States say no (and yes) to Real ID before May deadline

A seemingly odd phenomenon is occurring among some U.S. states that have flatly rejected the Real ID Act.

Even though officials in these states have publicly assured privacy-conscious voters that they steadfastly oppose Real ID's requirement of nationalized driver's licenses and ID cards, these same politicians and bureaucrats are quietly asking the Bush administration for more time to comply with the law.

The latest example is Oklahoma. In our special report published last month, we listed five states that--at the time we wrote the articles--indicated that they would not comply with Real ID. Those were Maine, South Carolina, Montana, New Hampshire, and Oklahoma; residents of states that don't comply will likely face hassles traveling on commercial flights or entering federal buildings starting May 11.

Oklahoma's legislature had approved legislation saying that Real ID "is inimical to the security and well-being of the people of Oklahoma" and, therefore, "the state of Oklahoma shall not participate in the implementation of the Real ID Act. The Department of Public Safety is hereby directed not to implement the provisions of the Real ID Act..."

That seems pretty clear; in fact, it would be difficult to be any clearer.

But now we've learned that Oklahoma's DMV has asked the U.S. Department of Homeland Security for an extension anyway. An official DHS map puts the state squarely in the will-comply-if-you-give-us-more-time category.

Capt. Chris West, an Oklahoma Department of Public Safety spokesman, told us this week:

There was a request for an extension on a deadline to a rule that would have (been) implemented in May of this year. We got an extension until the end of December 2009, so Oklahomans can still use the driver's licenses that they have. And really that's the extent to what I can answer.

Not speaking for the governor's office, the extension is so that our Oklahomans can continue to travel until the legislature does something, regardless of which way they decide to move with it.

I'm not a member of nor do I represent the Oklahoma state legislature; those are the individuals who will have to pursue whatever will be done, and the Department of Public Safety can't second guess what they're doing.

Translation: Oklahoma has zero intention of complying but is nevertheless taking advantage of a loophole in DHS regulations. That loophole says that a state's licenses will continue to be accepted at airports and federal buildings through December 31, 2009--even if the state plans to take precisely zero steps to implement Real ID by doing things like linking its databases or slapping a two-dimensional barcode on licenses and ID cards.

It's kind of disappointing that Oklahoma is choosing to squeeze through this loophole. In politics, there's something to be said for an unambiguous position, which is what Maine, South Carolina, Montana, Delaware, and New Hampshire have taken. If a law truly is that onerous, publicly denouncing the law--and then privately asking for an extension to comply--sends mixed messages.

On the other hand, states that have asked for an extension can bow out of Real ID at any time; asking for an extension imposes no legal obligation on them. And it does allow the state's licenses to continue to function normally (for purposes of air travel and federal building entry) for an additional 19 months.

While Oklahoma has been one of the most staunchly anti-Real ID states, other states that have criticized the law have adopted the same approach. Washington state has a law barring compliance with Real ID in its current form, but it has asked for an extension. So has Idaho, even though a spokesman for the governor tells us: "We still have serious concerns and reservations about it and its future here is to be determined."

Oregon, North Dakota, South Dakota, Nebraska, Arkansas, Georgia, Tennessee, and Pennsylvania are among the states that have requested extensions while expressing strong reservations about eventual compliance. The Real ID skeptics total, roughly, a third of the states in the union.

To grease the rails, Homeland Security has taken the remarkable step of handing out extensions even to states that haven't asked for them. Arizona was told it would "automatically" get one, and New York told us that it received an "unsolicited extension."

Why is that? One obvious answer is that Homeland Security officials like Stewart Baker are political appointees chosen by President Bush. They're not likely to have their current jobs by December 2009; even if the next president is John McCain, he'll pick his own loyalists early next year. (These positions are valuable because they can lead to lucrative lobbying and law firm jobs; a New York Times article from 2006 counted at least 90 Homeland Security officials who have cashed in with unseemly haste, with some making around $1 million a year.)

The unsolicited extensions, the granting of extensions to states like Oklahoma that have zero intention of ever complying, the extension of the compliance deadline to December 2009 even though the text of the law specifies May 2008--all these point to one explanation. Today's officials in senior posts at Homeland Security have postponed the real pain of complying with Real ID until they're no longer around to be blamed.