First 100 Days

The Myth of Millions

Voter Fraud and the Trump Administration’s Impact on Voter-ID Litigation in the First 100 Days

Millions of people voted illegally in the 2016 election, according to President Trump. Despite winning the election, he insists that he also would have won the popular vote—which he lost by nearly three million votes—were it not for voter fraud. But, these absurd claims are patently false. Worse, they perpetuate a myth that has led to a flurry of voter-ID legislation over the last seven years, disenfranchising millions of voters, mostly minorities. While the Obama administration challenged such laws, the first 100 days of the Trump presidency suggest that the new administration will not take a similar approach. This essay discusses strict voter-ID laws, their impact, and the statistics surrounding voter fraud. It then reviews the recent litigation over such laws, including the DOJ’s recent mid-litigation reversal. Finally, it analyzes the impact of the Trump administration’s position on the future of voter-ID laws.

I. Strict Voter-ID Laws

The widespread myth of massive voter fraud took hold following the 2008 election. Mostly perpetuated by conservative-leaning groups, the premise is that thousands—if not millions, as President Trump would have us believe—of people vote illegally at polls by impersonating other people so that they may cast multiple ballots. Therefore, according to proponents of strict voter-ID laws, voters must only be allowed to vote if they provide a certain type of ID. While this seems straightforward on paper, and not necessarily objectionable, the actual implementation of these laws is extremely discriminatory.

Strict voter-ID laws limit the type of ID that voters can use to vote. Generally, but not always, they require some type of photo. These limitations often seem inexplicably selective. For example, in Texas—whose original voter-ID1 law was described as “the strictest in the country”— voters can use a gun permit (nonphoto ID) but cannot use a university-issued student ID (photo ID). On the other end of the spectrum, states with laxer laws, such as Illinois, only require things such as a utility bill or paycheck. Currently, thirty-two states require a voter ID; eighteen states and the District of Columbia do not.

The rise of strict voter-ID laws followed the 2010 midterm election, in which Republicans won control of state legislatures in Alabama, Minnesota, Montana, North Carolina, and Wisconsin. Between 2010 and 2012, there were sixty-two proposed strict voter-ID laws across thirty-seven states—a majority of which had Republican-controlled legislatures. To date, seventeen states have voter-ID laws requiring a photo ID.

II. Strict Voter-ID Laws: Impact vs. Need

Advocates of strict voter-ID laws often dismiss concerns about the laws’ impacts, assuming that these forms of ID are common or easily obtained. Although this argument is seemingly logical—you need a driver’s license to drive, fly, buy alcohol—the reality is many people, mostly minorities, lack such IDs.

For example, it is estimated that Texas’ strict voter-ID law, passed in 2011, disenfranchises between 600,000 and 1.5 million eligible voters, mostly Black or Hispanic.2 These laws also disenfranchise poorer voters, many of whom work hourly-wage jobs, because it requires them to take off work and possibly travel long distances to get the proper ID. In 2012, eighty-one of Texas’ 254 counties did not have a Department of Motor Vehicles office, meaning voters in some rural parts of the state had to travel fifty miles or more to get an ID.

This impact is more concerning given that there is virtually no evidence of actual in-person voter fraud, the only kind of fraud voter-ID laws can prevent. A 2012 study revealed that between 2000 and 2012, there were only ten cases of in-person voter fraud in the United States (while critics might argue that we cannot know the true extent of voter fraud prior to ID legislation, that merely begs the question). During this time, there were 146 million registered voters, meaning that there was one case of in-person voter fraud for every 15 million voters. In fact, mail-in voter fraud is far more common, but strict voter-ID laws cannot prevent this type of fraud.

III. Voting Rights Act and Litigation

Under the Obama administration, the DOJ began striking down strict voter-ID laws under § 5 of the Voting Rights Act (“VRA”)—which required certain states, mostly Southern, to obtain federal-government approval for any changes in the election process—arguing that they had a disproportionate impact on minority voters. In response, states, such as Texas, sued the government arguing that § 5 was unconstitutional. The government was largely successful in these suits until the Supreme Court gutted § 5 in Shelby County v. Holder, 133 S.Ct. 2612 (2013), allowing laws previously struck down as discriminatory to go back into effect.

But, the DOJ again challenged the laws under § 2 of the VRA, which prohibits voting procedures that discriminate on the basis of, among other things, race or color. Some of these lawsuits, such as Texas’, were still underway when the Trump administration took over in January. While some had predicted the change in administration would soften the DOJ’s position on strict voter-ID laws, the Trump administration completely reversed its position, asking the district court to dismiss its claim against Texas and let it withdraw from the case. The court granted both requests, though the litigation continues on claims brought by civil-rights group.

IV. Looking Ahead

What does this mean for the future of voter-ID litigation? It’s clear that, under the Trump administration, the government will not challenge restrictive and discriminatory voter-ID laws. While it’s true that changes in policy are not unusual after a new party takes power, and voter-ID laws will continue to be challenged by civil-rights groups, the Trump administration’s all-out reversal should not be dismissed as routine—it has significant implications for minority voters that cannot be overlooked. This is the first time there has been a Republican-controlled White House during the era of widespread, Republican-led voter-ID legislation, and the DOJ’s new position disrupts the important legal challenges, and accompanying public dialogue, to these laws that ensured such legislation was done the right way and for the right reasons.

With no executive check in place, states may be emboldened to continue to pass voter-ID laws, regardless of any discriminatory impact. Indeed, at least two states have passed, or are in the final stages of passing, new voter-ID laws in April 2017. Such laws will continue to disenfranchise minority voters, who are sacrificed in the bitter bipartisan battle surrounding election law (also seen in redistricting efforts). And, Republicans have little incentive to reevaluate these laws. These voters overwhelmingly vote Democrat,3 and their numbers are growing. Every month, for the next fifteen years, 50,000 Latinos will turn eighteen years old. In 2012, it was estimated that 2.15 million eligible Texas Latino voters were not registered to vote, far exceeding the 950,695 votes that lost President Obama the state in 2008. The Latino population is also showing up in greater numbers at the polls. These statistics provide Republican legislators with a powerful motive to continue the myth of voter fraud and bolster strict voter-ID laws.

And, it is likely that the Trump administration will continue to perpetuate this myth, only this false claim can do more damage than any dispute over inauguration crowds. Not only will this give rise to more voter-ID legislation and disenfranchise minority voters, it will also undermine the legitimacy of the voting process—a dangerous threat in light of the reports of Russian interference in the 2016 election and the ongoing assault on the media (“fake news”), science (the climate-change “hoax”), and facts in general (“alternative facts”). With respect to voting rights, the message gleaned from the first 100 days is clear: in this current environment, civil-rights groups are on their own in future litigation over voter-ID laws, and we all must push back against the myth of voter fraud.

* J.D. 2017, University of Illinois College of Law. She is a former reporting fellow for the Carnegie-Knight News21 initiative, where she focused on voting rights, voter-ID laws, and surrounding litigation. She contributed to the Washington Post’s coverage of Texas v. Holder, 888 F. Supp. 2d 113 (2012). Thanks to Ana Lastra and Annelise Russell, whose work helped inform this piece.

1 Following litigation, the Texas secretary of state provided an affidavit option for voters lacking the required ID, making it somewhat less strict.

2 One study found that “while only 4.7% of non-Hispanic White eligible voters lack an accepted ID, 8.4% of Black eligible voters, and 11.4% of Latino eligible voters lack accepted ID. Thus, eligible Black voters are 179 percent more likely to lack an accepted photo ID than are non-Hispanic Whites. Eligible Latino voters are 242 percent more likely to lack an accepted photo ID than are non-Hispanic Whites.”

3 Leading up to the 2010 election, 65% of Latino voters said they would vote for Democrats.