By: Amelia Shindelar
Voting is the cornerstone of any democracy, and a fundamental right recognized under international human rights law. In a U.S. political environment stoked with fear and disregard for civic decency and engagement, we are facing an ongoing attack against this right. This right is currently being suppressed through; strict voter identification laws, voter intimidation, purging of voter rolls and felony disenfranchisement. Voter suppression is not a new phenomenon in the United States, and there is an extensive body of literature that explores its long history in this country. This paper will focus on more recent incidences, particularly those occurring during the 2016 election cycle.
The first section of this paper will briefly outline the International and Domestic legal protections for the right to vote. I will then examine a variety of methods being used in the U.S. to deny individuals this right and explore some of the methods for measuring the scope and intensity of voter disenfranchisement. Lastly, I will conclude by reviewing efforts currently being made to protect the right to vote in the U.S. as well as potential threats under the current presidential administration.
The right to vote has been institutionalized in various international and domestic legal documents. Most prominent of these is Article 21 of the Universal Declaration of Human Rights, which states “everyone has the right to take part in…periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” For this discussion, it is important to remember that Article 2 of the UDHR states: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Further, the International Covenant on Civil and Political Rights (ICCPR) recognizes the right to vote under Article 25, which states that “every citizen shall have the right and the opportunity … to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.” The United States is a party to the ICCPR, which it ratified in 1992. In addition, Article 23 of the American Convention on Human Rights guarantees the right of citizens to vote and to be elected in genuine periodic elections. The United States has signed, but not ratified, this treaty.
Finally, the right to vote is also protected by law in the United States. Article I of the US Constitution established the right to vote, and the 15th, 19th and 26th Amendments establish that this right cannot be withheld on account of race, color, sex, or age (for those older than 18). Additional federal legislation that protects the right to vote in the United States includes the Voting Rights Act of 1965 which prohibits racial discrimination in voting, the Voting Accessibility for the Elderly and Handicapped Act, the Uniformed and Overseas Citizens Absentee Voting Act, the National Voter Registration Act of 1993 that aims to increase voter registration opportunities, and the Help America Vote Act of 2002, which established minimum election administration standards.
The U.S. Government is bound by these various legal documents to guarantee its citizens their right to vote. In the United States, elections are administered at the local level and are most often regulated by state, not federal, law. Thus, it is local election commissions or county election boards that are obligated to respect, protect, and fulfill the right to vote.
Methods of Voter Disenfranchisement
There are many recent examples of individuals being denied their right to vote, also known as voter disenfranchisement, often undertaken by those very same election administrators who should be protecting and fulfilling that right. During the 2016 election cycle voters were constantly bombarded with misinformation (i.e., a social media campaign which told voters they could text in their vote, and incorrect information about polling places and hours), threats of intimidation, and rhetoric about unfair and rigged elections. The following section will develop a brief overview of some of the actions that, purposefully or not, denied eligible individuals the right to vote.
Voter Identification Laws
Over the past decade, voter identification laws have become an important issue in U.S. politics. Supporters of these laws argue that requiring voters to present photo identification to vote prevents election fraud, while opponents argue that election fraud is too rare in the United States to require a law. Voter identification laws are designed to address only one type of fraud; in person voter fraud. This type of fraud occurs when an individual arrives at a polling place and attempts to vote under someone else’s name, and is exceedingly rare. In 2014 Justin Levitt, a professor at Loyola Law School, conducted an analysis of elections from 2000 to 2014 and found only 31 incidents of in-person voter fraud, out of over 1 billion ballots (Levitt 2014).
Another key argument of opponents is that these laws serve only to create barriers that disenfranchise minority voters. Prior to the 2006 election no state required photo ID for a registered voter to be able to vote. Currently, 11 states require voters to show some form of photo identification in order to vote, with the types of ID allowed vary across states. This, along with ongoing litigation and various “voter education” programs, contributed to a general sense of confusion about if and what type of identification was required to vote on election day. Some voting rights activists believe that this confusion contributed to lower than expected voter turnout in minority communities (Fields 2016; Kaleem 2016).
In many countries and legal systems, requiring a photo ID can be a reasonable condition for voting. However, there are two main arguments why this condition is not only unreasonable but can be considered an infringement on the right to vote in the United States. On the one hand, there are significant disparities in who possess the required identification (Barreto, Nuno, and Sanchez 2009) and on the other hand citizens can encounter considerable difficulties in procuring the required identification. In countries which require ID to vote, all citizens are automatically provided with a national identification card before or when they are eligible to vote. In the United States, ID cards are provided on a state by state basis with no uniformity in the steps or documentation required to receive them. Analysis by the Brennan Center for Justice has shown that the elderly, poor, students, and minorities are less likely to have the identification needed to vote. Furthermore, for those that wish to vote but do not have the type(s) of identification required by their state it can be difficult and expensive to acquire, as the following three stories illustrate:
- Anthony Settles of Texas, 65, has an expired Texas ID card and wanted to get a new ID so he would be able to vote. Mr. Settles was not able to obtain the new ID because his birth certificate does not match his expired ID. Mr. Settles’ mother changed his name when she remarried in 1964, but he has not been able to obtain a copy of his 1964 name-change certificate despite extensive effort and expense. In order to rectify this, he would have to go to court and pay over $250 to obtain a new name change certificate, which he is not able to afford (Horwitz 2016a).
- Myrtle Delahuerta, 85 and also from Texas, has been trying for two years to get an ID. She has a similar issue; as her birth certificate does not match her name on her other documents due to a clerical error. Ms. Delahuerta is disabled and has difficulty getting to the many government offices she has had to visit to try and obtain an ID. She is applying to have her name legally changed so she can acquire an ID. A process which is costing her over $300 and requiring multiple trips to hard-to-access government offices (Horwitz 2016a).
- Zack Moore, who had recently moved from Illinois, reported that when he went to the Wisconsin DMV in September to get the required ID he was turned away despite having his former Illinois ID, his Social Security Card, and proof of residence. DMV employees told Mr. Moore that he had to have his birth certificate to obtain an ID. To obtain a copy of his birth certificate he would have had to drive to Illinois and back, which he could not afford to do. The Wisconsin DMV should have offered him a credential he could use for voting, but it did not do so (Berman 2016a).
Widespread fear of voter harassment and intimidation during the 2016 presidential election led organizations and news media to publish multiple articles and guides on how to recognize and report intimidation. The American Civil Liberties Union’s “Know Your Rights: What to Do When Faced with Voter Intimidation” is an example of one such guide. The New York Times (Chokshi 2016), Washington Post (Horwitz 2016b) and US News (Neuhauser 2016) are examples of a few of the media organizations which addressed fears of intimidation. This fear of intimidation can be traced back to the rhetoric of GOP presidential candidate Donald Trump who repeatedly called on supporters to “watch other communities” (Epps 2016). He also repeatedly stated that “the process is rigged” and that “voter fraud is very, very common” (Collinson 2016).
The Lawyers Committee for Civil Rights Under Law reported that “concern about voter intimidation resulted in more calls than in the past to election protection hotlines with reports of aggressive electioneering and police presence at polling places” (Lawyers Committee 2016). While it is difficult to measure the effects of this type of intimidation, many minority and voting rights activists point to the ways in which oppressive and violent rhetoric suppresses voter turnout, even when physical intimidation is not occurring.
Purging Voter Rolls
Voter rolls are the official lists of citizens who are eligible to vote in a given geographic location. As with other election related issues, these lists are established and regulated at the local level. Purging voter rolls, also known as voter caging, is a practice which involves challenging the legality of an individual’s registration with the express purpose of removing them from the voter rolls so they will not be able to vote on election day. How this is done and by whom it can be done varies: In some locations only members of the electoral board can challenge registrations, in others private citizens can file challenges to registrations with the electoral board (Levitt and Allison 2007). Establishing accurate voter rolls by removing individuals who are deceased or no longer reside in the election district is an important administrative task, but it becomes problematic when voter rolls are purged in order to disenfranchise a specific group of voters.
In Sparta Georgia, the Hancock County Board of Elections and Registration dispatched sheriff’s deputies with summons demanding that 180 African-American Sparta citizens appear before the board to prove their residency in order to protect their right to vote. While only a small number of these individuals were eventually removed from the voter rolls, “[a] lot of those people that was challenged probably didn’t vote, even though they weren’t proven to be wrong” Marion Warren, the Sparta elections official who raised an alarm with voting-rights advocates, told the New York Times. The long history of fear and mistrust of law enforcement in the local African-American community contributed to this dynamic. This purge of black citizens from the voting roles came on the heels of an attempt to close 9 of the county’s 10 polling places. This attempt to close polling places was protested by the NAACP as disenfranchising rural black voters who could not travel long distances to vote (Wines 2016).
Another example of purging comes from North Carolina where a conservative organization known as The Voter Integrity Project claims to have removed over 6,000 people from the voter rolls since 2014. The Voter Integrity Project believes that there is widespread systemic voter fraud and is aiming to combat that fraud by cleaning up the voter rolls, and uses a number of tactics to challenge voter registrations in North Carolina. One of the most common methods is to send out a mass mailing to a targeted community. When the mail is returned as “undeliverable,” they use this to challenge the residency and thus eligibility to vote of those individuals. The NAACP of North Carolina claimed that these actions disproportionality targeted African-Americans and challenged the purge in federal court which ordered that the voters be reinstated (Levy 2016, Devine et al 2016).
Policies regarding the rights of those that have convicted a felony to vote vary from no restrictions to permanent loss of the right to vote (Cammett 2012). The Sentencing Project, an organization which aims to reform the U.S. criminal justice system, estimates that 6.1 million Americans cannot vote because of felony convictions (Chung 2016). As with all the issues discussed thus far, felon disenfranchisement has a disproportionate impact on minority communities. African-Americans are four times more likely than the rest of the eligible voting population to lose their right to vote through felony disenfranchisement (Harvey 1994). In some states, as much as 2% of all African-Americans who would otherwise be eligible to vote have been disenfranchised (Harvey 1994, 1152). As part of its concluding observations during the periodic review process, the UN Human Rights Committee found that the practice of felon disenfranchisement has “significant racial implications” (UN Human Rights Committee 2006, 11).
Measuring the Scope of Voter Disenfranchisement
Measuring the problem of the wide variety of methods used to deny individuals the right to vote measuring will require employing a variety of methods. Policy makers can start by looking at the number of states that have voter identification laws and the types of laws that they have. This graph from the National Conference of State Legislatures (2016b) shows the changes in voter ID laws from 2000-2016 and breaks it down by type of law.
As we can see from the graph, there has been a steady growth in the number and strictness of voter ID laws. If state legislatures continue to pass these types of restrictive voter ID laws without also making provisions to ensure that all eligible voters have access to the required types of identification, it is likely that that poor and minority communities will continue to be disadvantaged.
Another issue that needs to be taken into consideration when looking at the scope and effect of voter identification laws is measuring how these laws are affecting voter turnout. A 2014 study by the Government Accountability Office (GAO) showed that states with voter ID laws saw declines in election turnout in comparison to states which did not have voter ID laws. This study compared Kansas and Tennessee, which had enacted new voter ID laws between the 2008 and 2012 elections to four states which had not enacted new laws. In this study, GAO controlled for other criteria which could have affected voter turnout. “GAO's evaluation of voter turnout suggests that turnout decreased in two selected states—Kansas and Tennessee—from the 2008 to the 2012 general elections…to a greater extent than turnout decreased in the selected comparison states,” and that this decrease was attributable to changes in voter identification laws (U.S. Government Accountability Office, 2014). The report goes on to say that turnout was disproportionately suppressed among young voters, new voters and African-Americans.
Academic research has shown mixed results when analyzing the effects of voter identification laws, but as the number of strict ID laws has increased there has been growing empirical evidence of a discriminatory effect. A forthcoming study from the University of California, San Diego used Cooperative Congressional Election Study data to compare turnout by various subgroups in every state across the last five election cycles (2006 to 2014). Holding all else constant, the authors are able to show that states with strict voter ID laws “reveal substantial drops in turnout for minorities,” as high as 12.5% in some cases (Hajnal, Levjevardi and Nielson forthcoming, 17).
While measuring the scope of voter suppression caused by identification laws is difficult, measuring the number of individuals who are denied their right to vote by practices of intimidation is even more difficult. One method to help understand the scope of intimidation would be to conduct a survey of eligible voters, and once determined if they had voted in the most recent election you could ask non-voters a battery of questions that would help you understand why they did not vote. It would be useful to not only ask questions about their opinions on voting but also about how voting is perceived in their community, what types of messaging they were hearing from the media about elections and voting and both direct and indirect questions relating to intimidation. With careful analysis, this data could provide further insight into the scope and effects of voter intimidation.
Countering Voter Disenfranchisement
Just as there are many methods for disenfranchising voters there are many groups and organizations working in many different ways to help protect the right to vote in the United States. These actions include legal challenges in court and voter education campaigns. I propose two additional policies that would contribute to current efforts towards greater voter protections: a national identification card and automatic universal voter registration.
In Shelby County v Holder Case, the United States Supreme Court ruled that Section 4(b) of the Voting Rights Act of 1965 was unconstitutional. This ruling struck down a provision which required certain jurisdictions to receive “preclearance” from the federal government before making changes to their voting laws. This provision was designed to protect minority voters from discriminatory practices in jurisdictions which had historical patterns of entrenched racism (Stern 2016a). This Supreme Court decision opened the door to many of the changes we are currently seeing in election law and administration. Despite this ruling, advocates around the country continue to bring cases which challenge attempts to deny voters their right.
In July 2016, the U.S. 4th Circuit Court of Appeals struck down North Carolina’s SL 2013-381, which implemented strict voting restrictions. The court found that this law was intentionally designed to restrict the suffrage of African Americans. In its decision, the 4th Circuit wrote: “Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.” The U.S. 5th Circuit Court of Appeals struck down Texas’ SB 14, in the same month. According to the court, SB 14 placed a disproportionate burden on minority voters who are less likely to have the required form of identification, and are likely to face substantial difficulties in trying to obtain one. Both of these cases are examples of how the court system is being used to successfully protect the right to vote in some states.
In addition to legal challenges there are many civil society groups working to protect the right to vote. The Lawyers Committee for Civil Rights Under Law runs the Election Protection program, which includes hotlines, legal volunteers in 28 states, poll monitors and voter education. The NAACP’s “Our Votes Matter Campaign” is actively engaging African Americans in increasing voter turnout and raising awareness in the electoral process. The American Civil Liberties Union is working to promote access as well as fight voter suppression and felon disenfranchisement.
In addition to the steps already being taken to protect the right to vote in the United States, there are two significant changes which can be made at the federal level to protect citizens’ rights to vote. While there is a large body of evidence that points away from the need to implement voter identification legislation there is substantial public and political support for these regulations. If the United States wants to continue to implement voter identification laws but also respect human rights, then it should also implement a national identification card system. If a national identification card was provided to all citizens with minimal financial and bureaucratic burden, this would reduce the discriminatory effects of the current voter identification laws.
Second, in order to address issues with voter registration and eliminate the discriminatory effects of voter roll purging, the federal government should develop a universal automatic voter registration system. If designed properly, a system that automatically registers citizens when they become eligible to vote and shares information with other government agencies will increase the number of voters who are registered while also decreasing the number of errors. Citizens interact with government offices on a regular basis and if these offices could share basic information such as names and addresses this information could be used to regularly update voter rolls. If combined with regulations that allow voters to make Election Day changes to their registrations as a safeguard, there could be substantial improvements to the accuracy of the voter rolls in the United States.
Future Challenges to Voting Rights
Unfortunately, we are likely to see a continued erosion of voting rights across the country. President-Trump and his cabinet pose significant threats to many of the human rights that U.S. citizens have come to expect. Some of the potential challenges to voting rights include:
- Jeff Sessions, the attorney general, is an opponent of the Voting Rights Act and has a history of inflaming fears of voter fraud. During the Reagan administration Sessions was not able to receive confirmation for a federal judgeship due to past racist statements and a record of falsely prosecuting African-American political activists (Berman 2016b, Stern 2016b).
- Senator Ted Cruz has introduced legislation that would require individuals to show proof of citizenship to vote in federal elections. As detailed above, requiring this type of identification without making adequate provisions to ensure that everyone has access to the required documents disproportionately disenfranchises poor and minority voters (Berman 2016c).
International Human Rights Law, along with the U.S. Constitution and numerous federal laws protect the rights of all Americans to free and equal suffrage. The right to vote is the celebrated cornerstone of our democracy, but it is currently being suppressed through strict voter identification laws, voter intimidation, purging of voter rolls and felon disenfranchisement. Advocates across the country challenge voter disenfranchisement via the courts and through public education. Local county electoral boards and commissions need to do more to respect, protect and fulfill the right to vote, and they can only do so with the full support of the federal government. Setting up an automatic universal voter registration system and national identification card program would reduce the discriminatory effects of voter roll purging and strict voter identification laws. Now is the time to take action to protect our fundamental freedoms. To paraphrase Abraham Lincoln’s 1838 Lyceum Address: “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.”
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Cammett, Ann. "Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt." Penn State Law Review 117, no. 2 (2012): 349.
Chokshi, Niraj. “How to Spot and Report Voter Intimidation” New York Times, November 8, 2016 accessed on December 9, 2016 http://www.nytimes.com/2016/11/09/us/politics/report-voter-intimidation.html?_r=0
Chung, Jean. “Felony Disenfranchisement: A Primer” The Sentencing Project, May 2016. Accessed on December 19, 2016 http://www.sentencingproject.org/wp-content/uploads/2015/08/Felony-Disenfranchisement-Primer.pdf
Collinson, Stephen. “Why Trump’s talk of a rigged vote is so dangerous.” CNN October 19, 2016. Accessed on December 20. 2016 http://www.cnn.com/2016/10/18/politics/donald-trump-rigged-election/
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Epps, Garett. “Donald Trump’s Attacks on the Rights of Minority Voters.” The Atlantic, October 13, 2016. Accessed on December 20, 2016. http://www.theatlantic.com/politics/archive/2016/10/trump-election-intimidation-minority-voters/504014/
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Harvey, Alice E. “Ex-Felon Disenfranchisement and Its Influence on the Black Vote: The Need for a Second Look.” University of Pennsylvania Law Review. Vol 142, No.3 (1994): 1145-1189
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Kaleem, Jaweed. “Election officials focus on whether voter ID laws contributed to Hillary Clinton’s defeat.” Los Angeles Times, December 17, 2016. Accessed on December 20, 2016 http://www.latimes.com/nation/la-na-minority-voter-suppression-2016-story.html
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Levy, Pema. “Judge Orders North Carolina to Restore Purged Voter Registrations.” Mother Jones, October 31, 2016. Accessed December 20, 2016. http://www.motherjones.com/politics/2016/10/north-carolina-voter-purge-lawsuit
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Wines, Michael. “Critics See Efforts by Counties and Towns to Purge Minority Voters From Rolls.” New York Times, July 31, 2016. Accessed on December 10, 2016 http://www.nytimes.com/2016/08/01/us/critics-see-efforts-to-purge-minorities-from-voter-rolls-in-new-elections-rules.html?_r=1
Voter ID laws are classified as follows (From: National Conference of State Legislatures 2016b):
Non-photo – “[N]on-photo identification such as a bank statement with name and address or other document that does not necessarily have a photo.”
Non-strict – “If a voter fails to show the ID that is asked for by law … At least some voters without acceptable identification have an option to cast a ballot that will be counted without further action on the part of the voter.”
Strict – “If a voter fails to show the ID that is asked for by law … Voters without acceptable identification must vote on a provisional ballot and also take additional steps after Election Day for it to be counted.”