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Obama Versus the Supremes on Photo ID



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Nearly a decade ago, I regularly carpooled to work with my left-of-center neighbor, who had just emigrated from Indiana to Wisconsin. One election day, we decided to hit the polling place before work — but as we got halfway there, she jerked herself upright. “I forgot my driver’s license,” she said, worriedly. I reassured her that she didn’t need to show photo ID to vote. She paused. “That’s crazy,” she said.

Several years later, another prominent liberal would agree with my neighbor’s assessment of the voter verification process. In Crawford v. Marion County Election Board (2008), U.S. Supreme Court Justice John Paul Stevens would uphold the Indiana photo-ID law (although his explanation was slightly less succinct than my neighbor’s.) In his six to three majority opinion, Stevens upheld Indiana’s voter-identification law, noting that “public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process.”

When Stevens retired in 2010, President Barack Obama hailed him as an “impartial guardian” of the law, saying the “brilliant” justice had “worn the judicial robe with honor and humility.”

Yet in Crawford, Stevens had apparently been too “impartial” for Obama’s tastes. On Monday, Obama’s Justice Department, headed up by beleaguered Attorney General Eric Holder, blocked a Texas voter-ID law, arguing the statute would disproportionately affect Hispanic voters. (In December, Holder’s department stopped implementation of a similar law in South Carolina.)

If Stevens’ opinion in Crawford marked a high point for “brilliance,” “honor,” and “humility,” then Obama’s DOJ is proactively eschewing those virtues. All the issues of racial vote suppression in Texas were hashed out in Crawford, which the Obama administration is now willing to defenestrate in favor of its own agenda.

For instance, DOJ has concluded that between 603,892 and 795,955 registered Texas voters do not have either a driver’s license or state-issued identification. According to numbers submitted by the state, up to 10.8 percent of Hispanic voters lack acceptable photo ID, nearly double the rate of non-Hispanics.

But Stevens drew the distinction between voters who are unable to obtain proper identification and those who were simply unwilling. “For most voters who need them, the inconvenience of making a trip to the BMV (Bureau of Motor Vehicles), gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting,” Stevens wrote. He later added that “we cannot conclude that the statute imposes ‘excessively burdensome requirements’ on any class of voters.”

Further, Stevens dismissed the dire statistics about photo-ID-free voters submitted in the lower courts, noting that their accuracy had “not been tested in the trial court.” Previously, federal district court judge Sarah Evans Barker had found the estimates “utterly incredible and unreliable.”

Yet, according to Stevens’s opinion, even the “heavier burden” some groups face in obtaining a photo ID is mitigated by the fact that voters in both Indiana and Texas are allowed to cast provisional ballots. Having ten days following the election to prove who you are doesn’t pose a constitutional problem, according to the Court.

Stevens even notes that the federal government is, in part, to blame for the need for a photo-ID requirement. In the early 1990s, the federal “Motor Voter” law began automatically registering everyone to vote who applied for or renewed their driver’s licenses. Portions of the act limited states’ abilities to remove names from those lists; thus, voting districts were stuck with inflated voter rolls, replete with names of people who had died or moved. Thus, data collected by the Election Assistance Committee in 2004 indicated that 19 of 92 Indiana counties had registration totals exceeding 100 percent of the 2004 voting-age population.

Of course, in the absence of a photo-ID requirement, once a name is on a registration list, it is fair game to anyone that wants to rent it for an election. (This is in contrast to someone wanting to rent a DVD, in which case they actually have to show some identification.) And it is this type of potential fraud that Stevens recognized as entirely possible in the absence of a photo-ID law, saying “the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process.”

The alternative is, to put it in my neighbor’s parlance, “crazy.”

— Christian Schneider is a senior fellow at the Wisconsin Policy Research Institute and a co-author of the Campaign Manager Survey.



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