Blog
Voter ID
By Thaddeus Kromelis – 05/12/08
The Show Me State – today lawmakers in Missouri are expected to vote on a constitutional amendment that would require voters to provide proof of citizenship—birth certificates and passports, leave the utility bill at home—when registering to vote. Supporters claim erecting this barrier will prevent illegal immigrants from casting votes and keep the polls free of voter fraud.
According to the New York Times, the Missouri law is expected to pass and would yolk voters with a burden greater than the Indiana's voter ID law recently upheld by the Supreme Court. Also, of 19 states considering similar requirements, Missouri is the only one that could very well have something on the books in time for the presidential election.
Jason Rosenbaum at the Columbia Tribune is reporting on his blog that the Democratic minority is expected to filibuster the bill if it gets out of today's Missouri Senate committee hearing, despite the likelihood that the bill would pass if they mounted such an effort.
Rep. Jeff Harris, D-Columbia, speaks against legislation:
House Speaker Pro Tem Bryan Pratt, R-Blue Springs, speaks in favor of legislation:
Tags: Democracy, Voting Rights & Elections, Voter ID
By Myrna Pérez – 05/09/08
The story of the elderly Indiana nuns who were turned away from the polls because they lacked voter ID has won wide attention. Those who urge harsh voter ID laws, supposedly to block voter fraud, can't be too happy. So now they have started to respond. Their answer: attack the nuns!
John Fund, writing on the Wall Street Journal website, charges that the nuns could have voted, because they could have gotten "provisional ballots." Let's see: to get the ballots, the nuns, in their 80's and 90's, would have had to go first to the polling place ... then to the state Bureau of Motor Vehicles office ... then to the county seat within ten days. All to do something they could have done their entire lives, i.e., exercise their right to go to the polls and vote.
Or, he says, they could simply have voted absentee - again, something these voters never were forced to do before. It hardly seems fair to tell citizens, "You can vote without a drivers license, but only if you do it from hiding and make your plans long in advance." (P.S., if the goal is to prevent fraud, couldn't a trickster also vote absentee?)
There's a better answer. Let's stop passing laws that make it harder for eligible citizens to vote. Let's focus instead on passing laws to make the American voting system the best in the world. That would mean electronic machines that work and give paper records, professionalizing election administration so partisan hacks don't oversee elections, and a move to universal voter registration - where the government makes sure that eligible voters are on the rolls and can cast their ballots.
Improving democracy? As the nuns might say, it's time to get in the habit.
Tags: Voting Rights & Elections, Voter ID
By Justin Levitt – 05/02/08
> Cross-potsed from ACS Blog
On April 28, the Supreme Court handed down a decision in the Crawford cases,
rejecting a challenge to Indiana's law requiring voters at the polls to
provide certain types of government-issued photo identification. I had predicted
that the opinion would likely have impact far beyond Indiana, refining
the standard for justifying a burden on voters, and potentially
changing the ground rules for 2008 and beyond. But by and large, it
looks like I was wrong: though the rhetoric around the case grows ever
louder, in terms of the legal holding, this was far more a whimper than
a bang.
The decision was split, 3-3-2-1. Justices Stevens and Kennedy, and
Chief Justice Roberts, issued the "lead" plurality opinion, rejecting
the challenge to the law as overbroad in light of the limited evidence
in the record on the extent of the law's burdens.
Justices
Scalia, Thomas, and Alito would have gone much further, granting
blanket approval to any election law without intentional discrimination
or severe widespread impact. The latter, they hinted, would require a
showing of serious problems for the average elector. Absent that,
states could presumably feel free to forbid rich and poor alike from sleeping under bridges.
Justices
Souter and Ginsburg dissented, finding that the state had not
adequately justified the burdens of the law, even on the case's limited
record. Justice Breyer also dissented, writing separately to emphasize
that Indiana offered no defense of its law—the most restrictive in
the country—to justify restrictions above and beyond those in place
in other states.
So what to make of the mix? Justice Stevens'
plurality opinion is controlling, but it does not offer much specific
control. It affirms the "flexible" constitutional standard of Anderson v. Celebrezze:
courts must "weigh the asserted injury to the right to vote against the
‘precise interests put forward by the State as justifications for the
burden imposed by its rule.'" The more severe the burden, the hardier
the necessary justification. This balance, the plurality makes clear,
requires a "hard judgment." And that's most of the guidance the opinion
provided.
To be fair, the plurality did resolve a few pending
issues. For example, there was a question about whether cases
concerning a voter's right to cast a ballot (Dunn v. Blumstein, Bush v. Gore, Purcell v. Gonzalez) involved a different degree of scrutiny than ballot access cases asserting more indirect injury: with nary a mention of Dunn et al. in the Crawford plurality, it is now clear that the flexible Anderson standard applies across the board.
The opinion also makes clear that the Anderson
test does not function like a light switch, applying strict scrutiny to
laws causing severe burdens and giving a pass to all others. Instead,
the test is more like a dimmer: however slight the burden, "it must be
justified by relevant and legitimate state interests ‘sufficiently
weighty to justify the limitation.'" The "relevant" qualifier is
clearly significant: even slight burdens will be unjustified by
rationales that are "unrelated to voter qualifications." Thus, the poll tax, however small, remains unconstitutional.
Furthermore, gerrymandering aside,
the opinion puts the kibosh on the argument that a partisan lineup is
cause to question election laws that are otherwise justified. Overly
restrictive partisan effects from election laws, presumably, should be
sussed out by examining the burden on certain classes of voters, and
not through a roll call.
Beyond that, the case came down to the
facts in the record ... and the plurality thought this record too bare to
strike the law down across the board. Part of the problem is that the
case was a pre-enforcement challenge, brought before Indiana's law was
put into effect and therefore without direct evidence of past harm. But
the case record was also thin on reliable anticipatory statistics, and
somewhat thin on affidavits articulating the burdens that individual
voters could reasonably anticipate. These gaps provided a good part of
the reason (or the excuse) for the Court to reject the petitioners'
challenge. Without solid proof of burden in the record, Indiana's
justifications for its laws were good enough.
It's not entirely
clear what evidence of burden on voters is now required. The overall
feel is that the Court has made it more difficult for plaintiffs to
mount a facial challenge. But given the Court's headlong sprint from
facial challenges in other recent cases,
the language here is relatively modest. With enough proof that enough
voters will be sufficiently burdened—burdened, not blocked outright—a pre-election facial challenge still seems viable, albeit mildly
disfavored. And with enough proof that certain voters will be
sufficiently burdened, as-applied challenges are available to carve
exceptions from election laws of general application. "Enough" and
"sufficiently" are terms left to define another day.
To me, those
are substantial silver linings in a decision with much to criticize,
even without lamenting the result for ID-less Hoosiers heading into
next week's primaries. I've written elsewhere, for example, about the Crawford plurality's factual lapses. Moreover,
the Court's evidentiary standards imply that challenges will be easier
to win only after voters have lost their rights, yielding victories
profoundly Pyrrhic. And like Brad Smith (who has graciously allowed me
to excerpt his email to a private listserv), I am bewildered by the
unwarranted stature the Court seemed to grant the Carter-Baker
Commission's questionable research:
What
is the Carter-Baker Commission? It's not a government agency, elected
or even appointed by those who have been elected. It's not an academic
report subject to academic scrutiny or peer review. In the end, it's
just a bunch of guys (and gals) saying, "here's what we think." . . .
Whence the deference given to a private group like this? . . . They
just heard some "witnesses" and maybe looked at some other evidence and
then signed on to a report as their opinion. Well, heck, lots of people
have an opinion.
Still, as Dan Tokaji notes, it could have been worse. Though voter ID laws have largely been partisan affairs,
the Court did not break down along typical 5-4 ideological lines. Six
Justices recognized that restrictive ID laws might unduly burden some
eligible voters, particularly poor and elderly citizens. The federal
courthouse remains available to these voters, though it will take a
hefty push to open the doors.
Tags: Democracy, Voting Rights & Elections, Voter ID
By The Thread -- VN – 05/01/08
"The Great Disenfranchisement of 2008 has begun," according to Daily Kos, on yesterday's Supreme Court decision to uphold Indiana's voter ID law. Dubbed the most important election case since Bush v. Gore, Crawford posed a challenge to the law, the most restrictive in the nation, which could disenfranchise thousands of eligible voters and could have a big impact on the November election. The Washington Post, LA Times, WSJ, NY Times, and USA Today all front the 6-3 decision, and there's also interesting analysis on Slate's Convictions blog, and from Rick Hasen at Election Law Blog.
There seemed to be no disagreement among the justices that these laws would make voting more difficult for some people. The question then hinged on whether the law was enough of a burden to be unconstitutional. And so the 6-3 decision allowed us a window into what our Supreme Court justices deem to be a "burden."
Indiana's law requires voters to show a current photo identification issued by either the state of Indiana or the federal government (no student or employee IDs, no utility bills, and no expired IDs allowed). Indianans can apply for free photo ID from the state, but in order to get one they must show another official document, like a birth certificate or passport, which do cost money to obtain.
For people who show up at the polls without ID, they can cast a provisional ballot that will only be counted (with few exceptions) if they appear at a county clerks' office within 10 days with the proper ID.
Stevens wrote in his lead opinion that there was not any "concrete evidence of the burden imposed on voters who now lack photo identification," and so concluded that Indiana's law did not pose a "severe burden," whereas Breyer saw the burden as "serious" and "uncomfortably close" to an actual monetary poll tax.
Scalia, Thomas, and Alito called the law "eminently reasonable." Scalia even implied in a footnote that the poll tax (struck down by the Supreme Court over forty years ago) would not be unconstitutional.
Many states with voter ID laws allow people to show alternative forms that are equally helpful in validating their identities.
Any decision that allows Hans von Spakovsky to say it has "vindicated the Bush Justice Department" should be met with pause. However, the 6-3 split "kept the door open to future lawsuits that provided more evidence," said Linda Greenhouse in the New York Times. In other words, voters can challenge these laws on their own once they can provide evidence that they were prevented from voting.
Talk about burdens. "With this decision, the Court has seriously watered down protections to the franchise by insisting that the rights of voters can be protected only after their rights have been abused," said Renée Paradis, counsel at the Brennan Center. "In putting virtually all the burden of proof on plaintiffs seeking to argue that laws illegally restrict their voting rights," said the Brennan Center's Wendy Weiser to the NY Times, "the decision makes it much tougher for voting rights groups to prevail in court."
This is a good time to remind Indianans that if they do have trouble voting next Tuesday, or encounter any confusion with ID requirements, they should call the Election Protection Hotline at 866-OUR-VOTE.
Tags: Democracy, Voting Rights & Elections, Voter ID
By Michael Waldman – 04/30/08
The Supreme Court issued a ruling in the most important voting case since Bush v. Gore. In Crawford v. Marion County, the Justices upheld Indiana's law requiring a government-issued photo ID as a condition of voting. (The Brennan Center coordinated the amicus briefs in opposition to the law.)
We're analyzing the decision and the road ahead, but here are a few things we know. The Court accepted our argument that there is no evidence of widespread voter fraud. Unfortunately, the Justices ruled that even though the Indiana law could disenfranchise real voters ... and even though there was no proof of voter fraud in the state ... the plaintiffs had not proven that Indiana violated the Constitution by imposing these rules. It left open the door for further challenges to laws where plaintiffs could prove injury.
What will this all mean?
First, we do expect that there will be a major push in state legislatures and Congress to pass very restrictive voter ID laws, this year or next. Whatever the merits or demerits of voter ID in theory, these proposals invariably are crafted to impact the poor, minorities, the elderly and others who simply lack the required photo ID. We are working with advocates to make sure they have our research on the impact of ID proposals.
Second, we are moving to strike down other barriers to voting and fair elections. Coincidentally, the day after the Crawford opinion came down, we filed a we filed a federal lawsuit to strike down Florida's restrictions on voter registration groups. (The suit was filed on behalf of the Florida League of Women Voters.) The restrictions are so severe the League—hardly a radical fringe group!—has been forced to shut down its registration activities. Our board chair, James Johnson, is co-counseling the case with us.
Ultimately, it would be a huge missed opportunity to simply focus on stopping bad laws. We see a thrilling surge of citizen engagement and participation in this election. This should be the time to craft new voter registration laws to make sure that every citizen who wants to vote, can vote. In the coming weeks we will be putting forward a draft proposal for universal voter registration, including Election Day Registration, for Congress and others to consider.
We're eager to hear your thoughts, so please let us know if we can answer any questions on these or other issues.
Best regards,
Michael Waldman
Executive Director
Tags: Democracy, Voting Rights & Elections, Voter ID
By Justin Levitt – 04/30/08
In the past, we've analyzed press reports on alleged
instances of voter fraud, and found reason to
question some of the conclusions. In a post moments ago, we questioned the Supreme
Court's devotion to accurate factual reporting, in a decision that otherwise
accurately characterized flawed press reports. And now, we come full circle,
finding factual inaccuracies in the press around the Supreme Court's decision
itself. Whew.
Most of the damage is confined to editorials and columnists—and, fortunately, some pieces are far more careful than others. Still, there
are some opinions floating around that are dangerously unhinged from fact.
Let's start with the most common myths and misstatements.
An editorial
repeats the misconception that Indiana
is the norm: "in 20 states, some form of photo identification is necessary
before voting." Another report
claims that "about 25 states" have laws like Indiana's. Wrong. The real number is 3: Indiana,
Georgia, and Florida—and in Florida,
your ballot will still count even if you don't have photo ID. The photo ID
states are the real outliers here.
A columnist
parrots the misconception that photo ID is required for all sorts of daily
activities: "Here are just a few activities that require identification:
alcohol and tobacco purchases, boarding an airline, entrance to a casino,
senior discounts at retail stores, check cashing, passport purchase, border
crossings, prescription purchases, and, in some instances, the use of a credit
card to make a retail purchase." Not if
he's talking about photo ID, they don't. Giving credit for the accurate
responses (border crossings, some credit card purchases), and a very generous
half-credit for the responses that are only accurate some of the time (alcohol
and tobacco, casino, senior discounts, check cashing, prescription purchases),
he ends up with a 50%. In my school, that got an F.
A report
furthers the misconception that "lawyers challenging the law didn't produce a
single voter injured by it." Not true.
In part because the law was challenged before
it went into effect, there was no testimony in the official record from voters who
had already been prevented from
voting. But there was evidence of several voters without valid ID who would
have difficulty obtaining that ID. And
since the law went into effect, papers
submitted to the Supreme Court shows that in one county alone, dozens of voters
in the 2007 off-year municipal election cast ballots that could not be counted
solely because of the photo ID law.
And then there's Hans von Spakovsky. You can't blame the reporting
here: they just quote him. But his assertion that
the Crawford decision "confirms the
validity of photo ID laws" is as wrong as his claim that the decision
vindicates the DOJ for approving Georgia's 2005 ID law. The Court
case didn't say photo ID laws were OK: it said that there wasn't enough
evidence in this particular case—which was brought before the law ever went
into effect—to strike the law down. While it may now be harder to get the
proof necessary, future ID laws that disenfranchise vulnerable populations are
as constitutionally suspect as they ever were.
And the Court certainly
didn't say that the DOJ was right to approve Georgia's law in 2005. Crawford addressed an Indiana
law under the Constitution; the DOJ addressed a Georgia law under the Voting Rights
Act. Different laws, different standards, different analysis. The only
similarity is that both results were wrong.
Tags: Democracy, Voting Rights & Elections, Voter ID
By Justin Levitt – 04/30/08
To date, many supporters of photo ID laws have played notoriously
free with the facts. Monday, they got some company from the Supreme Court.
Surprisingly, there is much in the Supreme Court's fractured opinion to—well, not to applaud, but to tolerate as an
improvement over what might have been. A commitment to factual rigor, however, is not in that category.
As
Jack Balkin so perceptively notes, the Court's Indiana voter ID opinion was grounded not in truth, but in
truthiness. If it sounds right in your gut, it must be correct—no matter what the facts actually are.
It didn't start with the Court. The
appellate decision by Judge Posner was chock-full of truthiness, which is mighty dangerous for a branch that derives its legitimacy in part from its ability to dispassionately validate fact. "
The benefits of voting to the individual voter are elusive"—never mind the Edmund Pettus bridge. "
So some people who have not bothered to obtain a photo ID will not bother to do so"—never mind the affidavits of real citizens discussing real difficulty and not mere "bother." And, of course: "
Some [in-person] voter impersonation has been found . . . in the states that have been studied"—never mind any need to actually read the studies in question.
On Monday, the
Supreme Court showed that they had at least read the fraud evidence that Judge Posner could not be "bothered" to read. Both Justice Stevens' plurality opinion and Justice Souter's dissent acknowledged that the evidence in the case
cited next to no reports—much less proof—of voter fraud that ID laws can cure (
amici similarly showed a lot of smoke, but strikingly
little fire). And as the opinion made clear, there was absolutely no evidence of any such problem in Indiana, not once, ever.
That acknowledgment was certainly welcome (even if, for the plurality, it didn't matter). But it was also the high point of the brief factual interlude.
We now return you to your regularly scheduled truthiness. And just in case you're watching with friends over 21, try drinking every time the plurality just makes something up.
Footnote 6: Justice Stevens presumes that ever-increasing percentages of Hoosiers are getting the necessary valid ID. Is this supported by fact? Who cares?
Page 10: The opinion quotes the Carter-Baker Commission for the proposition that "There is no evidence of extensive fraud in U.S. elections or of multiple voting, but both occur. . . ." How do we know? You've got to
feel it!
Page 10: Same page, different misstep. "Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check." The reason there's no citation here is because excepting a few buildings in a few big cities, it's simply
not true. But facts are so messy!
Footnote 12: "One voter was confirmed to have committed in-person voting fraud." Since this is the only case of in-person fraud within the last century mentioned specifically in the plurality opinion, you'd expect the description to be spot-on. Sadly, the article cited did not "confirm" fraud, but relied on a notation in the voter rolls, without any evident further investigation. It's possible, sure. But is it also possible this was merely a clerical error, like similar voter roll entries in
Florida,
Georgia,
Missouri, and
Wisconsin? Doesn't matter!
Page 13: The state has an interest in fostering "public confidence in the integrity of the electoral process." Do photo ID laws accomplish this? The evidence so far says
no. But why rely on evidence?
Page 14: Provisional ballots are adequate remedies for those who don't have photo ID. Of course, they usually won't be counted if you don't show up with ID within the next 10 days. But the right to vote isn't about actually
voting, it's just about feeling like you voted...
Page 16: Provisional ballots again, but this time under the assumption that you can sign an affidavit at a special government office in order to have the vote counted. Not true, of course, unless you're indigent or have a religious objection to being photographed. But reading the statute is just one of those things that "lawyers" go on and on about.
Whew. OK, stop. There's more in the other opinions, of course, but there's no sense overindulging.
And then, there's the grace note that makes the truthiness particularly galling. After speculating up a storm, the plurality takes Justice Souter's dissent to task (footnote 20). The reason: trying to assess the extent of the law's burden using "supposition based on extensive Internet research."
Apparently, it's better to base your supposition purely on your gut.
Tags: Democracy, Voting Rights & Elections, Voter ID
By Wendy R. Weiser – 02/04/08
You can't make this stuff up.
This weekend, the Indianapolis
Star reported
that the state of Indiana-which is currently defending its law denying the vote
to people without government-issued photo IDs before
the U.S. Supreme Court-is poised to revoke the IDs of up to 90,000 people. This ID purge is scheduled to happen later
this month, right in the middle of the primary season in an important
presidential election year, and only weeks before a special
congressional election.
This means that, in addition to the 13% of registered
voters in Indiana who don't have current state-issued photo IDs, up to
90,000 more could be blocked from voting because of Indiana's misguided voter
ID law, the most restrictive such law in the country. (Caveat:
the state is not physically collecting the cancelled IDs, and so it is
not clear what will happen when their holders show up to vote.)
And it's even worse than it sounds. The reason Indiana is planning to revoke these IDs is
because the state's Bureau of Motor Vehicles ran a computer check and was
unable to "match" the bearers' information against records kept by the Social
Security Administration. This kind of computer
matching is a singularly misguided and unreliable way to identify invalid ID
records. Typos, clerical errors, and
other irrelevant discrepancies in BMV and Social Security databases typically
cause a huge number of match failures between perfectly valid government records. A person listed as "Bill" on his driver's
license but "William" on his Social Security card will fail to match; so will a
woman whose driver's license is in her married name but whose Social Security
records are in her maiden name.
When other jurisdictions have tried record
matching in the voting context, there were match failures for up to 20-30%
of would-be voters. When they tried to
match records against the Social Security database, as Indiana has done here, the match failures
have risen to 46.2%. Erroneous match
failures are typically more common for people of color, as the Brennan Center
recently found when it analyzed Florida's
match files in connection with an ongoing lawsuit. Again, these match failures are not
indicative of any problems with the voters.
After initial efforts to investigate these mismatches in Indiana, a BMV
spokesperson admitted
that "[t]he great majority of mismatches that occurred were what we would call
innocent or inadvertent kinds of things."
The bottom line here is that Indiana has just made it doubly difficult
for its citizens to vote. Not only do they
have to go through the expense and effort to get government-issued photo IDs in
order to vote, but those who already have ID now need to navigate a bureaucratic
obstacle course to make sure that their IDs haven't been bumped. The ID purge may also circumvent the voter protections
Congress put in place in the Motor Voter law to protect against inaccurate
purges of the voter rolls.
It's almost as though officials in Indiana are trying to keep their citizens-or at least some of their
citizens-from being able to vote.
Let's hope that Indiana
rescinds its plans to cancel these IDs before its too late. But more importantly, this incident provides
yet another reason why it doesn't make sense to tie voting rights to
state-issued IDs, and yet another demonstration of the huge number of people
that could be unfairly barred from voting because of Indiana's voter ID law. Let's hope that the Supreme Court is watching
this current mess when it decides the constitutionality of Indiana's voter ID law.
Tags: Democracy, Voting Rights & Elections, Voter ID, Voter Lists and Databases, Voter Purges and Challenges
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