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Disarming Our DemonsThe self-fulfilling prophecy of election-stealing.

By Dahlia Lithwick
Posted Saturday, May 24, 2008, at 6:44 AM ET

(Continued from page 1)

Unfortunately for Texas Republicans, it's just now come to light that despite a zealous two-year, $1.4 million vote-fraud crusade, Texas' Attorney General Greg Abbott's office has managed to prosecute only 26 cases—all against Democrats, and almost all involving minorities. Most were prosecuted for walking absentee ballots to the mailbox for sick or elderly voters, without following the protocol for doing so.

That's why it's doubly tragic that the Supreme Court demonstrated last month what happens when you arm an imaginary boogeyman with a real machine gun: Your pretend problem quickly turns real. Opponents of voter-ID laws say they have the practical effect of suppressing some votes, votes that tend to skew Democratic. Writing for the plurality in Crawford v. Marion County Election Board, Justice John Paul Stevens nevertheless upheld an Indiana voter-ID law requiring voters to have government-issued photo ID. Let's grant that voter-ID laws are popular. The question was supposed to be whether they are necessary. Stevens found that even with no evidence of in-person vote fraud in Indiana, "flagrant examples of such fraud in other parts of the country have been documented throughout this nation's history." As examples, he cited only an 1868 mayoral election in New York City and a single 2004 incident from Washington. Stevens was not concerned by the fact of rampant vote fraud but the fear of it. Propping up wobbly "voter confidence" became more urgent than protecting the right to vote. This was so even though voter confidence went wobbly only after partisans started peddling a mythical epidemic in the first place. (This new Harvard Law Review study shows that voter-ID laws do not increase voter confidence anyhow.)

Justice Stevens decided Crawford as he did because he found no good evidence that poor, disabled, and minority voters had yet been disenfranchised by the voter-ID law. Stevens left open the door to such voters to show in future elections that the voter-ID system actually barred them from the polls. At which time the circle is complete, and the crusade to end imaginary vote fraud will result in real vote suppression. Already in the Democratic primary in Indiana earlier this month, a flock of elderly nuns were denied the vote because they lacked the proper documentation.

The seeds of the modern Supreme Court's elevation of rooting out vote dilution over preventing vote suppression were sown in the court's opinions in Bush v. Gore. According to Jeffrey Toobin's book The Nine, when it became clear that the majority of the court planned to halt the Florida re-count via the equal protection doctrine—traditionally invoked to protect minorities from unequal treatment—Justice Ruth Bader Ginsburg dropped a footnote in her draft dissent. She suggested that if anyone needed protecting, it might be black Florida voters whose ballots were being disputed by state and local authorities. Toobin writes that Justice Antonin Scalia flew into a "rage" and accused Ginsburg of using "Al Sharpton tactics." She removed the footnote. And the modern judicial principle that it's better to suppress minority votes than sanction the appearance of unfair elections was born.

If I am correct that voter mistrust only fosters more voter mistrust, and that the appearance of unfairness on one side simply fuels unfairness on the other, perhaps it's still not too late to disarm bilaterally, before both vote fraud and vote suppression calcify into serious campaign strategies. If Republicans and Democrats can agree that it's not particularly smart or effective to try to steal elections, it may be easier to concede that the other side probably isn't doing it, either.

A version of this article also appears in this week's issue of Newsweek.

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Dahlia Lithwick is a Slate senior editor.
Photograph of Florida ballot judging by Robert King/Newsmakers.
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