The Coalition’s voter ID bill could be challenged in court as a disproportionate measure that excludes people from voting, constitutional law expert Prof Anne Twomey has warned. The Morrison government insists nobody would be completely prevented from voting but Twomey argues the proposed legislation could still be struck down for the “imposition of additional administrative burdens that make it more difficult to vote or discourage people from voting”. In addition to concerns about the bill’s impact on groups including Indigenous Australians and people experiencing homelessness, Labor is warning the bill “is a recipe for disaster on polling day” because it could add to queues and be inconsistently applied.
The voter integrity bill would see voters asked to show a wide range of photo or non-photo identification in order to vote. People could cast a declaration vote – after providing their date of birth and signature – if they were unable to show any ID. The government introduced the bill in the October sittings of parliament, prompting fears it could be pushed through ahead of the 2022 election with the support of One Nation, which has claimed credit for it, and Centre Alliance, which has supported it in principle but is yet to decide its position. In September, Twomey made a submission to a Senate inquiry considering a similar One Nation bill, noting that voter ID requirements had a “long history in other countries … to prevent or deter certain groups in society from voting”. Twomey warned that – even with measures in place for itinerant, disadvantaged and Indigenous electors in remote areas – “the additional procedural burden, the effort required, the confusion that it can create and the message that it sends of being ‘suspect’ or unwanted, may be enough to suppress the vote”. Twomey told Guardian Australia this week the constitutional issues with the government bill were “likely to be similar”. Courts would determine the bill’s “burden” on the capacity to vote, including “complete exclusion from voting” and “additional administrative burdens”, then assess whether it was “reasonably necessary or proportionate to achieving a legitimate end”, she said. Twomey said “the key will be the extent of the burden” and any challenge would need evidence to show “even if it doesn’t legally exclude anyone, does it have the effect of suppressing the vote”. Twomey said if a court accepted there was a “burden … then there is a good argument that it would fall over at the proportionality level” as it was “likely that it is not reasonably necessary or proportionate”. But the University of Queensland professor Graeme Orr said it would be “procedurally hard” to challenge the law, as evidence of its impact would be clearest only after polling day. Orr said the law was “entirely unnecessary” and it was a “stupid time” to introduce it before an election in which Covid-19 would be circulating in the community. Nevertheless, he said it was “very hard to imagine” a challenge would succeed “unless [the law is] tweaked in future or there is some evidence of its disparate impact”. “How do you get someone to say ‘I don’t have ID so I couldn’t vote’ – the answer is get some ID,” he said, noting the “wide array” of documents which would be accepted. The shadow special minister of state, Don Farrell, said voter ID would work out “catastrophically” as it was “the first time in 120 years” it would be implemented – and just months out from a federal election which would require social distancing due to Covid. Farrell said the requirement could double the time taken to be marked off the roll and created “enormous” potential for conflict between poll workers and voters. Labor’s shadow multicultural affairs minister, Andrew Giles, has questioned whether the laws will disadvantage culturally and linguistically diverse people because of discrepancies in spelling between the electoral roll and their ID documents, and how much discretion polling officers will have in such cases.
“While there’s no evidence of voter fraud in Australia, there’s a plethora of evidence of right-wing voices wanting to restrict the franchise, especially in respect of First Nations people and multicultural communities,” he told Guardian Australia. Giles, a former chair of the Joint Standing Committee on Electoral Matters, said the Australian Electoral Commission had told the committee that “the instance of multiple voting for the House of Representatives was just 0.03%”. Parliamentary library advice, prepared for Labor, concluded that studies of US voter ID laws found “no detectable effect on turnout” but noted the laws are “relatively new” and effects may emerge over time. The advice recognised that “not all Australians are equally likely to have access to common forms of identification”. But it concluded that there was “no neat summary of who has what ID, however there seems to be little suggestion that there is any particular group of Australians who have no access to any form of ID document”.