Convictions: Slate's blog on legal issues

Crawford

I just can’t muster up a lot of outrage about Indiana’s Voter ID law. Tim is right that we have a de facto national ID now. The Indiana law is nothing like a poll tax: This law may or may not be attacking a nonexistent problem of voter fraud, but either way, it’s attacking it by requiring people to do something almost everyone would do, anyway.  

Jack, I thought David—like Deborah—was saying that one of the injuries the Indiana law is correcting is the perception—warranted or not—of voter fraud. David’s point: That perception may well be in the way of other reforms to make voter registration and voting easier (example: the most commonly voiced objection to voting by phone or by the Internet is fraud—an ID requirement might address such concerns and lead to sensible reforms that would allow more people to actually vote). Whether or not any such reform would be wise, maybe it’s better that the courts stay out of this and let the political processes at the state level work. 

From this perspective, it’s a bad idea for the courts to require the state to show they’ve already implemented the reforms in order to“compensate” for the burdens of the voter ID law because 1) there’s little evidence of any more than minimal burden; 2) the point isn’t that the reforms would “compensate” for the burdens of the voter ID law—it’s that the reforms would be good in and of themselves (even if they, say, make it easier for different people to vote than the people burdened by the voter ID law); and 3) the ID law may be the precondition to the other reforms: If the state had to show that it had already taken steps to ameliorate the (possibility nonexistent) burdens, then it would never be able to generate the confidence that would smooth the way for the reforms. 

Another way of looking at this—maybe a formal voter ID law is better than voter eligibility requirements that are enforced ad hoc—either at the polls by overzealous poll watchers or after the fact through litigation challenging the results. The ID law makes it simple to ensure that everyone who votes is who they say they are and to check and make sure no one votes twice, thus reducing the need for other types of (often discriminatory) enforcement and cutting the legs out from under potential litigation by the losers of the election. Echoing David: Shouldn’t the Constitution allow a state to make such a trade-off, at least unless someone can show actual and significant injury in the application of the law? 

Voter ID: Nobody Knows Nothing, and That Might Be Good

Marty nicely describes the paucity of evidence supporting Indiana's claim in Crawford v. Marion County Election Board that voter fraud is rampant in Hoosier land.  After all, the Court long ago held in Croson that Richmond could not  rely on experiences eslewhere to defend it's affirmative action policies.  Well, if evidence of race discrimination in the capital of the Confederacy was too uncertain to count unless backed up with local studies, then why should Indiana be able to rely on the lone phony voter in Washington state to save it preferred policy from constitutional challenge?

Fair enough.  But consider the other side:  just how much evidence did the plaintiffs have to show that the new law would disenfranchise lots of folks?  After all, the district court found that 99 percent of Indiana voters already staisfty the new standard and that there is good reason to think that the 1 percent who may not now, easily can.   That could be wrong, of course, but the paucity of evidence on both sides here does suggest the reason for the Court's reluctance to decide this facially.  Of course, ignorance is not always an excuse. A poll tax is hard to describe as anything other than a burden on the right to vote, no matter if there is evidence of just how many poor people it would block from going to the polls.  But an identification requirement is a burden only if in practice it actually operates that way.  So, one would think there would need to be a pretty substantial showing first to support a facial attack. 

Plus: it's not clear that the politics of this ruling are as bad as Jack or Marty indicates.  Here, the state has on its side election monitor extraordinairre - President Carter -- who chaired a presidential commission on election reform that seemed to approve of voter ID requirements as being legitimate.   As Carter no doubt reasoned, it may well be much easier politically to pass real reforms to make registration easier -- which could substantilly increase voting by the now disenfranchised -- if strict anti-ftraud measures are also in place.  I'd be hesitant to see this case, therefore, as a bad development for those that want to increase the voting ranks.  It may instead be a precondition for freeing new possibilities in election reform that could, on net, lead to greater enfranchisement.  In other words, if you ensure voters are who they say they are, we'll let you register more of them. Don't we want a Constitution that would facilitate such a trade?