DISSENTING STATEMENT

I am a professor who specializes in election law, and I served on the Carter-Baker Commission. I am writing separately to express my dissenting views to the Carter-Baker Commission's photo ID proposal. Unfortunately, the Commission rejected my 597-word dissent and allowed me only 250 words (this limitation on dissent was first announced at our final meeting). I believe that the issues before the Commission are of great consequence to our democracy and deserve more discussion. Thus, my concerns with the Commission's ID proposal and the shortcomings of the Commission's deliberative process are examined in greater detail here.

The Commission's "Real ID" recommendation is more restrictive than the photo ID proposal rejected by the Carter-Ford Commission in 2001, and more extreme than any ID requirement adopted in any state to date. The Commission's proposal is so excessive that it would prevent eligible voters from proving their identity with even a valid U.S. passport or a U.S. military photo ID card.

In addition, the Commission's Report fails to undertake a serious cost-benefit analysis. The existing evidence suggests that the type of fraud addressed by photo ID requirements is extraordinarily small and that the number of eligible citizens who would be denied their right to vote as a result of the Commission's ID proposal is exceedingly large. According to the 2001 Carter-Ford Commission, an estimated 6% to 10% of voting-age Americans (approximately 11 million to 19 million potential voters) do not possess a driver's license or a state-issued non-driver's photo ID, and these numbers are likely to rise as the "Real ID Act" increases the documentary requirements for citizens to obtain acceptable identification. The 2005 Carter-Baker Commission does not and cannot establish that its "Real ID" requirement would exclude even one fraudulent vote for every 1000 eligible voters excluded.
Read my entire dissent

Updates

Establishing Procedures for Credible Advisory Commissions

There were shortcomings in the process through which the Carter-Baker Commission adopted its Report. The Commission would have benefited from greater emphasis on expert testimony and empirical data, more transparency, clear rules established from the outset, and an adequate opportunity for dissent. Future advisory commissions should consciously develop fair procedures to enhance the quality of their deliberations and the credibility of their recommendations.

Especially with election law-where the judgment of incumbent politicians is sometimes clouded by self-interest-credible advisory commissions have the potential to play an important role in the development of law. Advisory commissions can focus public attention on the most pressing issues and provide a forum for expert analysis and independent factfinding.

An advisory commission cannot pass a law, allocate government funds, or invalidate an existing election practice-its primary power rests in its credibility. In addition to recruiting a panel of well-respected commission members, a fair process - one that is designed to draw on the best available research and to develop conclusions based on neutral analysis and deliberation-is critical to earning the public's trust. Absent such a process, a commission's decisions are likely to be dismissed by skeptics as predetermined, politically motivated, or uninformed.
Read the entire procedural analysis