How efforts to ID voting problems have become a partisan mess.
None of this means that all voter-identification laws are bad ideas. In fact, I think that as part of an overall bipartisan package of election reform—which would include universal voter registration conducted by the government—national voter identification makes sense, especially if structured to limit absentee vote fraud, and so that identification can be checked across states. A package that increased access through universal voter registration and dealt with a real (or imagined) concern about voter fraud through a 100 percent government-funded voter-identification program could gain wide support if both parties were more serious about election reform—and less concerned about gaining partisan advantage.
One of the controversial aspects of the recent Carter-Baker election reform commission report was its endorsement of a voter-identification requirement. (Its chief flaw was failing to provide a mechanism for voters to cast a vote if they lose their ID, such as allowing voters to verify their identification with a simple thumbprint—or at least to cast a provisional ballot.) But the Carter-Baker report is being co-opted for partisan advantage by those using it as cover for enacting voter-ID laws that will disproportionately disenfranchise poorer voters. At a recent forum for the new AEI-Brookings Election Reform Project, Robert Pastor, executive director of the Carter-Baker commission, made it clear that the voter-ID proposal should be enacted only as part of a package with government-funded universal voter registration, and that some Republicans supporting voter ID "are not really serious about making sure that voter ID is free for those who can't afford it …"
In the end, all this partisan jockeying is not going to increase public confidence in the outcome of elections just as we are witnessing a great partisan and racial divide emerging in public's confidence in the electoral process. (And it should be noted that Republicans are not the only ones who know how to enact election reform on a partisan basis. Witness the controversy over Maryland's new election reforms.) After 2004, 21.5 percent of Democrats thought the 2004 presidential election was somewhat or very unfair, compared with less than 3 percent of Republicans.
And it appears, perhaps not surprisingly, that the losers have less confidence than the winners. Consider voter attitudes toward the fairness of the Washington state gubernatorial election in 2004. After a series of recounts and court battles, a Democrat was declared the winner.In a January 2005 Elway Poll of Washington voters, 68 percent of Republicans thought the state election process was unfair, compared with 27 percent of Democrats and 46 percent of Independents. This means Republicans can just as easily lose confidence in the electoral process, should they be on the wrong end of a close presidential election next time. It's in everyone's interest to fix the problems in a nonpartisan way.
In the meantime, the number of election challenges going to court has increased dramatically since the 2000 Florida debacle. The average number of cases in the 1996-99 period was 96 per year, compared with an average of 254 cases per year from 2001 to 2004. It is no wonder that there is such a rise, when the suggestion that election rules are being rigged for partisan advantage starts to look reasonable. Unless political parties are willing to put aside the hope for partisan advantage in election reform and instead enact fair reform with bipartisan cooperation, we can expect more of the same in 2008. Don't say you were not warned.
Richard L. Hasen is a professor of law and political science at the U.C. Irvine School of Law and author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. He also writes the Election Law Blog.