This article originally appeared in The Guardian.
Restrictive “voter identification” laws pushed by Republicans, and widely regarded to be ineffective and discriminatory, have cost taxpayers at least $36m in just a few states, the Guardian can reveal.
It’s well documented that restrictive voter ID laws are ineffective and discriminatory. The type of voter fraud they claim to prevent is a myth, and the burden of showing an ID disproportionately lands on students, low-income voters and African Americans.
However, these laws are also extraordinarily expensive to implement and defend. Based on information obtained through open records requests, the Guardian has found that the partial costs of litigation, free identification cards, public education and other fees amount to tens of millions across the country.
However, even with many states having to slash their budgets due to the economic crisis, one state, Kentucky, has decided to spend millions implementing a new ID law.
While the rest of the state was under “stay-at-home” advisories because of coronavirus, the Kentucky legislature convened in early March and April in order to pass its voter ID bill and then again to override the governor’s veto. When SB2 went into effect on July 15, Kentucky became the 19th state, according to the National Conference of State Legislatures, that requires voters to present a photo ID at the polls, and voters who apply for absentee ballots must include a copy of their ID.
But passing this bill required some expensive tweaks – most significantly, the state would have to offer IDs for free to all residents or the law would probably be ruled unconstitutional, says Wendy Weiser, director of the Democracy program at the Brennan Center for Justice, a non-partisan think tank and public interest law center. According to the bill’s fiscal note statement, just that provision of the law could cost up to $3.6m a year. Senator Robert Mills, the bill’s primary sponsor, didn’t respond to a request for comments about whether SB2 was an appropriate use of taxpayers’ money, nor did 11 of the co-sponsors.
When Georgia passed its original voter ID bill in 2006, it offered free IDs only to those who swore they could not afford them. According to a report from the Brennan Center, a federal court later blocked that aspect because “many voters for whom a fee would pose a burden might be reluctant to take the oath out of embarrassment or because they do not believe they are indigent.” In fact, the Missouri supreme court found that the state must pay even for the documents required to get the ID, such as a birth certificate.
Since 1 January 2006, Indiana, which also has a photo ID law, has spent nearly $30.5m to issue roughly 2.7m of these free IDs.
Meanwhile, in Texas, the process of implementing a strict voter ID law dragged on for almost seven years, during which the state spent at least $3.5m on attorney’s fees, outside counsel, travel expenses and expert witnesses. In addition, the litigation was so time-consuming that the attorney general had to pull in lawyers from other departments. In total, the state invested more than 12,400 hours in these cases.
Ultimately, Texas’s ID law survived these challenges – but at a high price. In May, a federal judge ordered the state to pay the plaintiffs’ $6.8m in legal fees (the state says it will appeal against the ruling).
Often these lengthy lawsuits exacerbate another set of costs for states: educating the public every time there’s a change.
After Georgia passed its ID law, it ran public service announcements on unpopular radio stations during off-peak hours and planned to distribute a letter that, according to the courts, was “not reasonably calculated to reach the voters who are most likely to lack a photo ID.” However, that court went on to add that “if the state undertakes sufficient steps to inform voters of the [law’s] requirements before future elections, the statute might well survive a challenge.”
During the first three years of its ID laws, Kansas spent at least $430,000 on its public outreach, while Wisconsin spent $631,899 in its first year alone. Even with heavily discounted rates from TV and radio stations, the critical swing state has spent nearly $1.2m on its “Bring It to the Ballot” campaign, which includes radio spots, brochures and TV ads.
Yet the $36m price tag may only be the tip of the iceberg. The departments of justice in several states claim that their lawyers don’t track their time, making it impossible to document the bulk of the costs of defending these ID laws. “We want to get you what you need,” said Gillian Drummond, communications director for the Wisconsin DoJ when asked for a breakdown of the agency’s litigation expenses, “but I can’t create something that wasn’t tracked previously.”
Despite the recent passage of SB2 in Kentucky, the legal tide may be turning. When these voter ID laws first were ratified, “the understanding of voter fraud was very ill-formed”, says Weiser. “The supreme court’s decision to uphold the [Indiana] law was based on conjecture and was highly deferential to states.”
Since then, empirical research has shown how discriminatory these laws are in practice, which has helped persuade at least one judge that they aren’t constitutional. Richard Posner, a Reagan appointee, wrote the original decision upholding Indiana’s ID law. However, in 2014, he voted to suspend Wisconsin’s law, writing in a dissent on the 7th circuit court of appeals that legislation like it was “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”
As expected, Kentucky’s SB2 was challenged almost immediately in state and federal court. Says one of the lawsuits, “Put simply, a pandemic is no time to impose a new requirement for identification that forces voters to enter government offices, have in-person interactions with election officials, and/or enter other public spaces to obtain a copy of their ID.”
The case could reach the supreme court, which has recently been voting to uphold voter restrictions in Florida, Wisconsin and Alabama. Experts say it’s likely the law will be ruled constitutional, but either way, taxpayers will foot a sizeable bill.