Voter Id: What’S at Stake?

DEBATE 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 de- manding in the nation.” ( Analysis: An Election Issue for an Election Year , Sept. 25, 2007, http://www.scotusblog.com/wp/uncategorized/ analysis-an-election-issue-for-an-election-year/). 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. Professor Smith finds no reason for the Court to tinker with Indi- ana’s voter ID laws, and leads off the debate by invoking the “broken windows” theory of Kelling and Wilson. He intuits that “to most Americans . a requirement that a voter demonstrate that he is who he claims to be is considered a most minimal intrusion.” He contin- ues, even if it is true “that a voter ID law prevents very little fraud in a direct sense, . 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 . .” Professor Foley agrees that voting is a serious matter—so serious, in fact, that “[e]qual voting rights are a prerequisite to democratic fairness not only for their instrumental value . but also . for the additional symbolic . reason that they signify the equality of citizen- ship upon which democratic fairness depends.” Professor Foley sees Indiana’s law as unnecessarily draconian and argues that “a fair effort to introduce modernity and rationality to th[e] authentication process would use a form of public-spirited . 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.” (241) 242 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 156: 241 PENNumbra OPENING STATEMENT Broken Windows and Voting Rights Bradley A. Smith † 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 Indi- ana’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 appar- ent 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 rea- sons 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 re- sult 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, † Professor of Law, Capital University Law School; Commissioner, Federal Election Commission, 2000–2005. 2007] VOTER ID 243 Judge Posner noted more dryly, “There is not a single plaintiff who in- tends 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 Democ- ratic activists opposed to them. This suggests that there may be more to the claims than meets the eye, but just what? Democrats accuse Re- publicans of wanting to suppress the votes of minorities and the poor, who they argue are less likely to have photo IDs, and who they pre- sume, 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 posi- tion 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, nei- ther 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. Pub- lic opinion polls show overwhelming support for voter ID laws, with support cutting across party lines. The private Commission on Fed- eral 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 in- adequacies of public policing . [U]ncorrected disorders tend to mul- 244 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 156: 241 PENNumbra tiply 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 an- other 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 perpetra- tors 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 bal- lot 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 sys- tem 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.

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