The Agenda

The Voter ID Conversation

I find the voter ID conversation extremely frustrating, in part because there is very little understanding of the details of the various state-level initiatives. The Brennan Center for Justice, which is fairly described as a left-of-center group, has done us all a service by outlining the provisions of voter ID laws passed in 2011 and 2012 in a fairly neutral way. Suevon Lee of ProPublica has written a short piece that aims to explain and contextualize the controversy surrounding voter ID laws, and though Lee’s article reflects the perspective of critics more than defenders of voter ID laws, it is useful. Julie Drenner of R Street, a new center-right think tank, has a short post on the ongoing voter ID litigation in Texas, which observes the following:

University of Texas professor Daron Shaw presented evidence that 1.9% of white voters, 1.23% of black voters and 0.96% of Hispanic voters would be required to obtain an ID in order to vote. Given the lack of discrepancy in the percentages, the state argued, the law does not favor one group of voters over another, but treats all equally.

Much of the coverage of new voter ID laws has been apocalyptic, and I think this does the public a serious disservice. In my view, some states, including Pennsylvania and perhaps Texas, have moved too quickly. That is, they haven’t allowed for a phase-in period that will allow voters who don’t currently have identification enough time to get it, in part because state bureaucracies are often slow-moving or otherwise inaccessible. This is a legitimate concern. Yet arguing that a voter ID requirement of any kind represents an illiberal effort to suppress the vote of minority voters makes it harder to have a conversation about addressing these challenges. Critics of the Texas and Pennsylvania laws would benefit from acknowledging that a voter ID requirement of some kind is a legitimate demand.

Now, however, many critics are claiming that the lack of investigations or prosecutions of voter fraud is evidence that the problem is manufactured. This is based on a fundamental misapprehension. To determine whether or not voter fraud is a pervasive problem, we’d have to undertake a series of experiments, e.g., we’d have illegitimate voters seek to vote in various jurisdictions, and see if they encounter any difficulties. This would, I strongly suspect, prove extremely controversial. One obvious reason why we don’t have serious investigations of voter fraud could be that it would prove politically problematic. Why would prosecutors — who often face serious resource constraints — pursue these cases? And how would they begin to identify potential instances of fraud, particularly if the practice is not highly organized?   

Another very common claim is that proponents of voter ID laws are engaging in partisan politics. I can’t speak for all proponents of voter ID laws, but there is an obvious way to address this claim: acknowledge that requiring some form of voter ID, including bank statements or bills or a signed affidavit of identity that could be cross-referenced against a signature on file, is reasonable, yet insist that state governments be given adequate time to accommodate all legitimate voters. Canadian law, which allows for a wide range of alternatives to a government-issued photo ID, might serve as a good template. Moreover, critics of the Texas and Pennsylvania laws should be particularly eager for field trials designed to determine how often voter fraud occurs across different jurisdictions with different voting practices. This would help settle the question of whether or not various voting systems are vulnerable.

P.S. For a dissenting view on voter ID, I recommend reading a 2007 Creighton Law Review article by Chad Flanders of Saint Louis University. Briefly, Flanders is arguing that an excessive emphasis on data collection on voter fraud is misplaced, as the really important question is normative, i.e., does the importance of avoiding fraud outweigh the potential threat to widespread democratic participation? There are many ways of adjudicating this question, e.g., we might decide that avoiding fraud isn’t actually that important if the fraud that does take place doesn’t actually impact the outcome of elections and widespread democratic participation is of crucial importance. Or we might take the view that even the occasional instance of fraud badly undermines the integrity of the democratic process while the burden of taking the necessary steps to acquire acceptable identification is slight and thus a reasonable condition for participation. These clashing views are reflected in a number of debates over voting, including making voter registration automatic, allowing widespread voting-by-mail, whether or not ex-offenders should have the right to vote, etc.

Flanders make his own view explicit at the end of the article: 

The state would have to make a pretty good case that its new regulations are designed to prevent (and would prevent) such outcome determinative fraud, rather than just preventing the occasional, random fraudulent vote or two. Courts will have to weigh how persuasively the state has proven the possibility of massive or outcome determinative fraud against the interests of voters who might be prevented from voting. That is, courts will have to see whether the state can demonstrate that it needs new requirements on voting to stop massive fraud, and whether this demonstration is persuasive enough to justify a foreseeable deterrence of some voters from voting.

Accordingly, courts should cast a skeptical eye on regulations that are too broad and aggressive for the problems just identified; such reg- ulations swat flies with a hammer as one dissenting judge in Crawford put it. The state’s interest is not that great: fraud is only bad and only becomes a real problem when it is at the level where it will affect the outcome of an election, thus affecting whether an election can function as an election. The interest of participation by voters who have the underlying qualifications to vote but lack the necessary identification, however, is great, and it is one that is at risk every time an additional voter is prevented from voting by new and unnecessary regulations. When balanced against the state’s interest in preventing fraud and the fear of fraud, the participatory interest should usually win.

I weight this somewhat differently: (a) I take the occasional, random fraudulent vote or two somewhat more seriously than Flanders but (b) I recognize the importance of not placing an undue burden on participation, which is why I think requiring an affidavit of identity is a reasonable step. 


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