Voter ID



Originally Posted 9/24/2012



Since the 2008 election, no fewer than 16 states have passed “Voter ID” laws, requiring voters to show a government-issued ID – which usually has to have a photo and an expiration date – at the polls before being allowed to cast a ballot.  Frankly I don’t have a problem with the basic idea behind these laws; at first glance it seems quite reasonable to ask a potential voter to prove that they are actually the person whose name is on the voter rolls, and thereby prevent “voter fraud”.  The problem isn’t the concept; it’s the way that concept is being implemented.


Voter Fraud?  What Voter Fraud?


First, “voter fraud” (an act by an individual voter to illegally or fraudulently cast a ballot) is a virtually non-existent problem.  The penalty already on the books for voter fraud is 5 years in prison and a $10,000 fine for each fraudulent act, a steep price to pay to cast a single vote, and as a result, actual incidents of voter fraud are extremely rare.  For example, in Pennsylvania (one of the 16 states that have recently passed Voter ID laws), the state released a report this summer admitting that there has not been one single documented case of what they called “voter impersonation” for at least the last ten years.  Attorneys for South Carolina, where the new Voter ID law is now in the hands of the federal courts, had to fall back on the argument that the State does not need to prove the existence of fraud in order to take steps to prevent it (a tacit admission that they can’t prove the existence of voter fraud).  In Ohio in 2004 – one of the most closely analyzed elections in recent history – the voter fraud rate was found to be 0.00004%. To put that in perspective, that is a lower rate than the National Weather Service reports people are struck by lightning in the United States.

The undeniable fact is that these laws address a non-existent problem, but will disenfranchise large numbers of lawfully registered voters (for example, Pennsylvania estimates that 9% of its registered voters – roughly 758,000 of them – do not currently have the ID required by the new law).

And that’s a huge problem.

So why the sudden spate of Voter ID laws?



The Partisan Truth


There is a very simple reason why there has suddenly been such a widespread movement in this direction – in each of the 16 states that have passed these laws, they were passed by new Republican-led state legislatures and signed by new Republican governors.  In each case, this was done over the objections of Democrats.  In a 17th state, North Carolina, the Republican-led legislature passed the law, but the Democratic governor vetoed it.

Why the partisan difference?  The answer is that the voters most likely to not already have the ID required by the law and who would have the most difficulty getting the ID are the elderly, the poor, the disabled,  minorities, students, and young voters – and each of these groups tends to vote heavily Democratic.  In other words, these Voter ID laws are an attempt to suppress the Democratic vote, thereby making it easier for Republicans to win.  In perhaps the most blatant admission of this, the Majority Leader of the Pennsylvania State Senate, Republican Mike Turzai,  admitted as much when he said in a televised interview that the new law “would allow Mitt Romney to win Pennsylvania”.  Regardless of the lofty ideals that are supposedly behind these laws (usually couched in terms of “protecting the integrity of the electoral process”), the cold, hard fact is that these laws will have a partisan impact favoring the Republicans, and that is the reason behind their passage.



Legal Challenges


In many of the states that have passed these laws, legal challenges have been filed – and many of these challenges have been successful.  In Wisconsin, for example, two state courts have rejected the new law.  In Pennsylvania, the State Supreme Court, noting that “the right to vote in Pennsylvania, as vested in eligible, qualified voters, is a fundamental one”, has ordered the trial court judge who upheld the law this summer to hold a new hearing to ensure that “there will be no voter disenfranchisement arising out of the voter ID requirement”.

In some of the states that have passed these laws there is an additional obstacle – the 1965 Voting Rights Act.  This law applies to specific states with a history of racial discrimination in voting laws, and requires that the affected states have any changes to their voting laws approved by either the Justice Department or by the federal courts.  Among these states are Texas and South Carolina, where Voter ID laws were rejected by the Justice Department this year on the grounds that these laws would disproportionately impact minority voters.  As noted above, South Carolina sued and that case is now in the hands of the federal courts.

All of this has led to confusion in these states – will Voter ID be in effect on Election Day or not?  Even if the various court cases are resolved in the next few weeks, how will those laws left in effect be implemented?  How will eligible, registered voters who don’t already have the necessary ID get one in time to vote on November 6th – and if they can’t,  how does this not disenfranchise those voters?



The Constitutional Issues


One thing all sides agree on is that this question is almost certain to be ultimately decided by the United States Supreme Court (which will probably combine the cases from various states into a single decision), but there is obviously no way this will happen in time to affect the 2012 elections (just 6 weeks away as of this writing), so that resolution will not affect the 2012 elections.  When the Supreme Court finally examines these laws, they will have to address several different Constitutional issues that arise:

Is the manner by which these laws are going to be implemented likely to have a discriminatory impact?  There is no question about this; one of the groups that will be hardest hit by Voter ID laws is minority voters.  Several courts at both the state and federal levels have already ruled on this issue, and I suspect the Supreme Court will agree that these laws will disproportionately impact minority voters.

Does the concern about “voter fraud” outweigh the potential disenfranchisement of eligible voters?  In almost every significant case they decide, the Supreme Court has to weigh one concern against another – government interests vs. individual rights, state’s needs vs. federal power, and so on – and then decide where the line between them should be drawn.  In the case of voter ID laws, the Supreme Court would essentially be asked to weigh the threat voter fraud presents to the electoral process – a questionable concern at best, as demonstrated above – against one of the most fundamental rights we enjoy as Americans, the right to vote.  I think the Court rules against the states on this one – there is no dispute that at least some “eligible, qualified voters” (as the Pennsylvania state Supreme Court described them) would be disenfranchised as a result of Voter ID, while the threat to the integrity of the electoral process from voter fraud is, to put it generously, statistically negligible.

If the laws require the voters to present a government-issued ID in order to vote, and payment of a fee is required to obtain that ID, does this amount to a roundabout means of imposing a poll tax?  The idea of a poll tax – requiring voters to pay money before being allowed to cast a ballot – is widely regarded as having been among the most egregious of the old “Jim Crow” laws.  Back then, these payments were intended to prevent African-Americans in the South from voting, but poll taxes – in any amount and in any form – are now expressly forbidden by the 24th Amendment to the United States Constitution.  Some would argue that everybody should already have an ID anyway, so Voter ID is not an imposition.  The truth is, however, that many people simply don’t have a valid ID that would be acceptable under these laws, for a variety of reasons – none of which have to do with their right to vote.  Perhaps they are young voters who don’t drive yet and haven’t had to get a state ID because they are in college and don’t have a job (and, by the way, their student ID cards would not be an acceptable form of ID under most of these new laws).  Maybe they are elderly and their driver’s license has expired and, since they no longer drive, they haven’t renewed it.  Perhaps they’re disabled and can’t get to the DMV.  The reason doesn’t really matter for purposes of this discussion.  These are eligible, qualified voters – American citizens who want to vote – and if they must now pay a fee to the government to obtain an ID they otherwise would not have needed, just so they can exercise their right to vote, it is difficult to argue that this does not amount to a poll tax.

I believe the Supreme Court would ultimately rule to strike down the Voter ID laws on any one of these issues.  When confronted with all of them at once, I don’t see how the Supreme Court could uphold these laws.

Don’t get me wrong:  Voter ID is not necessarily an evil concept, nor is it even a bad idea.  It is, however, gravely flawed – at least as it is currently being attempted in the 16 states in question.  Perhaps there is a way to do this that does not disenfranchise voters; that does not force voters to pay money just so they can cast a ballot in an American election; and that will not be implemented in a discriminatory manner.  Until we find that elusive method, however, Voter ID WILL disenfranchise voters; it WILL force voters to pay money just so they can cast a ballot in an American election; and it WILL be implemented in a discriminatory manner.

All of which are good reasons not to do it at all.

0.00004%?  Really?

I’ll risk it.