On voter ID, polls and isolated incidents don’t matter

They say that when the law’s on your side, argue the law. When the facts are on your side, argue the facts. When neither the facts nor the law are on your side, pound the table.

On voting rights, conservatives are pounding the table.

In what has become a heightened national debate over voting rights in recent weeks, far more attention has been paid to Hillary Clinton’s critique of her Republican opponents’ voter ID laws than her proposal for automatic voter registration. I think that’s a shame, given how automatic voter registration is at once a noncontroversial and transformative way in which we could expand the franchise to millions of voters who are currently excluded from our political process for no good reason. But if the debate is to focus on voter ID laws and their relative merits, then game on.

The case for voter ID rests on two pillars: First, the specter of organized attempts (presumably on the part of blacks and illegal immigrants Democrats) to compromise the integrity of elections by illegally impersonating eligible voters and, second, public opinion. And to their credit, a recent Rasmussen poll showed photo ID laws enjoying 78 percent support among likely voters.

All of the necessary qualifications about Rasmussen polls are relevant here — the firm’s well-documented Republican house effect, their use of a likely voter filters at a time in the election cycle in which likely voter models are all but useless, etc. — but they aren’t disqualifying. It isn’t unreasonable to assume that a strong majority of Americans, who themselves have photo ID, don’t find it particularly burdensome to show one before casting a ballot. After all, like Rick Perry said, you need a photo ID to get on an airplane, so why shouldn’t you need one to vote?

Voting rights protest, via Michael Fleshman / Flickr

Voting rights protest, via Michael Fleshman / Flickr

Of course, just because the public has an opinion doesn’t mean that opinion is legal. The United States being a constitutional democracy, there are certain things you just don’t vote on; who gets to vote being close to if not at the top of the list. It doesn’t take too much digging to find past public opinion squarely on the wrong side of plenty of issues that we find wholly noncontroversial today — interracial marriage being the easiest example. So the argument that 78 percent of Americans backing photo ID laws justifies those laws’ existence is thoroughly unconvincing: More than 78 percent, and less than 100 percent, of Americans have photo ID, so what comes off as convenient for the majority is nonetheless disenfranchising for the minority — precisely the situation in which judicial review is necessary.

But while polls are easy to throw around, far more damaging, and far less relevant, are revelations that voter impersonation fraud — the kind that could actually be prevented by photo ID laws — actually exist. On Sunday, the Fort Worth Star-Telegram reported that a local candidate for a Democratic county precinct chair position pleaded guilty to instructing her son to vote on behalf of his father in a 2011 election. The father showed up to vote later in the day, only to find that his ballot had already been cast.

You could make a bad argument — and I’m sure many will — that this case and a handful of others like it justify the need for heightened voting restrictions, as if statistically negligible instances validate the entire exercise. The guilty plea in Fort Worth will undoubtedly be used as a defense when voter ID laws are challenged in courts of law and of public opinion, used to proclaim that — aha! — voter fraud is a rampant scourge that we must steel our electoral system against.

This flies in the face of both basic statistics and basic democratic theory.

To play a sheer game of scoreboard, the tally now stands at one case of voter impersonation fraud in Texas versus between 600,000 and 800,000 eligible Texan voters who lack a photo ID. Jefferson said that it would be worse to convict one innocent person than to let ten guilty people go free; photo ID proponents in Texas are willing to convict hundreds of thousands of innocent people for fear that one guilty person will go free.

Keep in mind that no one has claimed that voter fraud doesn’t exist at all; it just doesn’t exist in any meaningful, statistical way. The most comprehensive study of voter fraud that has so far been conducted did find 31 cases of voter fraud…out of over one billion votes cast. And many of those cases would not have been prevented by photo ID requirements. This is because voter impersonation fraud is almost impossible to carry out on a scale large enough to influence the outcome of an election. As the author of the study, Justin Levitt, pointed out when publishing his findings in The Washington Post:

…requirements to show ID at the polls are designed for pretty much one thing: people showing up at the polls pretending to be somebody else in order to each cast one incremental fake ballot. This is a slow, clunky way to steal an election. Which is why it rarely happens.

In order to justify photo ID laws, it isn’t enough to show one case; one would need to show an organized effort to conduct voter impersonation fraud on a large enough scale to influence the outcome of an election. When we say that voter fraud “doesn’t exist,” that’s what we mean: the kind of voter fraud that could be prevented by requiring every voter to show a photo ID isn’t altering the outcome of elections. Not even kinda.

On the other hand, the photo ID requirements that purport to prevent this nonexistent fraud are absolutely affecting the outcome of elections. And unlike Reince Priebus, people who make this claim have some data to back up their assertions.

In 2014 alone, there were four statewide races in which the margin of victory was surpassed or nearly surpassed by the number of people affected by a voting restriction their state had enacted in the preceding four years. In Virginia, my home state, between two and four percent of eligible voters lack photo ID — a figure that closely tracked with the margins of victory in both the 2013 gubernatorial and 2014 senate elections.

And, not for nothing, one of Virginia’s strongest proponents of photo ID legislation, Mark Obenshain, lost his bid for attorney general in 2013 by less than 200 votes just one year before the state’s photo ID law went into effect. If the law had been in effect and even two tenths of one percent of Virginia’s eligible voters without photo ID were kept from casting ballots in that election, he could be the state’s attorney general right now instead of Mark Herring.

So I remain completely unimpressed by appeals to public opinion, and I remain completely unimpressed by isolated incidents. Conservatives can pound the table all they want, but opponents of voter ID have both the facts and the Constitution on their side.

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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5 Responses to “On voter ID, polls and isolated incidents don’t matter”

  1. HeatherENowak says:

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  2. FLL says:

    Below I mentioned the 100% party-line split in Citizens United v. FEC. Bush v. Gore had the same 100% party-line split: Kennedy, O’Connor, Rehnquist, Scalia and Thomas (all appointed by Republicans) voted to stop the vote count in Florida; Breyer, Souter, Ginsburg and Stevens (all appointed by Democrats) voted to continue the vote count.

    Ya know, people float the idea that it doesn’t matter at all whether the Supreme Court justice is nominated by a Republican or Democratic president, and Supreme Court justices will somehow respond to “mass movements”… but that theory does not hold up well. After Bush v. Gore in 2000, some disheartened critics even said that Supreme Court justices are just politicians in robes. Just sayin’.

  3. rmthunter says:

    I thought we all learned that lesson in 2000: if you want to steal an election, you go to the Supreme Court.

  4. FLL says:

    You could probably argue that voter photo ID laws are unconstitutional under the Fourteenth Amendment because such laws seek to “abridge the privileges or immunities of citizens of the United States.” However, that assumes that at least four justices on the U.S. Supreme Court are willing to hear a challenge to a voter photo ID law such as the one Governor Scott Walker pushed through in Wisconsin. In March of this year, the Supreme Court declined to hear the case (link to ThinkProgress article here). That means the Supreme Court won’t take such a case until the composition of the Court leans in that direction, which is likely in the near future if the Democrats maintain their lock on the White House. Ditto for overturning Citizens United v. FEC, which allows corporations to pour unlimited money into election campaigns and was decided on a 100% party line split: Kennedy, Roberts, Alito, Scalia and Thomas (all appointed by Republicans) voted in favor; Stevens, Ginsburg, Breyer and Sotomayor (all appointed by Democrats) voted against.

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