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Commentary

Courts Need to Keep a Skeptical Eye on New Voter Identification Laws

If one is looking for a silver lining in the controversy over the firings of 8 U.S. attorneys by the Bush Administration, it is that the controversy has drawn well-deserved attention to the question of “voter fraud” and the extraordinary measures some have used to manipulate election laws for political advantage under the cover of preventing such fraud. Now is the time for the courts to get involved to block new onerous voter identification laws until those supporting such laws can come up with real evidence of voter fraud that an ID would deter.

Many readers are familiar with the U.S. attorney scandal/vote fraud investigation connection: one of the reasons (if not the only reason) for the firing of the U.S. attorneys in New Mexico and in Washington State was their supposed failure to prosecute individuals for illegally voting. These attorneys defended themselves by noting that they conducted extensive investigations of vote fraud allegations, but found no cases they thought they could successfully prosecute.

But there’s a broader story as well that is only now getting media attention. Since the 2000 Florida fiasco, there’s been a partisan battle going on in state legislatures to change the rules for administering our elections. Many Democrats have favored reforms that make it easier for people to vote (such as election day registration); Republicans, in contrast, have argued for new voter photo identification laws that they say would prevent fraud at polling places. Democrats contend these laws are likely to disenfranchise a number of legal voters, such as poor voters who can’t afford the documents (such as birth certificates) needed to obtain the ID, or to get transportation to a state office that could issue one.

The debate over these laws took place in an empirical vacuum over how much fraud such ID’s would prevent and over how many legitimate voters would be deterred by identification requirements. Despite the empirical vacuum, laws imposing new voter ID laws have been passed in a number of states---including Georgia, Indiana, and Missouri--basically on party-line votes.

Courts struck down the Georgia and Missouri laws, but all eyes are now on Indiana, where the Seventh Circuit, in an influential opinion by Judge Posner, upheld that state’s voter identification law. Despite the state’s inability to point to a single instance of voter fraud that a voter ID law would help to prevent, Judge Posner said the law could go forward, because it was not a big deal if some voters would lose their right to vote, even assuming, as Posner did, that more Democratic voters would be deterred by the law than Republican voters. (A Democratic-appointed judge dissented, and the Seventh Circuit split virtually on party lines in deciding not to take the case en banc, to be reheard by the entire Seventh Circuit).

Judge Posner said the law could be justified as an anti-fraud measure, and that just because voter fraud is difficult to detect doesn’t mean it’s not there. Though he pointed to the “notorious examples [of fraud in] Florida and Illinois, they include Michigan, Missouri, and Washington (state),” he did so without citation and there’s no evidence I am aware of from these states that shows any real problem of the kind of fraud that a voter ID law would prevent: primarily people voting in the name of someone else.

Thanks to the U.S. attorney scandal and the focus on vote fraud, this kind of sloppy reasoning no longer holds water. As recent media reports revealed, despite a concerted 5-year effort by the Justice Department to target instances of voter fraud, the DOJ found almost none of it, certainly no organized effort to use identification fraud to cast illegal ballots. And of those who were prosecuted, many appeared to have made innocent mistakes. Moreover, as a New York Times article revealed, a bipartisan study of voter fraud commissioned by the U.S. Election Assistance Commission (and then withheld by the EAC) found virtually no instances of impersonation voter fraud. Another non-partisan study found that voter identification laws suppress turnout, especially among minorities; and this report was disavowed by the EAC (though released under pressure).

There have been instances of fraud in association with elections. Many of these involve registration fraud (which does not result in the casting of fraudulent votes), absentee ballot fraud and the buying of votes in local elections. Notably, absentee balloting has been exempt from the new voter identification laws; perhaps not coincidentally, absentee ballots tend to skew Republican. These instances of vote buying have not been so difficult to detect, despite the harsh penalties for such clearly illegal conduct, and it is not clear why polling place fraud would be any harder to uncover.

It is now incumbent upon those who still believe a great deal of voter fraud is taking place at the polls to come forward with sound methodology to show that such fraud is occurring on any kind of scale that would justify voter identification laws. (The main nongovernmental organization contending that polling place voter fraud is a serious problem, the American Center for Voting Rights, has mysteriously disappeared.) Until such fraud is shown, these laws should be viewed skeptically by the courts.

But some who raise the fraud arguments do not appear to have an interest in empirical evidence. Just ask Indiana’s Secretary of State, Todd Rokita, who, in the leaked draft EAC report, is quoted as believing in voter fraud more as a matter of religious faith than on empirical evidence. This should not be surprising. Secretary Rokita, despite being the state’s chief election officer charged with fairly administering the elections, recently gave a speech to a political group about how the GOP can start winning more elections again. He is also serving as chief fundraiser for a Republican presidential candidate.

Instead of engaging in partisan political activities, as chief elections officer he should now be calling for the Indiana legislature to repeal its law until someone can show polling place fraud as a serious problem (or even potential problem) in Indiana. I doubt Secretary Rokita will take such a step. It likely will take the Supreme Court’s intervention at this point to stop the Indiana voter identification law from being in effect in 2008.

--- Richard L. Hasen, the William H. Hannon Distinguished Professor of Law at Loyola Law School, writes the Election Law Blog. He explores the voter identification issue further in Part III of The Untimely Death of Bush v. Gore, 60 Stanford Law Review (forthcoming 2007).

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Daniel P. Tokaji

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Professor Tokaji has submitted the following writing testimony for today's hearing before the U.S. Senate Rules and Administration Committee on the proposed DISCLOSE Act.

 

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