ACLU created error in driver card ballot measure

The driver cards at issue in Ballot Measure 88 will likely be accepted by the federal Transportation Security Administration to fly on a plane, contrary to what the measure's title says.

The cards would allow illegal immigrants or other Oregon residents who can't prove citizenship to legally drive a car and hold insurance in their names, and the measure, referred from a 2013 law, has been presented as very limited.

The summary approved by Attorney General Ellen Rosenblum and the Oregon Supreme Court outlines its narrowness in great specificity:

"The driver card may not be used as identification for air travel, to enter a federal building, to register to vote or to obtain any government benefit requiring proof of citizenship or lawful presence in United States," it says.

Much of that statement is apparently wrong. What's more, it did not come from the Oregon Legislature, Secretary of State, the court, or Rosenblum's office.

It came from the ACLU of Oregon, whose attorney wrote the statement to represent the ACLU's interpretation of the law during the public comment period allowed by the Secretary of State.

Originally, the summary said the measure "specifies ways in which this driver card may be used as identification." It said nothing about ways the card may not be used.

That list came from lawyer Greg Chaimov of Davis Wright Tremaine on behalf of the ACLU.

"The intention there is to say there is an entire universe of things we can list that the driver card is not intended to be used for," said ACLU Legislative Director Becky Straus.

"The purpose of highlighting those specific things is to reinforce the limited purpose of the driver card" and show it was not meant to be equivalent to a driver's license, she said.

The original bill and the text of Measure 88 never explained prohibited uses of the cards, but they do list the six allowable uses under state law:

• to provide evidence of driving privileges

• to identify the person as an organ donor

• to identify the person as an emancipated minor

• to identify the person as a veteran

• to provide a driver license number

• to provide a license number to aid law enforcement in finding a missing person

Air travel or entering a federal building are never mentioned anywhere in the bill or the measure. Both are governed by federal laws, which the Oregon Legislature has no authority to address.

In fact, the Oregon DMV acknowledged this dynamic in its list of frequently asked questions about the cards.

The DMV deferred to the TSA to decide whether the cards could be acceptable ID in an airport. It also deferred to individual banks and businesses as to whether the cards can be used as ID for checking accounts or alcohol purchases.

It also notes that nowhere on the card will it say it is "not for ID purposes."

One thing is very clear: The cards cannot be allowed to vote. Secretary of State spokesman Tony Green said only citizens are allowed to vote, and the cards do not require proof of citizenship.

Any non-citizen who registers to vote is committing a Class C felony, Green said.

For its part, the TSA has said it will accept the cards as identification for people wishing to board a plane.

Nico Melendez, a Western Region TSA spokesman in California, after checking with Oregon officials and administration attorneys, told the Oregonian: "State-issued driver cards would be acceptable forms of identification for our document-checkers at the airport. At this point, the understanding is that a card like this would be an acceptable form of identification."

"What we are doing is verifying that the person who shows the card is the person who is traveling," Melendez said. "It's not an immigration check."

A Department of Homeland Security official said the TSA will continue to accept all state-issued IDs "at least until 2016." The federal Real ID act goes fully into effect that year, and an ID from non-compliant states will not be considered acceptable.

Oregon is one of 21 states who do not comply with the law but have an extension. If the state never complies with the act, any state-issued ID will eventually be invalid under federal law, including driver licenses held by citizens.

The TSA website gives a list of acceptable identification, and it does not specifically list driver cards. However, proof of citizenship is not required for TSA-accepted ID.

For example, it lists a "permanent resident card" as acceptable, and a permanent resident is not necessarily a citizen. The driver cards at issue in Measure 88 would require proof of residence for at least one year as well.

The ACLU understands that Oregon cannot dictate what the TSA does or does not do, Straus said. The statement was rewritten to reflect "what the legislature intended," she said.

Besides, Straus said, it is largely irrelevant whether the cards are allowed as TSA identification. The DMV is requiring either a passport or a photo ID from a consulate to get one of the cards, she said, and those documents themselves would pass the TSA standard.

"Do you show your passport to the DMV or do you show it to TSA — it seems to be the same effect," she said.

The ballots voters receive this month will include the incorrect statement about air travel, Green said.

"The Oregon Supreme Court, after hearing from proponents and opponents, certified that the ballot summary accurately reflects the text of the measure," he said. "Whether federal agencies choose to comply with the law — should voters approve it — is beyond the scope of the ballot summary review process."

hhoffman@statesmanjournal.com, (503) 399-6719 or follow at twitter.com/HannahKHoffman

Other states with driver cards

Washington

California

Nevada

Utah

Colorado

New Mexico

Illinois

Vermont

Connecticut

Maryland

Washington, D.C.

Puerto Rico