MICHEL MARTIN, host: I'm Michel Martin, and this is TELL ME MORE from NPR News.
Coming up, as some voters prepare to head to the polls tomorrow, we take a look at an issue on the ballot in Ohio. It's a byproduct of this year's big push to curb public workers' collective bargaining rights. This measure would repeal that successful effort in Ohio. We'll talk more about it in a few minutes.
But first, voters in Mississippi go to the polls to elect a new governor tomorrow. They will also take up the hot-button issue of voter identification. Voters will decide whether they will have to show government-issued ID at the ballot box in the future.
So far this year, a total of seven states have passed new legislation requiring voters to produce identification at the polls. Supporters of these laws say they are just a simple, common sense measure to protect the integrity of elections. Opponents say these laws disproportionately affect minorities and the poor.
This debate is getting even more heated as we get closer to the 2012 election, so we thought this was a good time to address this once again. We've called upon two people with deep knowledge of the issue. Spencer Overton is a professor of law at George Washington University. He's also the author of "Stealing Democracy: The New Politics of Voter Suppression."
Also with us is Hans von Spakovsky. He's a senior legal fellow at the Heritage Foundation. He served in the Justice Department and as a member of the Federal Election Commission under President George W. Bush. Welcome back to you both. Thank you for joining us once again.
SPENCER OVERTON: Michel, thanks for having me back.
HANS VON SPAKOVSKY: Thank you.
MARTIN: Professor Overton, I'm going to start with you because you were a member of this Bipartisan Commission on Election Reform that met after the 2000 election, which of course went to the Supreme Court, as most people remember. This commission was chaired by the former secretary of state, former Secretary of the Treasury Jim Baker, Republican, Democratic president, former President Jimmy Carter, and the commission took up this question. What conclusion did the commission come to about this? They took a position on this whole question of voter ID law and what did they say?
OVERTON: That's correct. The majority of the commission said that we should have a photo ID that's phased in over time, that initially there should be an affidavit or a provisional ballot provided, but that eventually we should move to a strict photo ID. And I dissented, along with a couple of other members.
MARTIN: Well, if this bipartisan commission thought that this was a reasonable measure, what's your objection to it? Why do you continue to object to it?
OVERTON: My objection and my concern is really an empirical one. My concern is that more people will be excluded than the amount of fraud that is prevented. And just to reframe this, Michel, the question is not whether we should have a voter ID. You know, most states have had ID laws that have been very effective for decades. The question is whether states should move from their current position to a strict ID law that says, if you don't have a photo ID, you don't get to vote.
MARTIN: So Mr. von Spakovsky, let's bring you into the conversation. Critics of this photo ID law say this is really a political maneuver. If you look at the seven states that passed new voter ID laws this year, six of the seven - the exception of Rhode Island, we actually talked to the governor about that - have Republican legislature. So, does it really require a cynic to conclude that this is really about a political party trying to ensure that people who they don't think are going to vote for them will show up at the polls or be able to participate?
SPAKOVSKY: Well, I think that's just wrong. I mean, it's true that Republican legislators have been more interested in this kind of legislation. But, frankly, I think that's because leaders of the Democratic Party and, frankly, some civil rights organizations have the wrong idea about voter ID.
And, in fact, I don't think that their constituents agree with them. Because if you look at Rasmussen polling, for example, you find that across the board - African-Americans, whites, Hispanics - all think voter ID is a good idea and they do it in substantial majorities.
Look, Michel, I had to show a government-issued photo ID in your lobby to get into this studio. And, you know, NPR does that for basic security reasons, and that's the same reason that states are putting in this kind of provision.
MARTIN: But, Professor Overton, talk about this piece that former Alabama Congressman Artur Davis wrote in an editorial last month in the Montgomery Advertiser. He's a Democrat, African-American in one of those states that was kind of a hotbed of the civil rights movement. And he argued that the truth is that the most aggressive contemporary voter suppression is in the African-American community, at least in Alabama. He says it's the wholesale manufacture of ballots at the polls and absentees. He says, when he was in office, that as an African-American politician in this predominantly African-American district, it was easy to look at this in a reflective sort of way. He says he was wrong.
OVERTON: Right. So, I've been friends with Artur since law school, so I really do respect him. And if you look at Artur's comments, he actually focuses on absentee fraud, which is completely different than voting at the polls. The documented cases of fraud are absentee fraud, and I certainly think that absentee voting is worthy of study and attention. And I also commend Hans for being consistent in his position on absentee voting in terms of focusing on preventing fraud in that area.
But this is an example of how all fraud is not the same. And when we talk about tools to prevent fraud, we want them to be tailored to the real problem. Saying that we've got a lot of absentee ballot fraud is not a reason to have a photo ID at the polls.
MARTIN: And Mr. von Spakovsky, let me ask you about this. You said in one of your pieces for National Review Online that liberals are hyperventilating about these laws.
MARTIN: But if the issue is really the principle of making sure that we have free and fair elections, why aren't conservatives also hyperventilating about tactics like robo-calling people in certain districts and saying to them, you can't vote if you haven't paid your rent. Or flyers that people put up saying, you know, the election is actually on Wednesday. We don't tend to hear - you know, we tend to hear liberals being very concerned about, you know, access issues. But we don't tend to hear conservatives. So, is the issue really a matter of principle, why aren't they?
SPAKOVSKY: Well, look, when things like that have happened, I've spoken out against them because I don't think those kind of tactics should be done. And when they're illegal and violate federal or state law, they should be prosecuted.
But, look, let's talk about an example. You know, you mentioned, Michel, Mississippi, where they're going to have a referendum on it. Well, look, there's a reported court decision - anybody can look this up - from just a couple of years ago. The Justice Department went to court, won a judgment in Noxubee, Mississippi.
And there is evidence in that case, in the court decision. A witness, an African-American, a former deputy sheriff, talked about how he saw the defendant in that case, who was convicted of engaging all kinds of massive voter fraud, telling a young African-American woman that she should go into the polling place. She could use any name she wanted and she'd be able to vote. And why could she do that? Because they don't have a photo ID requirement in Mississippi.
MARTIN: Mr. Overton?
OVERTON: My response is that I agree with Hans that those people who commit fraud should be prosecuted. And he mentioned an example of that. The problem is that there is really just this lack of evidence. Even though a photo ID requirement could exclude up to 20 million Americans from voting in terms of legitimate Americans, it wouldn't prevent a large number of fraudulent votes. Existing studies of Ohio, for example, show that for every two million ballots cast, only one was improper. So...
MARTIN: So, is it your argument that the fraud, if it exists, is not extensive enough to warrant this measure? Is that your argument?
OVERTON: My argument is let's look at the evidence of how much fraud there is out there and how many people don't have IDs and compare the two. And at least right now, the evidence suggests that many more people lack photo IDs than commit fraud.
MARTIN: Mr. von Spakovsky?
SPAKOVSKY: Well, I'm not sure how much fraud Spencer, with all due respect, thinks is acceptable. And as to this constant claim that this is going to keep people from voting, that has been disproven in the court room and it's been disproven in the polling place.
Look, Georgia and Indiana have the two strictest photo ID laws in the country. Those laws have been now in place for five years. They've had a presidential election. They've had a congressional election. And if you look at the turnout in those races, you see that the turnout of African-American voters, Democratic voters, did not go down. In fact, it went up.
You know, so - and in the court room, the cases, lawsuits filed against them were dismissed. And one of the reasons was, no matter how many people they claim would not be able to vote, they couldn't produce a single witness to be able to...
MARTIN: I'm going to ask him about that, but how much voter intimidation do you feel is acceptable? Because the commission on which Professor Overton served said that there's really no evidence that either practice is particularly widespread, either voter intimidation or voter suppression. Does that make sense?
SPAKOVSKY: The Supreme Court said in the Indiana case that this kind of fraud could make a difference in a closed election. And we have closed elections all the time. We had a Senate race in Tennessee in 2005 that was won by 13 votes. It was overturned because after they investigated, they found fraud and that's a basic security measure you take. You also should take basic security measures to prevent absentee ballot fraud.
MARTIN: OK. Professor Overton, final thought?
OVERTON: Basically, courts have found that photo IDs do burden voting rights. Certainly, the exclusion of legitimate voters is much more likely to determine outcomes than the amount of fraud that's out there. And, you know, this is basically - the ID advocates propose that we throw out the baby simply because the baby has a drop of bath water on the baby's arm. Some of these advocates don't like the way that the baby may vote. But we've got to save the baby, save 20 million legitimate American voters and focus on real tools that deal with fraud, that deal with the drop of bath water.
MARTIN: Mr. von Spakovsky, I gave him the first word. I'm giving you the last word, very briefly.
SPAKOVSKY: Georgia had the largest turnout of African-American voters in its history in the '08 presidential election after its photo ID law went into effect. The same thing happened in 2010, a 7 percent increase in the turnout of African-American voters. The idea that that will somehow prevent them from voting has been proven to be untrue.
MARTIN: OK. We will see. Hans von Spakovsky is a senior legal fellow at the Heritage Foundation. He served in the Justice Department and served as a member of the Federal Election Commission under President George W. Bush. Spencer Overton is a professor of law at George Washington University. He is the author of "Stealing Democracy: The New Politics of Voter Suppression." They were both kind enough to join us for this civil discussion in our Washington, D.C. studios. I thank you both so much.
SPAKOVSKY: Thanks so much. Transcript provided by NPR, Copyright NPR.