electionlineWeekly Looks at Gender Requirements in State Registration Laws

[Image via cardinalnewmansociety]

Back in January, I wrote about a proposed new law in Idaho that would eliminate gender information on state voter registration forms. electionline’s Mindy Moretti decided to take that one step further and see what the status of the issue is nationwide – and it’s the subject of her piece in the latest electionlineWeekly:

Voters come in all shapes, sizes, colors, ages and gender. Most of that information, other than age, is irrelevant to a voter’s eligibility to register and cast a vote. However, for some voters, the question of gender on a voter registration form can present a problem.

According to a report from the Williams Institute at the UCLA School of Law, in 2016, an estimated 0.6 percent of adults in the United States, or about 1.4 million individuals identify as transgender. Populations vary by state and by age group.

Hawaii, California, Georgia, and New Mexico all have 0.8 percent of their populations that identify as transgender where was North Dakota, Iowa, Wyoming, Montana and South Dakota have just 0.3 percent of adults that identify as transgender.

More young adults, aged 18 to 24 identify as transgender (0.7 percent) than do those 65 and older (0.5 percent).

“We understand that collecting demographic information can sometimes be helpful, but we are unaware of any compelling reason to include gender in the voter registration process,” said Jay H. Wu, communications manager for the National Center for Transgender Equality Action Fund.

Electionline reached out to the elections directors in all 50 states and the District of Columbia and heard back from 34 of them and the District. Whether or not states collect gender information on voter registration forms varies with most of the responding states saying they do not request that information, or that it is optional.

Of the 34 states and the District that responded, 15 do not ask for the information, 13 have a box on their voter registration forms for gender, but do not require it, six require a perspective voter to complete the gender and North Dakota does not have voter registration.

Of those six that do require gender information Virginia law does require the information be gathered; however, the Administrative Code cites that gender is not material for registration.

“Gender is a required field on the voter registration application form under Va. Code Section 24.2-418(A). However, the State Board of Elections (SBE) and the Department of Elections (the Department) has determined that this information is not material for eligibility or registration purposes,” explained Chris Piper, Virginia’s new elections commissioner. “As a result, Administrative Code 1VAC20-40-70 cites gender as being not material for registration, and prohibits general registrars from denying an applicant who does not provide this information.”  

Earlier this year in Idaho, the secretary of state’s office proposed legislation that would have done away with the gender requirement on the state forms.

“With concerns nationally about protecting personal information, we looked at what would be required in order to vote,” explained Tim Hurst, deputy secretary of state. “Gender is not a piece of information we needed to keep since both men and women have equal rights in voting.”

Hurst said the state had not experienced a problem to date, but the proposed legislation was meant to avoid the possibility of a problem. Unfortunately, according to Hurst, the legislation is dead for this year.

A check with Wendy Underhill at the National Conference of State Legislatures did not find any other pending legislation regarding gender requirements on voter registration forms.

Although there is no other legislation currently pending, that doesn’t mean that other elections offices aren’t thinking about it.

In Washington, after questions were raised by one of the county elections officials in 2016, the state broadened the response field so now, instead of just asking male or female, the form lets a perspective voter fill in whatever gender they wish.

New Mexico Director of Elections Kari Fresquez said there has been some discussion of at least broadening the options from male and female, but there has been no formal legislation push at this point.

Connecticut asks for gender on the voter registration form and it is an optional field,” explained Gabe Rosenberg, communications director for Secretary of State Denise Merrill. “This has not been a topic that has come up recently in Connecticut, but we are likely to discuss it internally and get feedback from stakeholders going forward.”

In Colorado, instead of asking “sex” on the form/online – the state asks for “gender identity.” 

“We understand that this doesn’t cover all possibilities, but it was our hope that it might be more broadly inclusive,” explained Judd Choate, director of elections. “In addition, we have made it a free form field on the hard form and plan to add “other” as an option online soon.  But, likely that won’t happen until this summer.”

Todd Valentine, director of elections for the New York State Board of Elections, said that more than 20 years ago gender was a mandatory field on the state’s voter ID form, but now it’s optional because the information isn’t used for anything.

Voter ID
Voter ID is another area where transgender voters could run into problems. Seven states are strict voter photo ID states while another 10 are non-strict photo ID states.

Wu, with the National Center for Transgender Equality Action Fund, which is a 501(c)4 said that the center did not hear of any transgender being denied their franchise in 2016.

“We are concerned, however, about the effects that the Trump administration’s anti-trans rhetoric and actions may have in emboldening poll workers or election officials to give trans voters trouble,” Wu said.

None of the responding states that have photo ID laws on the books-strict or non-strict-reported any known problems with transgender voters attempting to vote. And all those responding with photo ID requirements stressed the efforts the elections officials take to make sure that every voters vote counts.

Kea Warne, deputy secretary of state, elections services for the state of South Dakota said although the state asks for photo ID, transgender voters do have other options.

“If the election board cannot determine that the voter’s photo on their ID matches the voter, then the election board will state that the ID you presented does not appear to be you,” Warne said. “You may explain why the photo does not match and you may present other forms of identification to assist us in confirming your identity.”

Warne also added that a voter without photo ID or other documentation to back up the photo ID can still sign an affidavit attesting to who they are.

Iowa and West Virginia are both introducing their voter ID laws this year. Kevin Hall, communications director for the Iowa secretary of state’s office noted that not only is Iowa not a strict photo ID state, but that the barcode on the back of the ID card is the key and provides much more relevant information than the photo on the front.

“The law requires precinct election officials to consider all of the information presented by the person prior to determining that person is not eligible, including changes to the voter’s physical appearance and time elapsed since the photo was generated,” Hall said. “Additionally, the Voter ID card, provided at no cost to registered voters who do not possess a valid Iowa driver’s license or non-operator’s ID, does not contain a photo.”

Donald Kersey, elections director and deputy legal counsel for the West Virginia secretary of state’s office said the state’s ID law was written in a way so as to give the secretary’s office leeway.

“West Virginia law requires poll workers to ensure the photo ‘is truly an image’ of the voter. Because there is no additional guidance, we interpret that provision to provide poll workers broad deference, which is consistent in other sections of election law (e.g. poll workers can challenge a voter’s registration on the spot, challenge a ballot, and require a voter to voter provisional for a variety of codified reasons),” Kersey explained. “Therefore, we instruct our counties to encourage poll workers to be fair, impartial and objective, especially because we do not want to require any voter to vote provisional unless it’s absolutely necessary.”

In Alabama, where a voter must show a photo ID—or have elections officials vouch for the voter or cast a provisional ballot—Assistant Director of Elections Clay Helms said that to his knowledge no transgender voter has had an issue with the state’s ID law.

Helms also said that information about transgender voters is not included in poll worker training although it may be something the state will look into in the future.

In Michigan, Elections Directory Sally Williams said elections workers are provided guidance for when a license photo does not match the person standing in front of them, for whatever reason.

“We direct election workers (inspectors) as follows: As a first step, the election inspector should take into account the age of the photo and any explanations the voter may wish to offer (weight gain or loss, hair style or facial hair alterations, different eyeglass frames, etc.). If such considerations resolve the matter, the election inspector should issue a ballot to the voter,” Williams explained. “If questions over the voter’s identity remain, the election inspector should ask to view any other acceptable forms of picture identification that the voter may have in his or her possession.”

If that still does not resolve the issue, Williams said the voter may cast a provisional ballot.

Although Wisconsin has a strict photo ID law, Michael Haas, election commissioner said that the law is written that the photo on the ID “reasonably resemble” the voter.

“To our knowledge, there have not been any voters who have been denied a ballot because their photo ID did not resemble them,” Haas said. “It is also part of the training for clerks what NOT to look for on a photo ID.  Poll workers and clerks are taught to only look for the voter’s name, photo, and expiration date and that they should NOT be looking at other fields like address, gender, citizenship, or driving privilege status.”

Haas also added that he is aware of the elections commission receiving several calls from transgender voters in advance of an election to confirm the voting process, which is something that the National Center for Transgender Equality recommends.

The National Center for Transgender Equality has tips for voting as a transgender person and a Voting While Trans checklist to help transgender voters prepare for casting a ballot. The tips include confirming your voter registration before Election Day, making sure that the information on your driver’s license matches what’s on your voter registration card and, where allowed, consider voting by mail.

The site also has some advice for elections officials and poll workers with the most important probably being, transgender voters are not doing anything wrong or trying to deceive you—they are just being themselves.

The piece also has a helpful chart of state laws on this emerging issue, which could see more changes in the foreseeable future. Thanks as always to Mindy for her attention to topics like this one in the election field – yet another reason why electionline is so valuable to the community!

Stay tuned…

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