Letter to Congress on the Conference Report on H.R. 3295, the Help America Vote Act

Re: H.R. 3295/Help America Vote Act

Dear Member of Congress:

The American Civil Liberties Union (ACLU) urges you to oppose the conference report on HR 3295, Help America Vote Act, because the agreement contains provisions that would lead to discrimination and ultimately result in disenfranchising many voters. This legislative cure to the severe voting rights problems seen in the 2000 Presidential election could be even worse than the disease.

In many respects, the conference report rolls back many of the voting rights victories achieved over the past three decades through the Voting Rights Act of 1965 and the National Voter Registration Act of 1993. Instead of making sure that the voting process is as inclusive as possible, this agreement would exclude people, negatively impacting the elderly, the disabled, racial and ethnic minorities, students, and the poor. Not only would this bill make it more difficult to vote, it would make it more difficult to register to vote.

While the conference report purports to address the voting problems apparent during the 2000 Presidential election, its solutions are illusory. For example, the legislation establishes minimum standards for the performance of voting machinery, but provides an exemption for punch card machines, the most controversial and problematic technology used during the 2000 presidential election, for over-vote notification. Although this legislation requires election officials to permit voters whose name does not appear on the voter registration list to cast a provisional ballot, it gives complete discretion to the state to decide when and if provisional ballots will be counted, even in federal elections. As we have seen in the past, these ballots can determine the outcome of an election.

This election reform legislation is the only major piece of civil rights legislation the Senate and House have taken up in the 107th Congress. We urge you to carefully consider the negative implications associated with the provisions that will undermine critical advances the United States has made in voting rights. While this legislation would authorize much needed funding to states and local governments to improve their election systems, it simultaneously imposes requirements that will effectively suppress voter participation. New machines are meaningless if policies are enacted that prevent people from voting on them.

Outlined below are two problematic provisions contained within the conference report that threaten to exacerbate the very problems that the legislation is intended to correct, to ensure that every citizen eligible to vote can vote. They are the driver’s license and social security number requirement to register to vote and the photo identification requirement to vote.

Driver’s License and Social Security Required to Register to Vote

The conference report imposes additional requirements in order for citizens to register to vote. Under this legislation, the voter would be required to provide a driver’s license number or, in the event they do not have one, the last four digits of their social security number. Any voter who has either number but does not provide it – even for privacy reasons – would not be registered.

When the voter provides either their driver’s license number or the last four digits of their social security number, the state must verify the accuracy of the data provided. This includes checking data against state motor vehicle and Social Security Administration (SSA) databases, to verify the voter’s name, date of birth and social security number. But, there are many reasons why the data provided by an eligible voter may not match the data in a motor vehicle or SSA database, even though it is the same person. For example, women may have married or divorced without changing their name in the SSA database. Many Latinos use both their mother and father’s surname, or both their father’s and spouse’s surnames, which SSA may list incorrectly – resulting in a false “”no-match.”” A simple juxtaposition of a number could result in a “”no-match,”” whether due to the fault of the applicant, or an SSA employee who enters the number into the database incorrectly. This could result in either purging or the invalidation of a voter’s registration application.

Also, this conference report would remove social security number disclosure (last four digits) from the protection of the Privacy Act of 1974, which makes it unlawful for local, state or federal agencies to deny someone a right provided by law for refusing to disclose their social security number. Congress did not limit the protection in Sec 7(a) of the Privacy Act to parts of the social security number. All nine digits of the social security number are part of the “”social security account number”” and are therefore protected. It was the use of the social security number for identification purposes that Congress was restricting. There can be no doubt that the requirement that voters disclose the last four digits of their social security in order to register to vote is an attempt to use the numbers as an identifier. If Congress intended to protect only five (5) of the nine (9) digits it would have written legislation that explicitly did so. Permitting a state to require parts of the social security account number creates an exception that would frustrate the intent of Congress. Furthermore, it is incorrect to suggest that by merely requiring a voter to disclose the last four digits of their social security number that their privacy is somehow protected.

In addition, forced disclosure of social security numbers threatens a citizens’ privacy and could lead to identity fraud, where imposters armed with a person’s name and social security number can raid back accounts, establish fraudulent credit cards and even ruin a voter’s credit. The Social Security Administration Office of Inspector General has registered a 500 percent increase in allegations of Social Security fraud in the past several years – from 11,000 in 1998 to 65,000 in fiscal year 2001.

Photo Identification Required to Vote

The second major setback in the conference report is the photo identification requirement. As with the other methods of disenfranchisement in American history, such as literacy tests and poll taxes, the photo identification requirement would present barriers to voting and have a chilling effect on voter participation. There are voters who simply do not have identification and requiring them to purchase photo identification would be tantamount to requiring them to pay a poll tax. As a disproportionate number of racial and ethnic minority voters, the homeless, as well as voters with disabilities and certain religious objectors, do not have photo identification nor the financial means to acquire it, the burden of this requirement would fall disproportionately and unfairly upon them, perhaps even violating the Voting Rights Act, 42 U.S.C. § 1973.

Further, the limited alternatives to photo identification provided in the bill – including a government check or government document, utility bill, or bank statement that shows the name and address of the voter — place the poor in no better position. Certain populations of battered women and homeless people, for example, cannot produce any of the required documents, because they often do not live in a house or apartment and if they do, the utility bills are not in their name, they do not have a bank account, and they may not receive a government check. American citizens should not be denied their constitutional right to vote because they do not have these documents, particularly when there are other alternatives to these requirements such as attestation or signature clauses which are currently used effectively by many states to prevent fraud.

The Department of Justice (DOJ) has consistently raised objections to imposing photo identification as a prerequisite for voting because such requirements are likely to have a disproportionately adverse impact on black voters and will lessen their political participation opportunities. In 1994, DOJ found that African-American persons in Louisiana were four to five times less likely than white persons to have driver’s licenses or other picture identification cards.[1] In addition, the Federal Elections Commission noted in its 1997 report to Congress that photo 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.[2]

Effective federal legislation should not erect new obstacles or weaken existing voting rights laws. Eliminating these discriminatory provision is the most certain and complete way to guarantee that all states meet the requirements outlined by the Supreme Court in Bush v. Gore, 121 S. Ct. 525 (2000). Voters should not have to resort to the courts to ensure compliance with the “”one person-one vote”” rule.

We recognize that reform of our nation’s electoral systems is critical. But it cannot be done in a manner that unduly prevents legitimate voters from exercising their constitutional right to vote. For the reasons indicated above, we urge you to vote “”no”” on final passage and will score a vote in favor of this legislation as a vote against voting rights.

Sincerely,

Laura W. Murphy, Director
Washington National Office

LaShawn Y. Warren, Legislative Counsel
Washington National Office

ENDNOTES

1 Letter from Deval L. Patrick, Assistant Attorney General, Civil Rights Division of the U.S. Department of Justice, to Sheri Morris, Assistant Attorney General for the State of Louisiana (Nov. 21, 1999).

2 Letter from L. Anthony Sutin, Acting Assistant Attorney General, Department of Justice to Congress on amendments to the Bi-partisan Campaign Integrity Act of 1997.