The presidential commission that was tasked with reviewing and making recommendation about the election process stayed away from one of the country’s thorniest legal issues—the merits of voter identification laws.
The commission, led by Washington lawyers Robert Bauer and Benjamin Ginsberg, issued recommendations Wednesday that included the expansion of early voting and better management of voter rolls. The report, however, did not address whether certain voter identification requirements—which the U.S. Department of Justice has fought against—should be a component of good election management.
Voter ID challenges are playing out in state and federal courts across the country. A state court judge last week struck down Pennsylvania’s law requiring voters to show photo identification at the polls is unconstitutional, and the Department of Justice has ongoing Voting Rights Act suits challenging identification laws in North Carolina and Texas.
Bauer, a Perkins Coie partner who was President Barack Obama’s counsel during the 2012 election, said Wednesday afternoon that the commission was not asked to address the voter ID issue. Bauer, speaking with reporters, also said the commission was not tasked with assessing the Voting Rights Act. Last year, the U.S. Supreme Court, divided, struck a key provision of the anti-discrimination law. Members of Congress last week unrolled bipartisan legislation to amend the VRA.
“There are certain federal and state legislative matters, and also matters, as you know, in active litigation, that were not within our charge to address,” Bauer said at a forum hosted by George Washington University Law School. “So that, and a few others like Voting Rights Act enforcement and the amendments that were recently introduced were not ones on which the commission expressed an opinion.”
Rick Hasen, a professor of law and political science at the University of California at Irvine, said there was a tradeoff at play—the unanimity of the commission’s voice on a narrower set of issues or a potentially divided panel that viewed its charge more broadly. Sitting with Bauer as the commission co-chair, Hasen noted, was Ginsberg, a Patton Boggs partner and counsel for Mitt Romney during the 2012 presidential election.
“I think that Bauer and Ginsberg interpreted the President’s charge as one to come up with common sense and non-controversial proposals to make serious improvements in election administration,” Hasen said in an email. “Indeed I would guess that was the price for Ginsberg’s participation in the process.”
“Sure, the charge could have been read more broadly, but then you would not have gotten the unanimity and forcefulness of the set of recommendations,” Hasen said. “So it was a tradeoff.”
Hasen wrote in a blog post at his Election Law Blog that the commission did make one factual statement on voter fraud. “Fraud is rare, but when it does occur, absentee ballots are often the method of choice,” the commission report states. Defenders of voter ID laws argue they’re needed to combat fraud.