On November 2, Oklahoma voters will confront a long list of state referendum items on which they may vote “yes” or “no.” Second on the list—tucked between per-student educational spending and revised term limits—is State Question 746, which proposes to amend the state’s voter identification requirements. Supporters tout the measure as a necessary and low-maintenance way to keep state elections honest. After all, we require a photo ID for any number of mundane daily transactions, like writing a check or boarding an airplane. However, a small but impassioned group of opponents argues that while seemingly harmless, in reality the voter ID requirement is the partisan enactment of a runaway legislature, and it threatens the most basic of Oklahomans’ constitutional protections.
If Oklahomans vote “yes” on State Question 746, then effective on July 1, 2011, every person appearing to vote in Oklahoma must first present (1) a state, tribal, or federal government-issued photo ID or (2) a voter identification card issued by the County Election Board. All government-issued photo IDs must have expiration dates, and must not be expired on the date of the election, except for some identity cards issued to people over 65. These requirements would apply to all in-person voting, including in-person absentee voting.
Senator John Ford (R), who sponsored the bill in the state senate, has been trying to get voter ID legislation through the legislature for the past three years. In an interview for this article, Senator Ford commented, “I think we have a tremendous integrity in our current voting system.” In his view, the voter ID bill is a preemptive strike to ensure that integrity remains beyond reproach. When asked about the possible effect of the measure on minority and low-income voter turnout, Senator Ford responded that the measure does not disenfranchise anyone, nor does it put voters to additional expense, and no one will be turned away from the polls. Any voters who can not present acceptable identification on election day can cast a provisional ballot, accompanied by a sworn statement. There is no charge for obtaining a voter identification card from the County Election Board, and if a voter loses their card, the Board will mail a replacement to their home free of charge.
The voter ID proposal comes to the 2010 State Questions list with a somewhat checkered past, having passed the state legislature in 2009 as SB 4, only to be vetoed by Governor Brad Henry (D), and then passed again during the same legislative session, this time as SB 692. Upon passage, the legislature sent the measure to the 2010 State Questions list as a legislative referendum item, executing an end run around Governor Henry’s veto power. By law in Oklahoma, certain measures must go to popular referendum, and may therefore avoid presentment to the governor, as SB 692 did. However, opponents of SB 692 argue that it is not the type of measure that the Oklahoma constitution allows to avoid presentment, and as such its presence on the November 2 ballot is unconstitutional.
Aside from the alleged procedural impropriety, opponents of the voter ID measure claim that the ID requirement obstructs “the free exercise of the right of suffrage” in violation of Article 3, Section 5 of Oklahoma’s constitution. They argue that SB 692 will chill voter turnout by certain groups—including minorities, the elderly, the poor, and the indigent—which historically vote Democratic. For these groups, even the smallest requirements may be major impediments. For instance, free ID cards issued by the County Election Board must be mailed to the voter, but voters without reliable mail service or permanent addresses will not receive them. Additionally, opponents note that there is no history of voter fraud in Oklahoma which would justify enactment of an ID requirement.
Most of Oklahoma’s neighbors—including Arkansas, Arizona, Missouri, and Texas—require some means of identification from voters, but do not require it to be government-issued or to include a photo. Of the neighboring states, only Louisiana requires a photo ID. Nationwide, twenty-six states have enacted some form of voter ID requirement, and many of these requirements have been challenged in court.
In July, the League of Women Voters, the Coalition of Hispanic Organizations, and others filed a lawsuit in Oklahoma, raising both substantive and procedural objections to SB 692 based on the Oklahoma constitution. The plaintiffs were represented by Jim Thomas, a professor at the University of Tulsa College of Law, and one of his former students, litigator Marvin Lizama. Thomas and Lizama made an impassioned bid before the state district court, seeking (1) a temporary injunction to prevent the voter ID measure from being placed on the 2010 State Questions list and (2) declaratory judgment on the constitutional issues. When it was discovered that ballots had already been printed, effectively mooting the injunction, they agreed to a dismissal without prejudice. Thomas and Lizama will stay further litigation pending the outcome of the referendum. If the voter ID measure succeeds on November 2, they plan to re-file their suit immediately.
In separate interviews for this article, both attorneys strongly objected to the voter ID measure as an affront to the free exercise of Oklahomans’ right to vote, and both said they are prepared to litigate the issue up to the Supreme Court of Oklahoma if necessary. Lizama has vowed he will not bring the required identification to the polls, even if the voter ID measure goes into effect. He has never done so before, he says, and “I will not do it now and I will not do it in the future.”
Allison Carroll is a third-year student at William & Mary Law School.