What’s the Deal With Photo ID Laws?

On Jan. 6, Ohio Gov. Mike DeWine (R) signed House Bill 458 into law, the first voter suppression bill to be enacted after the 2022 midterm elections. H.B. 458, among other restrictions, imposes a strict photo ID requirement for voters, mandating that voters in Ohio  show a valid photo ID in order to vote, with few exceptions. While Ohio’s law is particularly egregious, it’s not the only state with a photo ID law. In total, 10 states now have a strict photo ID law on the books, many of which have been implemented in the last decade in the wake of the U.S. Supreme Court’s 2013 decision in Shelby County v. Holder. To understand why these laws are increasingly popular, particularly in red states, we’re diving into their history, where they can be found and why they’re problematic for voters.

Photo ID laws are a relatively recent phenomenon.

While some states have had some sort of identification requirement to vote for decades, ID laws that require photo identification or offer few exceptions only started appearing in the last twenty years or so. In the aftermath of the chaotic 2000 presidential election in Florida, states and federal lawmakers began looking for ways to update election laws and increase election security.

In 2002, Congress passed the Help America Vote Act (HAVA). The bill eliminated some forms of voting machines, created the Election Assistance Commission and set minimum election administration standards. Included among these standards was a proof of ID requirement for a subsect of voters: all first time voters must show some form of ID at the polls if they registered to vote by mail. States, however, were free to impose additional ID requirements.

In 2005, Indiana became the first state to enact a strict photo ID law. Indiana’s law required voters to show a photo ID issued by the United States or the state of Indiana. Voters without an acceptable ID could vote with a provisional ballot, but they had to bring a photo ID to a designated government office within 10 days of voting. The law was challenged in court in a case that ultimately made it all the way to the U.S. Supreme Court. In Crawford v. Marion County Election Board, the Court upheld the law, finding that photo ID laws don’t automatically violate the U.S. Constitution. The Supreme Court’s decision upholding the Indiana law served as a green light for proponents to push for stronger ID requirements in other states with five states enacting photo ID laws just three years after Crawford.

Less than a decade later, photo ID laws got another boost from the nation’s highest court, this time from its ruling in Shelby County v. Holder. The decision freed certain states from needing to get approval from the U.S. Department of Justice or a federal court before enacting changes to voting laws. After Shelby County, five of those states — Alabama, Texas, North Carolina, Mississippi, Virginia — enacted laws requiring a photo ID or strengthening existing requirements. North Carolina, however, has yet to succeed in implementing a photo ID requirement due to ongoing litigation and Virginia repealed its photo ID requirement in 2020.

While nine states have strict photo ID laws, a total of 35 states require some sort of ID to vote.

Currently, 35 states have enacted some sort of ID requirement to vote beyond the HAVA minimum. These states can be categorized by whether they require a photo ID or allow voters to prove their identity using a non-photo ID like a bank statement with their name and address or other document. These states can be further subdivided into how strict the law is. For example, some states with ID laws allow voters to sign an affidavit of identity and vote with a regular ballot if they lack an acceptable ID. In others, voters can vote with a provisional ballot that election officials will work to verify and count without the voter needing to do anything else. In contrast, states with strict ID laws require voters who lack an acceptable ID to vote with a provisional ballot: however, these ballots will only be counted if the voter returns to an election office with an acceptable ID.

Once Ohio’s law takes effect later this year, nine states will have a strict photo ID law: Arkansas, Georgia, Indiana, Kansas, Mississippi, Missouri, Ohio, Tennessee and Wisconsin. Ten states — Alabama, Florida, Idaho, Louisiana, Michigan, Montana, Rhode Island, South Carolina, South Dakota and Texas — have a non-strict photo ID law that provides some method for voters without acceptable ID to still vote and have their ballot counted, such as allowing a voter to sign an affidavit. 

States also differ by the kind of acceptable photo IDs. While some states allow additional forms of ID like a student ID, others only permit specific forms of government ID and usually require that these IDs be unexpired. Ohio’s new law, for example, only allows an unexpired Ohio driver’s license or ID, U.S. passport, interim ID form or military ID. No other form of ID, even if it has the voter’s picture and full name, is acceptable.

Not all voters have access to photo IDs and can be disenfranchised by these laws.

When politicians try to justify photo ID laws despite the rareness of fraud, they often imply that everyone already has a photo ID like a driver’s license, but that isn’t actually true. In fact, some experts estimate that as many as 11% of eligible voters lack the kind of IDs required by the strictest photo ID laws.

Obtaining a sufficient photo ID under the law isn’t always easy. Government IDs cost money, which low-income voters may not be able to spare. Even when states offer IDs for free, the documents needed to get an ID like a birth certificate or marriage license aren’t. In fact, the costs involved to obtain these documents are often greater than the costs of the notorious poll taxes that disenfranchised thousands of Black Americans in the Jim Crow South. On top of the costs needed, voters also have to travel to government offices. Many voters might lack reliable transportation or do not live near one of these offices, or the office may only be open during limited and irregular hours. Combined, all these factors make obtaining government-issued photo IDs harder than many politicians suggest.

This isn’t just speculation, either. Recent research suggests strict photo ID laws can lead to depressed turnout — especially among minority voters. A study in Texas found that a photo ID law in that state would have led to at least 16,000 fewer voters in 2016. While the impacts likely vary between states, it seems to save to assume at least some voters end up disenfranchised by these laws.

Ultimately, strict photo ID laws often require more from voters than they need to. The stated purpose of such laws is to prevent fraud by ensuring that voters are who they say they are. But rather than take the least restrictive path to achieve this goal, these laws impose additional unnecessary burdens. If the goal is just to prove identity, why do voters have to present a specific government ID? Why are out-of-state IDs unacceptable if the goal is to just prove someone is who they say they are? While some might argue an in-state ID proves a voter is a resident of the state, then why are passports, which don’t contain any information about where a voter lives, accepted? Why are concealed carry permits allowed, but student IDs, even those from state institutions, rejected?

When evaluating any measure that could restrict voting, you have to compare the goal with the means used. If there’s a large gap between what the means require and what’s necessary to meet the goal, it’s likely the measure is too restrictive. Strict photo ID laws fail to clear this test.

Other states are looking to follow in Ohio’s footsteps.

While Ohio was the first state to enact a photo ID law this year, it might not be the last. Several photo ID bills have been introduced in Nebraska after voters approved an initiative to require IDs last year. Pennsylvania Republicans are pushing to add an amendment requiring ID to vote to the state constitution, which passed the state Senate in January. To the south in West Virginia, legislators have a proposed bill that would enact a photo ID requirement in the state for the first time.

Other states are moving to strengthen existing ID requirements. The Idaho Legislature is considering a bill that would remove student IDs from the list of acceptable photo ID and remove the option for voters to sign an affidavit swearing their identity. Arizona Republicans have introduced a myriad of measures making the state’s ID requirements more stringent, including House Bill 2232 which would make only state-issued IDs valid for voting. As long as Republicans are hyper focused on election integrity and claims of voter fraud, we’re likely to see continued efforts to enact and strengthen ID requirements to vote.