Voter ID: What’s at Stake?
As Lyle Denniston wrote earlier this fall on SCOTUSblog.com, “[f]ew cases the [Supreme] Court might have agreed to hear w[ill] be likely to have as much real-world political impact as the newly granted case of Crawford v. Marion County Election Board . . . , involving an Indiana voting requirement law that is said to be among the most demanding in the nation.” Before the Justices themselves have an opportunity to delve into the case, Professors Bradley A. Smith, of Capital University Law School, and Edward B. Foley, of The Ohio State University, debate the major legal, political, and philosophical issues behind the controversial matter of voter ID.
Broken Windows and Voting Rights
The Supreme Court has agreed to hear a case on voter ID laws this term, Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007), cert. granted, 128 S. Ct. 33 (2007). Here, plaintiffs, including the Indiana Democratic Party, challenge the constitutionality of Indiana’s law, which, with generous exceptions for seniors living in assisted living facilities, absentee voters, and indigent voters unable to obtain ID without payment of a fee, requires voters to produce a government-issued photo ID in order to vote. It is, at first glance, not at all apparent that there is anything meaningful at stake in this case, despite a lot of hot rhetoric from partisans both left and right. In fact, the stakes are high, but not in the way most people seem to think.
The government claims that voter photo ID laws are needed to prevent fraud at the polling place, but the evidence that such fraud is common is almost entirely anecdotal and not especially compelling. The majority decision at the Court of Appeals, written by the eminent and empirically grounded Judge Richard Posner, notes that voting fraud is already a crime, subject to prison time and fines. Further, the State conceded that, “as far an anyone knows, no one in Indiana, and not many people elsewhere, are known to have been prosecuted for impersonating a registered voter,” and, “there are no reports of such fraud in [Indiana].” Id. at 953. The Court of Appeals did suggest reasons why this might be so, other than the possibility that such fraud does not occur frequently, but certainly the growing consensus (in academic circles, anyway) is that voter impersonation is an unusually rare occurrence. I have publicly added my voice to that skepticism.
On the other hand, the plaintiffs’ claims that Indiana’s law will result in massive “disenfranchisement” of poor and minority voters seem at least equally stretched. Indeed, the trial court was almost scornful of the inability of the plaintiffs to find actual people unable to vote due to their inability to produce or obtain a photo ID. On appeal, Judge Posner noted more dryly, “There is not a single plaintiff who intends not to vote because of the new law . . . .” Id. at 951-52.
Is this all, then, much ado about nothing? Among political elites the debate has been marked by a powerful partisan divide, with most Republican leaders supporting voter photo ID laws and most Democratic activists opposed to them. This suggests that there may be more to the claims than meets the eye, but just what? Democrats accuse Republicans of wanting to suppress the votes of minorities and the poor, who they argue are less likely to have photo IDs, and who they presume, probably correctly, will vote largely Democratic. Republicans accuse Democrats of intentionally laying the groundwork to engage in electoral fraud. In short, the voter ID debate causes activists in each party to see in their opposites their worst partisan stereotypes come seemingly to life. I have heard activists on both sides justify their position on voter photo ID laws wholly by reference to the opposition. “If Republicans didn’t want to suppress minority votes,” say Democrats, “why would they fight so hard for these laws?” Republicans retort, “If Democrats didn’t intend to enable voters of dubious legitimacy, if not obvious illegitimacy, to vote, why are they making so much fuss over such a minor element of electoral housekeeping?” Meanwhile, neither side makes a very compelling case on the merits. Perhaps this really is a dispute in which symbolism, at least for party activists, is clouding realistic appraisals of the stakes involved.
For the parties’ rank-and-file voters, the issue seems simpler. Public opinion polls show overwhelming support for voter ID laws, with support cutting across party lines. The private Commission on Federal Election Reform (the “Carter-Baker Commission”) recommended that states require photo ID, even while stating forthrightly, “[t]here is no evidence of extensive . . . multiple voting.” And if the majority seemed casual in its recommendation, to this ear, at least, it was the dissenters on the Commission who sounded shrill and unconvincing in arguing against photo IDs.
My own sense is that public support for voter photo ID laws can be attributed to what might be called the “broken windows” theory of election law, if we may borrow from the theory of crime prevention popularized in the 1990s by then-New York Mayor Rudolph Giuliani. The theory draws its name from a 1982 Atlantic Monthly article by George Kelling and James Q. Wilson. Professor Robert C. Ellickson described Kelling and Wilson’s theory thusly:
An onlooker construes the visible presence of drunks, prostitutes, litter, graffiti, and other low-level annoyances on a block as a sign of basic inadequacies of public policing . . . . [U]ncorrected disorders tend to multiply because a potential miscreant regards the evident absence of social controls at a location as an additional temptation to misbehave there.New Institutions for Old Neighborhoods, 48 Duke L.J. 75, 78-79 (1998).
Most Americans, I think, share the general view of Judge Posner, who noted in Crawford, “[I]t is exceedingly difficult to maneuver in today’s America without a photo ID (try flying, or even entering a tall building . . . without one . . .) . . . .” 472 F.3d at 951. Most Americans have almost certainly devoted little if any thought to voter ID laws, but most probably do not honestly believe that large numbers of people are voting fraudulently under assumed names. Nonetheless, to most Americans, I suggest again merely from personal experience, a requirement that a voter demonstrate that he is who he claims to be is considered a most minimal intrusion. And what regular voter has not, at some point, wondered what would prevent her from claiming another identity at the polls?
It may be true that a voter ID law prevents very little fraud in a direct sense, though a few such cases almost certainly exist; but like fixing broken windows and cleaning up litter and graffiti, such a basic procedure may prevent fraud from growing. It sends a message that voting is serious—at least as serious as cashing a paycheck or buying cigarettes, both of which require photo ID. The mere sense that someone is likely to ask for ID may be perceived by would-be perpetrators as increasing the odds of being caught and identified in some other type of fraud (or, we should add, voter intimidation scheme). It brings a sense of order and modernity to elections, and as such may be perceived as indicative that other forms of fraud, such as absentee ballot fraud, are also being watched and are likely to be caught. Judge Posner’s Crawford opinion may inadvertently come closest to applying the “broken windows” analogy when it briefly compared voter fraud to littering, in that both crimes are exceedingly hard to catch in the act.
Thus, voter ID laws will, I think, retain their popularity with the broad public. Voter ID is seen as a basic component of any voting system that places even the most modest priority on prevention of fraud—its absence both invites more serious fraud and leads to lack of confidence in electoral results. Just as people would be unlikely to deposit money in a bank that seemed to have no visible safeguards on withdrawing funds from an account, voters may not participate in elections that seem cavalier about fraud.
Nonetheless, were a typical citizen to read Judge Posner’s Crawford opinion, it would likely jar the ear. Never one to shy from controversy, Judge Posner does not stop with what will seem to most as a common sense approach to voter ID. Rather, Judge Posner goes on to question the value to the individual of voting at all:
A great many people who are eligible to vote don’t bother to do so. Many do not register, and many who do register still don’t vote, or vote infrequently. The benefits of voting to the individual voter are elusive (a vote in a political election rarely has any instrumental value . . .), and even very slight costs in time or bother or out-of-pocket expense deter many people from voting . . . . So some people who have not bothered to obtain a photo ID will not bother to do so just to be allowed to vote, and a few who have a photo ID but forget to bring it to the polling place will say what the hell and not vote . . . .Crawford, 472 F.3d at 951. What Posner says here is not controversial among political scientists, economists, and election experts, at least not since Anthony Downs’s seminal 1957 work, An Economic Theory of Democracy. But this type of talk runs contrary to America’s civic myths about voting, and to how the Supreme Court has treated the power to vote.
In Yick Wo v. Hopkins, an 1886 case dealing with the rights of Chinese immigrants to operate laundries in California, the Supreme Court, in dicta justifying a substantive due process holding, noted that voting, “[t]hough not regarded strictly as a natural right, but as a privilege merely conceded by society, according to its will, under certain conditions, nevertheless . . . is regarded as a fundamental political right, because [it is] preservative of all rights.” 118 U.S. 356, 370 (1886). That dicta then lay dormant for nearly eighty years, until resurrected to justify the imposition of the equal population rule into legislative districting in Reynolds v. Sims in 1964. Since then the Court has cited Yick Wo regularly for this proposition.
Judge Posner’s logic challenges this conception. Crawford suggests that whether or not a particular individual votes, or has a ballot counted, does little to protect that individual’s rights. And from the standpoint of a single individual, the right to speak, to bear arms, or even to assemble with others is probably a far more effective tool for preserving other rights than is voting. An individual’s single vote will usually be far less effective in changing government policy than his ability to speak and publish, allowing him to convince many of his fellow citizens that government policy is wrong; or than his ability to own property, allowing him to protest government policy without fear of material deprivation by the government. For any given individual, voting is also ineffective as a means of political expression, due to the secret ballot.
If, as the ultimate logic of Judge Posner’s Crawford opinion suggests, voting has little value as an individual “right,” then what is it? It is a power granted to participate in governance of the state—a collective, instrumentalist tool that exists to assure good government, part of which includes, as Yick Wo might have stated, protecting individual liberties, such as freedom of religion or the right to property. But such rights and liberties may also be protected—indeed, better protected—in other ways, such as through the structure of government (including bicameralism, separation of powers, and federalism) or limitations on government power (including the Bill of Rights and the doctrine of enumerated powers), though in fact many of these protections have been seriously eroded over the last seventy-five years.
Furthermore, though voting is one means among many to protect rights and liberties, if unchecked it is also the power to destroy rights and liberties. Individuals who violate our rights, through robbery, criminal assault, torts and the like, are subject to punishment. But who is punished when the government violates substantive rights through acts of the legislature, serving as the duly elected representatives of the people? Private citizens may not lawfully turn the right to bear arms into a means to seize the property of some and give it to others (through armed robbery, theft and the like), but they may use their votes to empower their legislatures to do so, as the Supreme Court’s Kelo v. City of New London decision starkly reminds us. Thus, while voting is not terribly important as an individual right, there may be powerful reasons to check its use as the power to destroy liberty.
The logic of Judge Posner’s Crawford opinion, therefore, suggests that the Court’s longstanding treatment of voting as something akin to an individual “super right”—a treatment that has underscored nearly every judicial opinion in the area of voting rights from Reynolds through Bush v. Gore—is fundamentally in error. While it is highly unlikely that affirmation would result in a sudden sea change in the Court’s jurisprudence, Crawford could be the thin edge of the wedge that calls for long-term adjustment in the Court’s voting jurisprudence. Such an adjustment would place greater emphasis on the role of voting in creating good government, granting governments, in some ways for better and in others, potentially, for worse, more leeway in crafting redistricting and voting procedures.
Details, Equal Citizenship, and Reasonable Fairness
I agree with Professor Smith that there is an air of unreality surrounding the voter ID debate, suggesting that the issue may have more symbolic than practical importance. But I also think that much of that unreality stems from debating voter ID in the abstract, as a monolithic proposition, with an underlying assumption that all voter ID laws are equivalently evil or equivalently virtuous. In fact, voter ID regimes come in a wide variety of flavors—some mild, others picante—and one thing to look for in Crawford is whether the Justices have a sufficiently sensitive palate.
Consider the law in Crawford itself. It permits voters who lack the required ID to cast a provisional ballot that will count if they submit an affidavit that gives either of two acceptable reasons: (1) they are indigent and unable to obtain an ID without paying a fee or (2) they have a religious objection to being photographed. Would it be so problematic for the state to add a third acceptable ground for submitting an affidavit in lieu of the ID: unforeseeable delay in securing underlying documents, like a birth certificate, that are a prerequisite for obtaining one of the restrictive pieces of voter ID that qualify under state law? The state may be correct in claiming that extremely few individuals who wish to vote experience this kind of unexpected difficulty. But if that is true, then what is the harm to the state in giving these few individuals a method to validate their provisional ballots comparable to what the state already provides for indigents and religious objectors?
The state’s interest in denying this third “hardship” ground for an affidavit alternative is even more dubious when one considers that the state could create, as part of the affidavit process, an additional obligation to provide some other form of corroborating evidence as to the voter’s identity (for example, a separate affidavit from a family member or neighbor, to authenticate the voter’s identity and explanation for lacking the qualifying piece of ID). With this corroboration procedure in place, there would be no risk that this provisional voter was fraudulently attempting to impersonate a different registered voter—which, after all, is the state’s professed concern. Moreover, the fact that other states, like Michigan, extend the affidavit alternative to this additional hardship situation belies any claim on the part of Indiana that it would be infeasible to do so.
There also is a common sense explanation why the plaintiffs in Crawford could not produce any individuals who fell into this third hardship category. Who knows in advance that he or she will have unforeseeable difficulties in getting a birth certificate? Thus, the fact that no one can predict which particular individual voters will need this third basis for invoking the affidavit alternative does not mean that the need will not exist. Judge Posner’s contrary logic would limit health insurance for rare diseases to only those persons who know for certain in advance that they will contract the disease—a logic that obviously defies the whole point of health insurance. Provisional voting is a form of election insurance, yet Judge Posner would render it useless in the situation where it is most necessary: the unpredictable obstacle to completing the qualifying paperwork.
Now I readily acknowledge that the idea that each individual voter ought to have insurance to protect against unforeseeable snafus in getting the necessary documentation is built on a premise that Professor Smith wishes to question: the paramount importance of protecting each citizen’s right to vote. Voting is overvalued in constitutional law, Professor Smith suggests, especially in relation to other constitutional rights (like property, free speech, or the right to bear arms). At one level, I have no argument with this suggestion. In any contest between democracy (process) and justice (substance), most people will choose justice hands down.
At another level, however, just the opposite is true. The problem is that reasonable people don’t always agree about what justice (substance) requires. So they need democracy (process) to resolve their differences of opinion about justice (substance) in order to live together. In the institutional arrangements that determine the rules by which people accept the authority of government over their lives—in other words, constitutional law—developing a fair set of democratic procedures necessarily must take precedence over insisting that one’s own substantive vision of justice must prevail over the competing substantive visions of justice advanced by one’s fellow citizens.
Professor Smith is correct insofar as he suggests that a fair set of democratic procedures requires more than voting rights. Some form of free speech is undoubtedly essential to a fair democratic process. Some form of private property is also likely essential, although it is more controversial to contend that a fair democracy depends upon the right of individual citizens to bear arms (and, if so, what kinds). But whatever the full panoply of individual rights that is necessary for any democratic process to be fair, equal voting rights for all adult citizens surely would be included. Equal voting rights are a prerequisite to democratic fairness not only for their instrumental value, which is most readily apparent when likeminded citizens pool their equal voting rights to prevail under majority rule; but also, equal voting rights are an essential ingredient to democratic fairness for the additional symbolic—but no less important—reason that they signify the equality of citizenship upon which democratic fairness depends. Thus, whatever adjustments and refinements we might wish to make to constitutional law, we cannot negate the status of one-person-one-vote as a “superright,” to use Professor Smith’s term.
I am also prepared to agree with Professor Smith that the set of rules for administering a fair democracy should include some form of a voter ID requirement. I am not sure, however, that I would attribute this point to a “broken windows” theory of election law. Instead, I would suggest that it inheres in the “superright” status of one-person-one-vote and its symbolic importance as the legal manifestation of equal citizenship. Precisely because the right to cast a ballot that counts equally as much as every other citizen’s ballot is so fundamental, each citizen needs to confirm that he or she is a proper possessor of this precious right—and is entitled to know that every other voter also can confirm this equal entitlement. In this respect, both Professor Smith and I believe that it honors the importance (he would say “seriousness”) of voting rights to require each voter to demonstrate one’s authenticity as an eligible citizen (or, in Smith’s words, “[to] demonstrate that he is who he claims to be”).
I stress again, however, that the particular methods of this authentication make a difference. I share the view that traditional methods of authentication, primarily reliance on poll workers to recognize their neighbors, are outdated. As Professor Smith says, modernity and rationality require some form of documentation, which as we have seen may include an affidavit alternative for the few individuals who unexpectedly cannot obtain the primary method of documentation in time. But a fair effort to introduce modernity and rationality to this authentication process would use a form of public-spirited (or civic-minded) reasoning that attempted to consider the interests of all citizens equally, rather than to select a more onerous than necessary method of authentication because it would promote a partisan advantage.
The best way to illustrate the difference between public-spirited reasoning versus the effort to promote partisan advantage is to invoke the idea of a “veil of ignorance” made famous by the political philosopher John Rawls. Try to imagine as best as you can that you did not know whether you were a Republican or Democrat, rich or poor, lucky or unlucky, and so forth. What form of voter identification procedures—methods to authenticate each other’s equality of citizenship—would you adopt? In considering potential alternatives, you would insist on one that was fair to everyone regardless of personal circumstances. This “veil of ignorance” thought experiment might not be able to settle upon the single fairest voter identification system, but rather would point to a range of options all of which are appropriately fair and reasonable to choose among. But this thought experiment undoubtedly would rule out some voter ID alternatives as unduly partisan.
I do not say that the Supreme Court’s interpretation of the Fourteenth Amendment, in Crawford or any other case, necessarily should embrace all details of John Rawls’s political philosophy. But I do think, as a majority of the current Justices (including Justices Stevens and Kennedy) have articulated, that the Fourteenth Amendment embodies a commitment to governmental impartiality toward all equal citizens, a commitment that requires public-spirit reasoning (rather than the promotion of partisan advantage) on matters as fundamental as the implementation of one-person-one-vote in the design of the democratic process. Thus, I do think that the Supreme Court needs to rule out particular forms of voter ID requirements that are evidently partisan, rather than within the range of reasonably fair alternatives.
I recognize that some Justices, most notably Justices Scalia and Thomas, are suspicious of an approach to the Fourteenth Amendment that calls for judicial reliance on public-spirited reasoning, instead of judicial reliance on longstanding traditional practices. But in this regard there is perhaps a potential irony in the making. A tradition-based approach to the Fourteenth Amendment would be highly dubious about the constitutionality of any new law that required voters to document their identity, since these new laws form no part of the tradition of democracy in America. Instead, as Professor Smith says and I have concurred, they are an effort to bring modernity and rationality to our democratic process. Thus, it will be interesting to see whether Justices Scalia and Thomas employ their tradition-based approach in evaluating the constitutionality of the voter ID law in Crawford.