“The more things change, the more they stay the same.” Alphonse Karr
In 2008, I wrote an article for the Contra Costa Lawyer, titled “Why California Should Not Enact a Voter ID Law.” In it, I argued that voter ID laws lead to the disenfranchisement of the most vulnerable and underrepresented groups in our political system. Four years later, we find ourselves once again preparing to vote in a Presidential election, and again dealing with the question of the legality and necessity of voter ID laws.
Four years ago, the Supreme Court upheld what was at that time the country’s most restrictive voter ID law. Crawford v. Marion Cty. Election Bd., 128 S. Ct. 1610 (2008). Commenting on the decision, I wrote that requiring voters to show photo ID at the polls sounds innocuous at first blush – how hard is it really to whip out your driver’s license or state ID before you vote? In fact, for some groups, getting that ID is too expensive, too difficult, or even downright impossible.
Typically, they are the groups that are most vulnerable in our political system – the groups with no money, no power, and very little voice. They are the elderly, who sometimes have no driver’s license because they no longer drive. They are the poor, who may not be able to afford the cost of a photo ID. They are non-native English speaking minorities, who may find it difficult to understand the procedures necessary to get an ID card. They are the homeless, who have no address to put on an ID card. The result of a voter ID requirement is the disenfranchisement of members of these groups. Despite this, the Supreme Court decided that the potential harm to a “small number of voters” (Crawford, 128 S. Ct. at 1622) was outweighed in Indiana by the state’s interest in preventing voter impersonation fraud. Id. at 1617-20, 1624.
Today, the disenfranchisement of this “small number of voters” continues to be seen by the courts as an unfortunate but acceptable side effect. On August 15, 2012, the Commonwealth Court of Pennsylvania refused to grant injunctive relief against Pennsylvania’s strict voter ID law despite acknowledging that “[p]etitioners’ counsel did an excellent job of ‘putting a face’ to those burdened by the voter ID requirement.” Applewhite v. Pennsylvania, No. 330 M.D. 2012 (Pa. Commonw. Ct. Aug. 15, 2012)
What Has Changed and What Has Remained The Same?
Let’s start with what remains the same.
Four years ago, the proponents of the Indiana law at issue in Crawford could not identify instances of the harm that their law was designed to protect against – that is to say in-person voter fraud. Indeed, the majority conceded that “[t]he record contains no evidence of any such fraud actually occurring in Indiana at any time in its history.” Crawford, 128 S. Ct. at 1618-19. As the dissent pointed out, this is consistent “with the dearth of evidence of in-person voter impersonation in any other part of the country.” Id. at 1637.
Four years later, voter ID proponents have yet to come up with any compelling evidence that the “harm” such laws are designed to prevent actually exists. As in Indiana, the proponents of the Pennsylvania law “admitted in court filings that no identifiable instances of voter fraud would be curbed by the new law. Instead, they primarily argued the Legislature had the right to set new requirements for voting.”
Those findings are not limited to Pennsylvania. CBS News researched the ten states that recently passed voter ID laws and found voter fraud of any kind to be extremely rare: With 40 million registered voters in those states, CBS News found less than 70 voter fraud convictions in the last decade. Similarly, a national analysis of voter fraud allegations found in-person voter fraud to be “virtually non-existent.” The same study showed that Pennsylvania’s law currently leaves 9% of its eligible voters unable to vote because they do not have adequate identification. “Even if 90 percent of those voters got the correct identification by Nov. 6, that still could leave 75,800 voters disenfranchised.”
So What Has Changed?
Despite the lack of identifiable harm, what has changed is the exponential increase in the number of voter ID laws across the country. Since 2010, 11 states have passed some form of voter ID law. Opponents have obtained injunctions against these laws in three states – Texas, Wisconsin, and South Carolina. In the most recent development mentioned above, however, the Commonwealth Court of Pennsylvania upheld the strict voter ID law enacted in that state. It is widely expected that opponents of the law will appeal to the Pennsylvania Supreme Court.
If harm from in-person voter fraud is nearly non-existent, then why the sudden increase in voter ID laws? Generally, supporters of these laws insist that they are important to protect against fraud, despite mounting evidence to the contrary. More likely, these laws are part of an election strategy intended to disenfranchise voters who largely tend to vote Democratic. As I mentioned in my prior article, the voters most directly affected by voter ID requirements are those who traditionally support the Democratic Party and not the Republicans – the poor, minorities, and the disadvantaged. As Dan Quayle is famously said to have observed, “Republicans have been accused of abandoning the poor. It’s the other way around. They never vote for us.”
In June of this year, Pennsylvania Representative Mike Turzai made a similarly unscripted statement, admitting that the new voter ID law in Pennsylvania would allow Romney to win that state. Listing recent accomplishments in a speech to the Republican State Committee, Turzai said, “Voter ID, which is going to allow Governor Romney to win the state of Pennsylvania, done.”
Whether we, as a people, continue to allow the right to vote to be taken away from certain groups for political gain remains to be seen. But it is frightening that in the last two years, we have reversed a consistent march toward enfranchisement of voters in this country, and instead begun making it more difficult for eligible voters to vote.
Nicole Mills is a mediator practicing in Walnut Creek. She is the co-Editor of the Contra Costa Lawyer and the Chair of the ADR Section. She can be reached at email@example.com.
As you consider the current state of voter disenfranchisement in the United States, here are some links you may find helpful or (in the case of the clip from The Daily Show) amusing.
- For a summary of current Voter ID and registration laws from the Brennan Center, go to: http://www.brennancenter.org/content/resource/2012_summary_of_voting_law_changes/
- My original 2008 article on this topic was part of a Point/Counterpoint feature on Voter ID laws. You can download the entire 2008 edition of the Contra Costa Lawyer, which includes both articles, here: http://www.cccba.org/attorney/pdf/cclawyer/2008-10.pdf
- What are the Voter ID laws in your state? USA Today interactive map
- Wizards of I.D. – The Daily Show, August 8, 2012
- How Much Voter Fraud Is There? A state-by-state map reveals the answer: almost none. Slate, September 18, 2012
- Pennsylvania Voter ID Law Sent Back By State Supreme Court To Lower Court For Reconsideration. Huffington Post, September 18, 2012
 Boehm, E. (2012, August 15). Judge upholds ‘voter id’ law; opponents plan to appeal to supreme court.Pennsylvania Independent . Retrieved from http://paindependent.com/2012/08/judge-upholds-voter-id-law-opponents-plan-to-appeal-to-supreme-court/
 Pa. upholds controversial voter id law. (2012, August 15). CBS News. Retrieved fromhttp://www.cbsnews.com/8301-18563_162-57494102/pa-upholds-controversial-voter-id-law/
 Khan, N., & Carson, C. (2012, August 12). Comprehensive database of u.s. voter fraud uncovers no evidence that photo id is needed. News 21. Retrieved from http://votingrights.news21.com/article/election-fraud/
 Baynes, T. (2012, August 16). Pennsylvania judge denies challenge to state’s voter id law. Reuters. Retrieved from http://in.reuters.com/article/2012/08/15/us-usa-voterid-pennsylvania-idINBRE87E0LT20120815
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