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Tell the SBE: An Expired Photo ID Is a Valid Photo ID

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 Virginia now requires voters to present photo identification to cast their votes in person.   See SBE guidance.  Although the photo ID requirement unnecessarily burdens a fundamental right, the Virginia State Board of Elections (SBE) has taken a somewhat reasonable approach to its implementation.  Specifically, on June 10, 2014, the SBE appropriately determined that an expired identification card (e.g., a driver’s license) would count as a valid photo ID.  Republican State Senator Mark Obenshain, however, the original sponsor of the bill, and someone who never saw a voting restriction he did not like, complained and the SBE has proposed a more restrictive regulation.  Please submit your comments opposing the proposed regulation change by 11:59 pm, Monday, August 4, 2014 here.

Here are some of the reasons to oppose the proposed restrictions on photo IDs:

  • The SBE got it right the first time – expired IDs should count.
    • The purpose of the voter photo ID requirement is to verify the identity of voters.  An identification card with a photograph and name is sufficient to prove the voters identity.  The expiration date has no bearing on an individual’s identity.
    • The statute (Va. Code §24.2-643) requires a “valid” identification, but many of the accepted forms of photo ID do not include expiration dates.  In fact many (Virginia) college student IDs, employee ID badges, and even the free voter ID cards you can obtain at your local registrar (if you lack other ID), do not contain expiration dates. Requiring some IDs to be unexpired, while others are not, it provides an inconsistent application of the law.
    • The new regulation requires “legally effective” IDs – if an ID lacks an expiration date, does the election official have to try to check employment or school records to determine if it is valid?  Even an unexpired driver’s license may be suspended and therefore not legally effective – does the official have to check that too?  Any such extra steps are unnecessary and will slow voting and lead to long lines.
    • The proposed restriction will adversely affect certain groups.  For example, many older voters may have expired licenses as their only photo ID, and they should be able to use them.  College students may not have driver’s licenses and an expired school ID may be their only photo ID.  And do we really want to tell soldiers with expired military IDs that they can’t vote?
  • As a legal matter, the SBE has the authority to issue regulations defining a “valid” ID because the Va. Code does not define the phrase.
    • The Board has express statutory authorization to make the rules and regulations that govern the administration of Virginia elections. Va. Code Ann. § 24.2-103(A).
    • The term “valid” is not defined by Virginia statute or regulation. While Va. Code Ann. § 24.2-643(B)(the “Voter ID” law effective July 1, 2014) uses the term “valid” to describe a necessary element of a permitted form of voter ID, it does not explain what in fact constitutes a “valid” ID.  Moreover, the term is not defined in Elections Title 24.2.
  • Changing the regulations now will confuse voters and make it harder for them to ensure they have an acceptable photo ID.
    • This is the third ID requirement Virginia voters will be subject to in three years – each more unnecessary and burdensome than the last.
    • Implementing the photo ID law requires an extensive voter education effort, which the general assembly has not appropriately funded as it is – changing requirements will make that effort more difficult.
    • A final decision on the proposed change may not happen until mid-August – potentially changing the rules close to 60 days before the election creates unnecessary voter confusion over what ID they need to vote.
    • Importantly, the SBE, local electoral boards, and civic and other organizations have been educating voters about current requirements – changing the rules now would undermine these efforts and be grossly unfair to Virginia’s voters.