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Crawford—Just the Facts

To date, many supporters of photo ID laws have played notoriously free with the facts. Monday, they got some company from the Supreme Court…

  • Justin Levitt
April 30, 2008

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.

Read part II.