Government May Face Legal Challenge Over Voter ID in Elections Next Year

A legal briefing by Good Law Project says that election groups will have to closely monitor who loses out when mandatory voter ID comes into force in just a matter of months

The Government may face a legal challenge over how it rolls out mandatory voter ID in next May’s local elections in England, Byline Times can reveal. 

A briefing seen by this newspaper ahead of the controversial policy coming into force next May shows that, while a legal challenge would be “difficult”, the Government is opening itself up for a fight under the Human Rights Act if the change impacts certain groups of voters harder than others, as is expected. 

The legal briefing by public-interest group Good Law Project notes that the Government’s list of “acceptable” concessionary travel IDs under the scheme only includes “passes available to older and disabled persons” – such as an Older Person’s Bus Pass, a Disabled Person’s Bus Pass or an Oyster 60+ card. 

Amendments were made to the Elections Bill while it was being considered by the House of Lords that included a wider list of acceptable IDs – such as student IDs, National Railcards, and the 18+ student Oyster photocard. But these were rejected by the Conservatives as they were not considered “adequate photographic identification” or secure enough – despite 60+ Oyster cards being an acceptable form of ID.

The 2018 voter ID pilot in Woking – which ministers lent on as a boost to their ID efforts – accepted 16-25 Railcards as a form of ID.

According to a Cabinet Office document, more than half (56%) of those surveyed said that they would be unlikely or very unlikely to apply for councils’ “free” paper ID. That would leave them locked out of the polling station on election day. Several campaign groups have noted that the figures from the Cabinet Office's survey on the individuals already owning ID are an overestimate. 

Recent analysis by YouGov, for instance, found that one in 10 Londoners reported not holding a form of approved photo voter ID specified in the Elections Act and close to one in five Londoners aged under 25 said they do not hold an approved ID. 

The Runnymede Trust has also reported that 3.5 million eligible voters in the UK do not have any form of photo ID. Although more than three-quarters of white people hold a full driving licence, 38% of Asian people and 48% of black people do not. According to the 2011 Census, a third of those of Gypsy or Irish Traveller background do not have a passport.

LGBT+ groups have also raised concerns that many trans people only hold photo ID that reflects their appearance pre-transition. A Stonewall survey found that 35% of LGBT+ people said they would be less likely to vote if they had to present ID. Many feared the risk of intrusive questions when applying for or presenting ID and being outed as trans in the voting process. 

Good Law Project has said that a legal challenge of mandatory voter ID – dubbed a 'show your papers policy' by the Electoral Reform Society – would require comprehensive surveys demonstrating that the figures on ID ownership relied on by the Government are inaccurate.

This puts the onus on democracy groups to assess the potential impact of voter ID in next May’s local elections in England. The Government has the option of using secondary powers to add more forms of ID to its list, which currently appears to favour older voters. 

The Government’s Equality Impact Assessment on voter ID found that the ID requirement is likely to have a greater impact on older people and people with disabilities, as the figures showed that these individuals are less likely to have the most common forms of photo ID. While ministers have promised to introduce a free form of ID via local councils, around half of those who lack photo ID said they would not apply for this – potentially owing to overstretched and cut-back local authority services. 

John Ault, director of non-profit election observers Democracy Volunteers, said the group would be mounting a significant operation next May to assess the impact of the scheme. 

“We’re going to go to as many councils as we can," he told Byline Times. "Our target is 300+ polling stations. We intend to be as broad as possible... It will be our biggest-ever observation of elections.

"It’s going to require a complete retraining of polling staff. It’s an entirely new way of voting. Staff need to be able to identify people... It will take time to see how prepared councils are.”

Detailed legislation on how councils will be supported through the change is only due to come into force in February.

“That’s limited time to train staff,” Mr Ault added. “There are several difficult hurdles – advertising, public awareness, training, and the free voter card. We don’t take sides. But next May will be a new way of voting that people aren’t used to. It will change the way we conduct elections."

Democracy Volunteers is expected to report within four to six weeks on the May elections and how voter ID affects the public. 

Many voters are not even aware that they will have to show valid photo ID at the next elections. The YouGov poll for City Hall found that 61% of Londoners are not aware of the forthcoming requirement. 

Jolyon Maugham, director of Good Law Project, said: “The Government’s Voter ID plans will stifle the voice of young people and those from under-represented communities. It is clearly unjust that the Government's approved list of IDs is mostly targeted at older voters and this smells of generational gerrymandering.

“To bring a case, we would need to show that the Government’s survey figures on ID ownership are inaccurate. In practice, this would involve conducting a separate very large scale survey... If compelling evidence emerged that the Government’s survey data was plainly wrong, we'd look again at a challenge.” 

The introduction of mandatory voter ID is set to cost £180 million to implement over 10 years.

The Government has told Byline Times that the Elections Act will "protect the integrity of our elections and stamp-out the potential for voter fraud". It has also pointed to the fact that Northern Ireland has had photo ID in elections since 2003 and offers free Electoral Identity Cards.

A spokesperson for the elections watchdog, the Electoral Commission, said: “The Elections Act requires the Secretary of State to prepare and publish an evaluation of the voter ID provisions for the first two general elections at which voter ID is required and following the first set of local elections in England.

"We understand that this report would capture the impact of the new policy on voters, campaigners and electoral administrators, along with any lessons that could improve implementation at future elections.

“The Commission will also publish a report after next May’s elections, looking at how the election was run and how voters found taking part. This forms part of our statutory duty, and we always publish reports after a set of polls. As part of this we expect to analyse data about voter ID at the May 2023 elections, to inform the wider public debate about this new policy.”

Giving evidence to Parliament as the Elections Bill was progressing, Helen Mountford KC called for the voter ID law to be time-limited at first, with a chance for Parliament to reconsider if it didn’t work. 

Josiah Mortimer is a political journalist, who writes regularly for Byline Times about democracy, unions, and human rights

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