12:15:01

    NNAMDIIn case you're just joining us, we're talking about voter ID laws. That was Thomas Garrett speaking. He is a member of the Virginia Senate, a Republican and the former Commonwealth's attorney for Louisa County. In our Washington studio is Nicole Austin-Hillery, director and counsel of the D.C. office of the Brennan Center for Justice at New York University. We're taking your calls at 800-433-8850.

  • 12:15:24

    NNAMDIAbigail Thernstrom is vice chair of the U.S. Commission on Civil Rights. Abigail, it's worth noting that Virginia is one of the states that needs to receive pre-clearance under the Voting Rights Act before it can make any changes to its voting laws. How exactly is a state like Virginia affected by the Voting Rights Act today?

  • 12:15:42

    THERNSTROMWell, you just said how it was affected. That is if Virginia changes in any way its electoral procedures -- let's say it draws a new districting map to comply with new census data, the (word?) census data. That new districting map has to be approved by the Justice Department or the D.C. District Court. And that dates back to then 1965 act, and it's still with us, although we now have had many decades of racial progress, and it's not 1965 in America anymore.

  • 12:16:33

    NNAMDIThis is a big question. But what's your sense for the relevance and the necessity for those pieces of the Voting Rights Act today? You just said it's not 1965. We've made progress. Some people would infer that that means we no longer need those aspects of the Voting Rights Act?

  • 12:16:51

    THERNSTROMWell, I don't think we still need pre-clearance. We still have voting rights problems in this country. But I mean, for instance, we had voting rights problems in Ohio in the last presidential election. Ohio is not covered by the pre-clearance provision of the Voting Rights Act. I mean, we need to address the problems of 2012, not 1965. And pre-clearance is really a relic from a -- of a previous era. And I do think it's time for a change.

  • 12:17:32

    NNAMDINicole Austin-Hillery, a couple of questions for you. One, what are your own views or your organization's views on the ongoing necessity for pre-clearance laws? And, well, I'll get to the second question after you answer the first.

  • 12:17:44

    AUSTIN-HILLERYSure. Kojo, before I answer that, I just need to go back because I want to make sure that your listeners are very clear on a few things that Mr. Garrett said. Number one, I stated in the very beginning that the only ID requirement that existed prior to this newest onslaught of ID requirements in the state was one that said that you must show your ID when you are a first-time voter, and that is correct under HAVA. So I want to make sure that folks aren't confused by Mr. Garrett's response. Secondly, I want to talk about the cases that you asked Mr. Garrett about...

  • 12:18:19

    NNAMDINo. Allow me to clarify that. So you're saying that the federal law that he referred to, the law that was...

  • 12:18:24

    AUSTIN-HILLERYHAVA.

  • 12:18:24

    NNAMDI...passed after 2000 only requires ID for the first-time voter...

  • 12:18:29

    AUSTIN-HILLERYFor the first-time, yes.

  • 12:18:29

    NNAMDI...and not for every time a person votes?

  • 12:18:32

    AUSTIN-HILLERYExactly. And that is the Help America Vote Act...

  • 12:18:35

    NNAMDIOK, go ahead.

  • 12:18:35

    AUSTIN-HILLERY...commonly referred to as HAVA. So I wanted to clarify that. Secondly, with respect to the cases that you asked Mr. Garrett about that he prosecuted, I want to point out that those were cases, as I understand, that involved those who were formerly incarcerated in Virginia who registered to vote and then attempted to cast their vote. The voter ID requirement as is now required in Virginia would not have dealt with that kind of problem.

  • 12:19:03

    AUSTIN-HILLERYThe Brennan Center, like Mr. Garrett, very much wants to ensure that we stamp out voter fraud if and when it exists. We don't want to see any kind of fraud at the polls. However, in that instance, there were already laws and safeguards in place to guard against that kind of mistake. The elections administration officials have lists of individuals who were formerly incarcerated in a state like Virginia where you cannot vote but for special permission from the governor once you've been a felon.

  • 12:19:32

    AUSTIN-HILLERYThose safeguards are in place to ensure that those individuals are not voting. So the voter ID law that has been enacted in Virginia would not do anything to address that particular issue. And, lastly, I'd like to say that Mr. Garrett mentioned that there are so many easy ways for individuals in Virginia to adhere to this new law. I will say that in comparison to many of the other states, like Wisconsin, Texas, South Carolina, the Virginia law is not nearly as cumbersome.

  • 12:20:00

    AUSTIN-HILLERYHowever, in any instance where you change the voting laws, laws that many voters have been used to for many year, it often causes confusion and in many instances causes intimidation because voters feel like, well, what if I can't adhere to these new laws for some voters -- and we've done polling at the Brennan Center. Some voters have said, you know, this may cause me not to go the polls at all. So that's what we're concerned about.

  • 12:20:23

    AUSTIN-HILLERYAnd then to your question, Kojo, on the Voting Rights Act, I respectfully disagree with Mrs. Thernstrom. The Voting Rights Act was passed to ensure that protected classes of individuals would not be discriminated against in terms of voting. That law is still the law of the day. It's still relevant. When the law came up again, it was passed through a large bipartisan effort, and it was signed into law by President George Bush during the period in which it was reauthorized.

  • 12:20:57

    NNAMDI2006, reauthorized for another 25 years.

  • 12:20:59

    AUSTIN-HILLERYExactly, by a Republican president. And it was very clear to those bipartisan members of Congress then and it remains clear to us now that we still need those protections. It's evident in the fact that we have these voter ID laws that, for the most part, Kojo, have been enacted in states that have a history of discrimination in the voting booth, the very same states that are -- that must adhere to Section 5 of the Voting Rights Act that must have their changes to their laws pre-cleared. These are the states that have this history. So these concerns still exist and individuals still need protection.

  • 12:21:31

    NNAMDIThomas Garrett and Abigail Thernstrom, please hold your thought for a second 'cause we do have to take a short break. When we get back, we'll -- when we come back, we'll get to you -- all of those of you who have called. Also hold on, but the lines are now busy. So, if you'd like to join the conversation, go to our website, kojoshow.org, send us a tweet, @kojoshow, or email to kojo@wamu.org. We're discussing the controversy over voter ID laws. I'm Kojo Nnamdi.

  • 12:23:54

    NNAMDIWelcome back. We're talking about voter ID laws with Abigail Thernstrom, vice chair of the U.S. Commission on Civil Rights. Thomas Garrett is a member of the Virginia Senate. He's a Republican and is the former Commonwealth attorney for Louisa County. And Nicole Austin-Hillery, director and counsel of the D.C. office of the Brennan Center for Justice at New York University. Thomas Garrett, I'll start with you. No question, just a response.

  • 12:24:17

    GARRETTNo. I want to go back to something Ms. Austin-Hillery said a moment ago and that is that the Virginia voter ID law passed in 2012 wouldn't address the types of voter fraud that we saw in 2008, and she's right. However, House Bill 57 would, and what that does is essentially says that the State Board of Elections will provide the registrars luckily with the purge rolls, those people who are uneligible to vote, and that the registrars will then check those rolls prior to the election.

  • 12:24:51

    GARRETTThat had not been the law, believe it or not, up until last year. And so this is something that we're kind of taking across-the-board broad approach on in trying to make sure that we allow everyone who is properly allowed to vote the right and don't to the extent possible have people watering down our franchises by casting illegal or fraudulent ballots.

  • 12:25:14

    NNAMDIAbigail Thernstrom, you heard Nicole Austin-Hillery say that the Southern states that are subject to the pre-clearance laws are the most among the states who have passed these photo ID laws. You mentioned Ohio. What do you feel about these other states?

  • 12:25:31

    THERNSTROMWell, look, the South now actually -- it's not the South of 1965. The South is in the vanguard of a black political participation. And, of course, you are talking -- mainly, you're talking about minorities in the South. You're talking mainly about blacks, to some extent, Latinos as well. But mainly the South is still black and white. And when you look at voter participation in the states that are covered by Section 5, it is extremely high.

  • 12:26:09

    THERNSTROMIn some of the states, it's higher than that of whites. And I don't think the obstacle to voting, I mean, people do stay home from the polls all across the country for a variety of reasons. I mean, you know, we usually have about 50 percent of Americans participating in our presidential elections. I wish it were higher, but that is a fact. And I don't think it's because they are stopped from voting or discouraged from voting. They got other priorities or whatever. They don't...

  • 12:26:52

    NNAMDIWell, let us assume that these laws will do nothing to affect those people who are just not interested. But do you think they will have an effect on people who currently do vote?

  • 12:27:06

    THERNSTROMI really don't. I mean, Nicole says, well, it's going to make -- it's made voting more difficult. Yeah, well -- and when in her opening statement she says since 2011, a lot of these laws have come, been put in place. Yeah, well, since 2011, we've become a much more security-conscious nation. And ID is necessary for all sorts of activities. I mean, whether it's admission to a hospital or enrolling in federal benefits, welfare, whatever. I mean, the list is very long. You need ID.

  • 12:27:58

    NNAMDII'd like to get more specific, and I think Bill in Washington, D.C. can help to take us there. Bill, you're on the air. Go ahead, please.

  • 12:28:05

    BILLHi. Thanks for taking my call. I was just wondering if we have any actual specific information about the number of people who might be potentially disenfranchised by the new law assuming that they didn't get whatever IDs that they'd need.

  • 12:28:20

    NNAMDIAny statistics available, Nicole Austin-Hillery?

  • 12:28:23

    AUSTIN-HILLERYYes, Bill. I would refer you to our Brennan Center website, which is www.brennancenter.org. A report that we just released is entitled "The Challenge of Obtaining Voter ID." And what that report shows is it looks at statistically how many people will have a difficult time actually getting the type of ID that many of these states are requiring.

  • 12:28:46

    AUSTIN-HILLERYNow, because many of these laws aren't taking effect until we go into the November election, we don't yet have the statistics to show, OK, what actually did happen. But we certainly have the statistics to show how many people are going to have difficulty adhering to these new laws. And, Kojo, I just want to say something very quickly. You know, Ms. Thernstrom just said something that many proponents of voter ID are often cited as saying and this is this notion that ID is necessary for lots of activities in this country.

  • 12:29:16

    AUSTIN-HILLERYOne thing that we have to make very clear in terms of distinguishing the request for ID when you vote versus requesting ID when you go to the movies and you have to prove you're old enough to get into a rated R movie. Voting in this country is a right. It is not a privilege. There is no other instance in this country where we ask people to prove whom they are in order to exercise their right.

  • 12:29:40

    AUSTIN-HILLERYThis is a right guaranteed to all Americans, and they should not be asked once they've already registered to vote under the laws, once they already proven whom they are. They should not be asked to continue to go through the same steps each and every time they vote. So it's very necessary for people to understand this important distinction.

  • 12:29:56

    NNAMDIOn the other hand -- and Bill, thank you for your call -- here is Nick in Winchester, Va. Nick, your turn.

  • 12:30:02

    NICKHi. I don't want to get too deeply into the wage on this. But I am a former councilor officer, Foreign Service. And I've dealt with a number of issues of ID before. One, I disagree with Ms. -- with the lady who's speaking for the Brennan Center. We are required to show a document of identity if we board an airplane or if we enter the United States. Those are rights. You have a right to travel. You have to get on up their airplane and go where you want to.

  • 12:30:45

    NICKNow, a number of years ago, there was a terrorism threat. This was at early '80s. The Department of State suggested that because some people might be victims if it was known that they were born in Israel or certain other countries, maybe we should not put the place of birth. There is -- my boss wrote in and said, look, that would defeat the purpose of a document of identity. It says who you are, where you are born and when you were born.

  • 12:31:28

    NICKStep back one more step. In 2001, the government said the states should issue their own documents which should be secure. Presumably, if they were secure, if they were documents of identity, they could be used for anything, any purpose, legal or commercial. The states whined about the cost. The federal government could've simply said, you will do it, we'll worry about the cost later. But they didn't. So now we're back to the issue of all sorts of things. I'm sorry. I want to stop there because...

  • 12:32:10

    NNAMDIWe're limited in time, and I'd like to hear some of the responses. We also got this email from Roger, Thomas Garrett. Roger said, "This fake controversy is getting really tiresome. Simple fact, you need a government-issued photo ID to do many things in our post-9/11 world, and voting is far more important than most of these things. The often cited objection that a trip to an ID office is an onerous burden is preposterous. If those offices announce they were giving away money, wouldn't it be able to keep people at home?

  • 12:32:38

    NNAMDI"Finally, look at the other advanced societies in the world, and I'm certain you will discover most of them require photo ID." Thomas Garrett, how do you feel about those arguments?

  • 12:32:47

    STATE SENATOR THOMAS GARRETTWell, look, I mean, Ms. Austin-Hillery said a moment ago that the states that were putting those onerous burdens on voters were often or most often, I think she said, states covered by the voting rights acts, Southern states if you will. Alaska, Washington, Montana, North Dakota, South Dakota, Utah, Idaho, Michigan, Indiana, Ohio, Pennsylvania, Connecticut, Rhode Island, Delaware, all not voting rights states, all require an ID, specifically strict photo ID is required in Pennsylvania, Indiana and Kansas, and photo ID's required in Idaho, South Dakota and Michigan.

  • 12:33:20

    GARRETTSo, you know, this rubric that somehow the Voting Rights Act is protecting people, maybe we need to broaden the Voting Rights Act to include all 50 states. The next thing is for the gentleman, I believe, Bill from Washington, D.C., who asked about the number that would be disenfranchised. In Virginia, the number is zero. The governor has allocated money and ordered the state board to send brand-new IDs to people's homes, everyone who's registered to vote to the tune of millions of dollars 'cause it's the right thing to do.

  • 12:33:46

    GARRETTAnd so the ID's to you and I think we can address these problems. I think we're doing it well in Virginia, while protecting the sanctity of the ballot, also protecting people's right to access that ballot.

  • 12:33:56

    NNAMDIGot an email from Constance in Silver Spring, who writes, "Voter ID laws are worse than a poll tax. It's conceivable that you could have gotten the money to pay the poll tax, but you're totally out of luck if you live 50 miles from the court house or motor vehicle bureau and you don't have transportation or if you can't pay the fees to get your state ID or if you haven't even got a birth certificate to establish your identity."

  • 12:34:19

    NNAMDI"If the office where you get your ID is only open one day a month, et cetera, et cetera, voter ID laws are a transparent attempt to keep poor people, the Democrats and African-Americans from voting. It really is just that simple. Don't let all that whining about voter fraud fool you." To which you say what, first, Thomas Garrett and...

  • 12:34:36

    GARRETTKojo, we're sending the IDs to people's houses. I mean, the ID is coming to you, so there's no onerous burden to get in your car and go pick it up. There's -- you know, if you're registered, we're going to reissue those IDs to you, and I'm not -- I don't know this yet, but I wouldn't be surprised if it happened every single year. So, I mean, that's an interesting argument, except it flies in the face of the actual facts of the law in the Commonwealth of Virginia and...

  • 12:34:58

    NNAMDIAbigail Thernstrom, what do you feel about it if we were not simply taking about Virginia, the argument that was made by Constance in Silver Spring?

  • 12:35:06

    THERNSTROMWell, I mean, you need IDs for so many purposes that to say it's impossibly burdensome means your life in fundamental ways is restricted. I just -- I don't know whether it was about Virginia or Maryland, but it was in The Washington Post. You need an ID in order to go to a soup kitchen and...

  • 12:35:37

    NNAMDINicole Austin-Hillery, the notion that we're hearing here is that, look, getting an ID is really not that difficult, certainly won't be in the Commonwealth of Virginia. And we assume that the rest of the country -- people can get IDs. Who in your view will bear the burden of these new voter ID laws?

  • 12:35:57

    AUSTIN-HILLERYKojo, many of the same people who were historically disenfranchised and whom the Voting Rights Act was meant to protect. Again, the study that the Brennan Center did shows that many poor people, many people in minority communities, many people who are elderly will have extremely difficult times getting ID. And, you know, Ms. Thernstrom mentioned that, you know, there are all types of IDs that people use for this, that and the other.

  • 12:36:22

    AUSTIN-HILLERYBut, as you said at the start of the show, Kojo, it is not so much that states are saying, bring me any kind of ID. Most of these states are saying, bring me a particular type of ID and not only bring me this particular type of ID but bring it to me, and you -- and in order to get this ID, go to this particular location, adhere to these specific requirements, and then and only then will that be the kind of ID that we agree to accept. Therein lies the problem.

  • 12:36:50

    AUSTIN-HILLERYAnd I also want to point out that, you know, as Mr. Garrett said and as I've already said during this conversation, Virginia is actually far and ahead of many of these states that have passed similar laws in that Virginia is doing a great deal of things in order to make it easier for their citizens to get the requisite ID. But what still exists in Virginia is that for many voters, there will be widespread confusion. And that means the state will have to work very hard to educate all of their voters.

  • 12:37:20

    AUSTIN-HILLERYAnd, you know, it was even clear during the debate over the law in Virginia before it was passed. Even its own governor had trepidations about this law. Even he wasn't clear as to its validity, whether it would help their voters and exactly what the kind of impact is. So the fact that Virginia is doing so much to ensure that its citizens will get the requisite ID is testament to the fact that they recognized -- their own governor has recognized that this will make for a great deal of difficulty for lots of their voters.

  • 12:37:48

    NNAMDISen. Garrett, can we talk about the partisan aspect of this when it comes to the partisan politics of it all? How do you think your argument is affected when someone like the Republican majority leader of the House in Pennsylvania, where the new voter ID law is debated in court, said that voter ID is going to allow Mitt Romney to win the presidential contest there?

  • 12:38:08

    GARRETTYeah. Right.

  • 12:38:08

    THERNSTROMHow does he know that by the way?

  • 12:38:10

    NNAMDICould you repeat that, please?

  • 12:38:12

    THERNSTROMHow does he know that?

  • 12:38:14

    NNAMDIOh, no. I'm asking, what do you make of his statement?

  • 12:38:16

    THERNSTROMWell, I mean, he doesn't know that. It's just -- it's a throwaway sentence. And the notion that the Brennan Center has the hard data to know -- that shows how many people would not be voting or would not be able to vote as a consequence of an ID law is a -- is not credible. No good social scientist believes that that data exists.

  • 12:38:51

    AUSTIN-HILLERYKojo, I just have to clarify that. I did not say that the Brennan Center have the data to show how many people wouldn't vote. What I said was that our report showed how many people would have difficulty obtaining the requisite voter ID in many of these states.

  • 12:39:04

    THERNSTROMI don't think you've got the data for that either.

  • 12:39:07

    NNAMDISen. Garrett, Abigail Thernstrom said that what the majority leader said was a throwaway statement. I don't know if he intended it to be a throwaway statement. Certainly the people who -- some of the people who heard it didn't think of it as a throwaway statement. Allow me to repeat. He said, voter ID is going to allow Mitt Romney to win the presidential contest there. What do you make off that statement, Sen. Garrett?

  • 12:39:30

    GARRETTI don't know the majority leader in Pennsylvania, but I'll take it a step further than Ms. Thernstrom. I hope that that was taken out of context. That's a ridiculous statement. I'd like to hear him defend it. I don't know -- look, I don't care if it's an illegal Romney vote, an illegal Obama vote or an illegal third-party vote. What we're trying to do is stamp out the illegal votes so that the legal votes count one full vote.

  • 12:39:56

    GARRETTAnd ultimately, this is a wonderful country because sometimes Ms. Austin-Hillery is happy with the outcome of an election, sometimes she's not. Sometimes I'm happy, sometimes I'm not. What we want to do is make sure that those who are legally allowed to vote are allowed to vote, those who are not are not, and then the chips will fall where they may based on the populace. But I...

  • 12:40:17

    NNAMDIHere is Moe in Fort Washington, Md. Moe, you're on the air. Go ahead, please.

  • 12:40:23

    MOEGood afternoon, and thanks for allowing me to speak this afternoon. Look, in 1964, I was involved with my father in voter registration here in Prince George's County, Md., and much was made about voter registration then. It was obviously partisan. It was obviously racial because they didn't want to have black voters registered. Today, we hear about ACORN and their efforts to get voters registered and how they may or may not have used the tactics that the other side would appreciate.

  • 12:40:55

    MOEBut nevertheless, they increased voter registration, and it could be said that that contributed directly to the election of President Obama. But, frankly, it comes down to a couple of points. One, the cost and burden by the states and to the voters for all of this registration ID, for a problem which, frankly, hasn't been shown to be that prevalent, I believe the data shows that it's not that prevalent.

  • 12:41:20

    MOEThere may be some. The gentleman speaks to the sanctity of ballots. But, frankly, I'm more concerned about the lesson learned from the Bush-Gore election in 2000, and that is the sanctity of the count. What is the state doing -- in a similar fashion and a similar cause and a similar effort -- to assure the sanctity of the ballot count so that every ballot counts?

  • 12:41:43

    MOEOne more thing: The banks manage to count for our money to the penny on a day-to-day basis, on instruments that are barely legible, but somehow they manage to tell us how much money we have at the end of the day. If that can be done, why is not a similar effort and a similar expense given to the sanctity of the count? Thank you.

  • 12:42:05

    NNAMDISen. Garrett, the sanctity of the count.

  • 12:42:08

    GARRETTYeah, well, when you are in the bank, you show them an ID so they can access your account. I mean, you know, we're mixed on metaphors here a little bit. Ultimately, you'll see -- you know, a great case study is the Georgia voter turnout by racial demographics from 2004 -- when there was no voter ID requirement -- to 2008. And that just shows you that you sort of got a tempest in a teapot here. African-American turnout in four years increased 42 percent post-ID requirement.

  • 12:42:37

    GARRETTLatino turnout increased 140 percent post-ID requirement, whereas Caucasian turnout increased 8 percent. So, you know, ultimately, so long as the states make a good faith effort to ensure that everybody has an access to an ID which would qualify -- goodness, those in Virginia, our ID requirement is broad as (unintelligible) that's a good thing. I would ask the gentleman in Maryland. You know, he said it hasn't proven to be that much of a problem.

  • 12:43:04

    GARRETTWhat point is there enough of a problem to address it? Because I'll tell you what, I don't feel good about knowing that my vote counts as 99.9 percent of a vote instead of one. And, again, in a state with 8.2 million people, where the narrowest statewide election margin -- which was within the last 10 years -- was 323 votes, I think you ought to make sure that, you know, even if it's only a couple of hundred cases that the Virginia state police have confirmed from 2008, that we protect that franchise, so...

  • 12:43:33

    NNAMDIMoe, thank you very much for your call. Question to you before we go to break, Nicole Austin-Hillery: At what point do you begin to address it?

  • 12:43:42

    AUSTIN-HILLERYYou know, Kojo -- and I think I said this earlier -- I agree with Mr. Garrett that we do not want to have the problem of voter fraud in this country. The Brennan Center is against that, just as much as any organization, any politician. The problem here -- and our caller from Maryland brought this up -- is that the advent of these voter ID laws across the country is really evidence of many legislatures putting in place a solution where there really is no problem.

  • 12:44:11

    AUSTIN-HILLERYEven the problems of voter fraud, as Mr. Garrett calls it, that have existed in Virginia, again, have been problems that the voter ID solution would not address. We already have safeguards in place in all of the states that would ensure that individuals who are not supposed to vote don't get to vote. So it's really unclear to me why so many of these states have felt the need and the desire to put in place additional safeguards when the safeguards that are already in place have been working.

  • 12:44:41

    AUSTIN-HILLERYAnd I just want to lastly say, Kojo -- and I think Ms. Thernstrom talked about this earlier, or perhaps it was Mr. Garrett. But we're not just talking right now about problems in Southern states, although, as I've said, it has been the -- the majority of states that have passed these laws have been Southern states. But we also have seen that the other states that are located in other geographic regions of the country that have passed these laws have been states that have been primarily led by Republican governors and legislatures. So, you know, there is a theme there as well.

  • 12:45:11

    NNAMDIGot to take a short break. When we come back, we will continue our conversation on the controversy over voter ID laws, taking your calls at 800-433-8850. What concerns do you have about whether your voting jurisdiction is susceptible to fraud? Do you have any evidence that suggests your concerns are valid? 800-433-8850 or send email to kojo@wamu.org. I'm Kojo Nnamdi.

  • 12:47:37

    NNAMDIWelcome back to our conversation about voter ID laws. We're talking with Nicole Austin-Hillery, director and counsel at the D.C. Office of the Brennan Center for Justice at New York University. Thomas Garrett is a member of the Virginia Senate. He's a Republican, former commonwealth attorney for Louisa County. And Abigail Thernstrom is the vice chair of the U.S. Commission on Civil Rights. Abigail Thernstrom, if we look at voter registration as a potential problem rather than voter ID, what do you see?

  • 12:48:08

    THERNSTROMIt's not hard to register to vote, and I don't see a serious problem with obstacles to doing so. I do think that there are too many people who are quasi-indifferent to whether they vote or not. And in a democratic society that depends upon public approval of public policies, I mean, that is something that we should all think is unfortunate.

  • 12:48:57

    THERNSTROMI mean, in, you know, in the years leading up to the passage of the Voting Rights Act in 1965, people were killed for participating in voter registration drives in the South -- I mean, most famously Chaney, Schwerner and Goodman for participating in Mississippi '64 -- killed by the Ku Klux Klan. But, I mean, people marched and died for the ability to vote, and I, you know, I think everything should be done to get people -- to encourage people to participate in the world's greatest democracy.

  • 12:49:47

    NNAMDIWhen you look at voter registration, Sen. Garrett, given that our participation in presidential elections is just around 50 percent, what do you see?

  • 12:49:56

    GARRETTI think, you know, Ms. Thernstrom is right on top of it. It's really unfortunate. We live in a society where, as she noted, literally, if you count the Revolutionary War to the Civil War and World War II, millions of people have shed their blood to ensure our franchise. It's tragic that more people aren't registered to vote, you know, and I commend the organizations who engage in legitimate voter registration practices.

  • 12:50:22

    GARRETTThe problem is, more and more often, we're seeing organizations that are engaging in practices such as pre-populating forms with data, which is patently illegal in the commonwealth of Virginia, and they do it anyway. And all we're asking is that the rule of law be respected and that the sanctity of the ballot be upheld. So I would like to see much higher participation amongst every segment of the population. I think it's unfortunate that we take for granted the life that we've inherited from people who gave so much for us to have them.

  • 12:50:51

    NNAMDIVoter registration, Nicole?

  • 12:50:53

    AUSTIN-HILLERYYou know, Kojo, I think we have mutual agreement here. The problem of voter apathy is indeed a problem that should concern us all. We all want -- we want all Americans to exercise this right to vote. And, yes, many people have bled and died for that right. I wouldn't be an attorney sitting here talking to you today had it not been for those forbearers who fought -- that fought. I stand on their shoulders. But let me say this, what we're talking about here today is not the problem of voter registration.

  • 12:51:28

    AUSTIN-HILLERYMs. Thernstrom is right. People -- there really aren't many barriers to people registering, but what we are doing with the passage of these voter ID laws is we are putting a barrier in place to actually one's ability to cast that ballot. So this is really a two-part issue. We in this country not only have to ensure that voters aren't impeded from registering. We also have to ensure that they are not impeded from voting. And these voter ID laws are doing just that.

  • 12:51:56

    AUSTIN-HILLERYHistorically in this country, what we have been about is expanding the ballot box, expanding voters' opportunities to actually cast a ballot. These voter ID laws really go against that historical grain, and that is really -- it goes against expanding those opportunities for voters.

  • 12:52:12

    NNAMDIWant to get to the issue of low turnout again because that's what Paul in Waldorf, Md. wants to talk about. Paul, you're on the air. Go ahead, please.

  • 12:52:20

    PAULWell, thanks a lot for having me on, Kojo. Say, I heard Mr. Garrett talk earlier about at what point are we supposed to do something about it when the votes are watered down. He said he didn't want his vote to be worth 0.99999 percent of a vote, yet...

  • 12:52:42

    NNAMDIWell, 99.9 percent is what he said.

  • 12:52:44

    PAULOh, all right, yes, 999 -- yes. He doesn't want it diluted by any fraction, yes. But in reality -- and this is just what you were talking about -- we have so many people who fail to exercise the franchise that the folks who do vote are exercising the franchise for them. And your vote is actually worth so much more than just your one vote. And so I would -- I'd propose to Mr. Garrett that -- where Virginia or any other state might start taking this -- taking these actions is where those -- that number is closer to one when we start getting 100 percent or close to 100 percent turnout. Then...

  • 12:53:26

    THERNSTROMBut that's a fantasy. I mean, there's an assumption here that there are some -- there exist something called a perfect election. That doesn't exist. It's not going to exist. Elections are imperfect. They're the best we can do to make sure the people's voices are heard. But 100 percent turnout, yeah, you get 100 percent turnout in North Korea because you'll end up in, you know, whatever, jail. You should get 100 percent turnout in the Soviet Union in -- but in free societies, you're not going to get 100 percent turnout, and that's part of the definition of freedom. You are free to decide not to vote.

  • 12:54:10

    NNAMDIThank you very much for your call, Paul. Here is Eric in Takoma Park, Md. Eric, your turn.

  • 12:54:17

    ERICHi. Thanks, Kojo, for dedicating so much time on your program for this topic. One thing that I haven't heard raised is a response to the advocates of increased voter ID requirements when they cite common sense, saying that we -- when we board a plane or when we cross an international border, we present an ID. So why shouldn't we do the same at a voting booth? But that's a false argument because the truth is that we show ID in those situations because of a potential safety risk. But there's no -- experience shows that there's no such safety risk at polling places or in the voting booth.

  • 12:54:55

    NNAMDITo which you say what, Sen. Garrett?

  • 12:54:57

    GARRETTOh, I think it's a safety risk to America if an election is fraudulently decided. I mean, you know, when the role of the majority is subverted by foul play, I think that's a safety risk. Ultimately, the gentleman who called talking about, you know, that a vote -- because voter turnout is below 100 percent and the votes is worth less than one, look, every fraudulently cast ballot makes the election less meaningful. So, you know, I'm not suggesting that this is happening millions of times, but it's been documented. And I've prosecuted successfully cases of it.

  • 12:55:29

    GARRETTI mean, it's been documented happening hundreds of times in a single election cycle in the commonwealth of Virginia. And, frankly, I think Ms. Austin-Hillery has been gracious and kind in her acknowledgment that Virginia has got extraordinarily good at voting laws. So if we have the voting laws and you can document hundreds of cases, then what's going on elsewhere? So, you know, yeah, it's a safety risk if the democracy of the United States is subverted. You know, again, I think it bears repeating. We don't need to like the outcome of the elections, but we ought to love the system.

  • 12:55:55

    NNAMDIThank you very much for your call, Eric. Here's Nicole Austin-Hillery.

  • 12:55:58

    AUSTIN-HILLERYKojo, what Mr. Garrett -- I just have to correct one thing Mr. Garrett said. Again, he talks about the types of fraudulent cases that he's prosecuted in Virginia. Again, we have to understand, the voter ID law that have been passed in these several states would not address that kind of problem. So here, we have an instance where legislators have put a solution in place that is really not -- that's dealing with a virtually non-existent problem. We have not been able to document one case of in-person voter ID fraud in this country.

  • 12:56:33

    AUSTIN-HILLERYSo why do we have a law in place that's meant to address that kind of issue? We haven't been able to document it. Just very specifically, in Pennsylvania -- we've already talked about the fact that Pennsylvania has these voter ID laws. There is litigation going on now in Pennsylvania that is challenging their voter ID law. Pennsylvania -- the state has stipulated that in their state, they have not been able to document one shred of evidence showing that they have had an instance of in-person voter fraud.

  • 12:56:59

    AUSTIN-HILLERYSo, again, you know, it's a felony to commit in-person voter fraud. I don't think many Americans are going around saying, you know what, I'm going to get in this kind of legal trouble just so I can go to the polls and say I'm somebody I'm not. It's not happening. So why do we have a law in place to deal with something that's just not happening?

  • 12:57:15

    NNAMDIMargaret in Virginia writes, "In 25 years as an election official in Fairfax County, both before and after the introduction of the requirement to present IDs in Virginia, I have never, never seen any sort of voter fraud and certainly nothing that would suggest premeditated voting as someone you are not, the only thing the ID can possibly prevent. I've seen voter fraud in observing elections abroad, so I know it when I see it." And we're almost out of time, but Sen. Garrett, I think you'd like to respond to that.

  • 12:57:42

    GARRETTWell, it wasn't too long ago that I watched a young man present himself as Atty. Gen. Eric Holder at a polling place in Washington D.C. and be directed to where he should go vote, you know. And the other thing is that this is a sort of omnibus across-the-board effort again. I can see that the voter ID law would not have prevented the type of voter fraud that we prosecuted successfully. However, I would add that House Bill 57 would, and so these -- both were passed in the same session...

  • 12:58:06

    NNAMDIAnd I'm afraid we're just about out of time.

  • 12:58:07

    GARRETT... (unintelligible) check the list before the elections, not afterwards.

  • 12:58:11

    NNAMDIThomas Garrett is a member of the Virginia Senate. He's a Republican, former commonwealth attorney for Louisa County. Abigail Thernstrom is vice chair of the U.S. Commission on Civil Rights. And Nicole Austin-Hillery is the director and counsel of the D.C. office of the Brennan Center for Justice at New York University. Thank you all for listening. I'm Kojo Nnamdi.

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