This is for Bob

THE VOTER ID FLAP

Although there has been a persistent din alleging wide-spread voter fraud for many years, the most recent rendition has roots in the election meltdown of 2000 and the subsequent 2004 train wreck. You would  have though those two debacles would prompt real efforts toward reform of the election laws… clarifying all of the diverse uncertainties and inequities.

Seems to me that it would have been in the best interest of everyone for the states to hammer out some clear, concise and fair laws ensuring that we wouldn’t ever see another election by SCOTUS. Didn’t happen. 2008 has come and gone and we now find election reform mired in partisan politics. Instead of correcting anything we have a bigger mess now than ever before.

The lawyers are happy, because the current slate of proposed law changes actually increase the odds of litigation and repeat meltdowns. Case in point: voter-identification laws.

Republican-controlled state legislatures across the country have proffered a plethora of such bills. From the rhetoric you'd think that voter fraud was rampant and elections being stolen on a daily basis. Instead of true election reform, the states of Florida, Georgia, Hawaii, Idaho, Indiana, Kansas, Louisiana, Michigan, South Carolina and South Dakota have passed some form of photo identification law. 18 other states have either proposed such a law or have current non-photo requirements. Georgia has twice passed such a law, and twice it has been knocked down under Section V of the Voting Rights Act. South Carolina’s in likely next, and the Justice Department has several of the others under review.

Republicans cite copious anecdotal evidence of fraud to defend these efforts but offer no hard evidence. Democrats and civil rights organizations view the laws as the right wing seeking partisan advantage; claiming that because the mostly Democrat voting poor have a more difficult time securing voter identification, such laws would suppress participation. The poor tend not to own cars, meaning they might not have a driver's license, and they may not have the means or money to secure certified copies of documents, such as the birth certificates necessary to obtain state-issued photo ID.

So far it has failed to become clear to me exactly what the nonpartisan object of all this might be. Beyond the precious few isolated cases of identified fraud (almost none of which would have been preventable by any of the ID laws,) and of course the pundit’s anecdotes, there simply is no evidence of the kind of voter fraud a voter ID requirement would have detered. Are there studies of which I am unaware revealing evidence of voters casting ballots under false names?

I don’t think so, and I have looked. What the Republicans do have is ACORN… to which I say “Smoke and Mirrors.”

In October of 2008 the New York Post ran a story by Jean MacIntosh, titled “How ACORN got me into vote scam”. This is the story that started the wildfire that eventually spelled the demise of ACORN… starting all the wild rhetoric of rampant voter fraud.

But there was no vote fraud… at least not that could be identified by the dozens of investigations that followed. What was identified was voter registration fraud; a very different animal. Vote fraud is a serious federal felony. An example of vote fraud would be someone casting absentee votes for the entire population of the local cemetery… or some election official stuffing a ballot box. Voter ID wouldn’t have stopped either.

Registration fraud is a misdemeanor and happens when someone places fictitious names on registration forms, or the same person registers multiple times. It results in inflated voter rolls, which is a serious problem, but there is no evidence that fictitious registrations produced fraudulent votes. The Post story didn’t even allege this.

ACORN, however, was quite guilty of this… it was likely intentional… and it is a serious problem. It resulted from paying by the name for “bounty hunters” to register as many people they could. These individuals falsified lots of registrations, and were encouraged to do so. However heinous the practice, come Election Day it failed to produce fraudulent votes. These “ghost” voters invariably neglected to show up at the polls.

Thus state laws requiring voter-ID do not deter voter fraud in any of the ways proponents claim. We have documented evidence of people voting in two or more states, but voter identification is not checked across states. Absentee ballot fraud is also well documented, but the voter ID laws do not require proof of identity when casting an absentee ballot, either. So all these laws are doing is stroking the partisan base while increasing docket loads at various courts. Lawyers are grinning all the way to the bank.

Georgia’s partisan-based attempts are a good example of the cost of these laws.  Republicans there carried an ID bill into law in spite of the ruckus created by Democrat opponents. Georgia is under Section V of the Voting Rights Act, which means they had to apply for approval from the Justice Department before the law could go into effect. The requirement was to prove that the law would have no discriminatory effect on minority voters.

Tenured, non-partisan, career lawyers at the DOJ found that Georgia offered no proof of a problem with fraud, and further ruled that the ID law was indeed discriminatory. Their recommendation that the law not be approved was overruled by Bush Administration political appointees in DOJ management. Someone leaked internal DOJ memos to the Washington Post and the excrement hit the fan.

Opponents challenged the law and the federal district courts enjoined the law… ruling that the cost of the identification made the requirement a de facto poll tax. The court agreed with the DOJ careerists that there was no evidence of voter fraud, except in the area of absentee ballots, which was an area where the law actually made no-ID voting easier.

Georgia Republicans retaliated by passing a revised law, supposedly easing the difficulties for the poor to obtain an ID. The DOJ and the courts again ruled the law to be discriminatory. A lot of lawyers made a lot of money in court actions financed by the taxpayers… to the benefit of noone.

The partisan efforts solve no problems and in fact exacerbate existing tensions, but does this mean that all voter-identification laws are bad? Not necessarily, and especially if such laws could be incorporated into an omnibus, bipartisan election reform package. We should consider such revisions as federal voter registration and government issued national voter ID cards. We need to study ways to eliminate absentee vote fraud… all the while ensuring that people voting absentee are guaranteed to be counted.

What we have now is partisan hypocrisy on both sides. Flip this argument with the gun control debates. With the voter ID argument the right is claiming the law to be necessary for preventative measures. With gun control the left uses the same argument. In gun control to positions flip… with the left claiming a need for prevention and the right resisting. There is no evidence that preventative measures are needed in either instance… or that such measures provide any real results.

Nothing is going to change, however, until both sides get serious about improving our society and cease being so foolishly concerned with partisan one-upsmanship. We are a long way from that.

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For a little light reading disproving the validity of state voter ID laws, may I suggest the following studies:

Overton, Spencer, Voter Identification. Michigan Law Review, 2006; GWU Legal Studies Research Paper No. 210; GWU Law School Public Law Research Paper No. 210. http://ssrn.com/abstract=908371

Lott, John R., Evidence of Voter Fraud and the Impact that Regulations to Reduce Fraud have on Voter Participation Rates (August 18, 2006).  http://ssrn.com/abstract=925611

Alvarez, R. Michael Michael, Bailey, Delia and Katz, Jonathan N., The Effect of Voter Identification Laws on Turnout (January 1, 2008). California Institute of Technology Social Science Working Paper No. 1267R. http://ssrn.com/abstract=1084598

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