As an election law professor, that reality leads me to a revealing confession: although I have advocated against voter ID laws for years, I played a role in Kentucky’s passage of a new photo ID law for voting in 2020. But I firmly believe that the law would have been worse than the final enactment without my advocacy, harming a lot more voters. That experience—an effort to moderate the new law as much as possible while accepting the inevitability of its passage—can offer lessons to other states considering new election laws, especially as President Joe Biden calls for a new kind of politics that crosses party lines.
It’s a tale of listening and compromise—what some academics might term deliberative democracy—where the legislative process mostly worked the way it should. It can be a model for the country and might just help lower the temperature all around.
In November 2019, Republican Michael G. Adams was elected as Kentucky Secretary of State on a promise to enact a photo ID requirement for voting. Adams then asked me, as an election law professor in the state, to serve on his transition team. As I reminded him, I opposed his number one campaign promise on voter ID. But, he said that was the exact reason he wanted me on his team: so he could hear dissenting voices. Of course, perhaps he was simply hoping that my involvement could lend the effort an air of legitimacy. But I was game to help out if it would improve Kentucky’s election administration, which ranks toward the bottom nationwide in a nonpartisan measure known as the Elections Performance Index.
The result, after weeks of negotiations, hearings, floor debates, and many changes, was one of the most reasonable photo ID laws in the country. The passage of the law also gave the Republican Secretary of State a political “win” that could satisfy his base while he negotiated with Democratic Governor Andy Beshear to make it easier to vote during the pandemic.
Secretary Adams’s first proposal was a photo ID requirement modeled after Indiana’s law, which the Supreme Court refused to invalidate in 2008. But, as I pointed out to him, the Court had left the door open to future challenges with better evidence of a law’s disenfranchising effects, and the history of voter ID laws did not end with that decision. The Indiana law was a poor model because the list of permissible IDs was too limited and the rules for voters without an ID too onerous. For example, student IDs from private colleges in the state do not suffice. Further, Indiana’s law requires non-expired IDs (or the expiration date must be after the most recent general election), and a voter without a photo identification must fill out a separate provisional ballot that will count only if the voter travels to the county clerk’s office within ten days to either show an ID or fill out an additional form. This arduous process would lead to disenfranchisement.
The initial version of Kentucky’s proposed photo ID law also required a non-expired ID. Also, it would have forced voters without photo identification to go to the county clerk’s office within three days. That would make the Kentucky version even worse than Indiana’s law and came closer to the stricter laws in states like North Carolina, Texas, and Wisconsin, which had been enmeshed in litigation due to their potential for discriminatory disenfranchisement.
Luckily, Secretary Adams and the Republican legislative leaders were willing to listen. Part of their motivation, I’m sure, was to avoid protracted litigation once the law passed. But they also expressed a desire to craft a law that they could justify as good policy—even if they were wrong on the need for an ID requirement in the first place.
The law went through numerous changes during the legislative process. In part spurred by my public commentary and legislative testimony, as well as advocacy from groups like the League of Women Voters, the ACLU of Kentucky, and the Kentucky State Conference of the NAACP, legislators expanded the kinds of IDs that were permissible and removed the expiration date requirement. In perhaps the most notable change, the revised version allowed voters who did not have a photo ID at the polls to show a non-photo ID (such as a credit card or social security card, which was consistent with the prior law), fill out a simple affidavit in which they would check a box to indicate their reasonable impediment to obtain a photo ID, and then cast a regular ballot. Voters without a photo ID would not have to take any additional steps, such as traveling to the county clerk’s office.
The final enactment was one of the mildest photo ID laws in the country: any federal, Kentucky, or local-issued photo ID, even if it is expired, satisfies the new requirement, as do university or college IDs from any state. The IDs need not list an expiration date, which is significant because most student IDs from Kentucky do not have one. Voters without a photo ID can show a non-photo ID and then vote a normal ballot like everyone else after filling out a one-page Voter Affirmation form that attests to the voter’s identity indicates their reasonable impediment to obtaining a photo ID.
The Governor still vetoed the bill in April 2020, saying the law would unnecessarily make it harder to vote, especially during a pandemic. But as expected, the legislature overrode his veto.
The main lingering problem, beyond the law’s very existence, was that the state sought to implement the law in November 2020, during the pandemic. Organizations such as the ACLU of Kentucky, the League of Women Voters of Kentucky, the Kentucky State Conference of the NAACP, and the Lawyers’ Committee for Civil Rights Under Law brought suit, but notably, they did not directly attack the substantive merits of the law: they instead sought to delay its implementation. But after the Governor and Secretary of State issued emergency regulations to ease the law’s burdens for the November election, the plaintiffs dropped their lawsuit. In particular, the bipartisan emergency election regulations allowed COVID-19 hurdles to count as a “reasonable impediment” and permitted absentee voters to satisfy the law through the online ballot request portal by inputting their drivers’ license information or filling out an online reasonable impediment form.
In the end, the new photo ID law seemed to have a tangible effect on only a small number of voters. According to the Kentucky Secretary of State’s office, just 0.04% of all voters (757 voters in total out of over 2.15 million cast) had to fill out a reasonable impediment form after presenting a non-photo ID before casting their ballot. Of course, the new law might have deterred some voters from showing up, and we cannot ignore the disproportionate effect photo ID requirements have on underrepresented populations. Some Democrats railed against the law on the House floor, pointing out the racist history of restrictive voting laws. Photo ID laws are pernicious in part because we cannot accurately measure their full disenfranchising effect. If I had my way, Kentucky would not have a photo ID law and would instead focus on secure ways to expand voter opportunities. But the political reality was that the Republican majority in the legislature would pass a photo ID law no matter what. Better, I thought, to make that law as mild as possible.
In addition, the law’s enactment gave the Republican Secretary of State Adams wiggle room to come to an agreement with the Democratic Governor Beshear on how to run the election during the pandemic. Adams could cite this “election integrity” measure to placate his base while agreeing to meaningful voter expansions. Kentucky created an online ballot-request tool for absentee voters, expanded who could vote by mail, introduced early voting, placed secure ballot drop boxes across the state, and created countywide Vote Centers so that individuals could vote anywhere in their county instead of being tied to their home-based precinct. These voter expansions did not produce any known fraud. But they did increase turnout considerably, although that could also be the result of the tumultuous Biden-Trump contest and the media barrage surrounding the challenge to Senator Mitch McConnell. When we make it easier to vote, more people participate—and that makes our democracy stronger. Moreover, Republicans did better in Kentucky than in previous years, showing that higher turnout does not necessarily portend Democratic gains. And even though voter ID laws don’t enhance election integrity given the lack of widespread voter fraud, officials could point to the compromise photo ID requirement to give the public renewed confidence in the outcome.
So why was the Kentucky 2020 election story mostly successful? Republicans, who wielded power, could have passed the most stringent law possible given that they had the votes in the legislature. Why did they moderate instead?
I think it was a combination of factors: a Secretary of State committed to democracy, who sought dissenting viewpoints and incorporated changes throughout the process, a desire from the Secretary of State and key legislators to avoid litigation if possible, and an underlying legislative theory of “deliberative democracy,” or the notion that legislation should include advocacy from all sides. That process both moderated the law and gave it greater legitimacy. There was also an inherent need to maintain bipartisanship given that the Governor and Secretary of State were from opposite parties, and Kentucky law required both to agree to an emergency election plan for the pandemic.
Our democracy cannot function without common ground about the fundamental values that undergird election administration. Of course, a key component of democracy is that the losers must accept defeat. That is non-negotiable and, as we saw, the consequences were stark when a portion of the Republican Party peddled lies about voter fraud in an attempt to overturn the 2020 election. But, assuming that the core principle of democracy remains, we should seek compromise where possible. Even if legislators in your state will not listen to a law professor, they will listen to their constituents—or you should vote them out. And if they are dead set on passing, say, an unnecessary voter ID requirement, perhaps they will consider compromises to make the law less harmful than it otherwise might be.
Maybe a mild photo ID law is a reasonable tradeoff for expanding voter access. Election law is not only black-and-white. It can go beyond a binary choice between voter suppression and voter access. Shades of gray are possible, even in a deep red state like Kentucky. That does not mean that we should give up on the core principles surrounding the right to vote or give in to the lies about voter fraud. But it does suggest that it might be counterproductive to dismiss all election integrity proposals without seeing if we can offer reasonable suggestions to ease the law while advocating for voter expansions in return.
Moderation is attainable if we all come to the negotiating table in good faith. By giving a little on both sides, perhaps we can produce an election system that enjoys greater legitimacy all around.