The Voter ID Fraud
The voter-fraud argument comes down to a kind of duel over common sense. Voter ID proponents dismiss the lack of evidence; it stands to reason, they say, that if requirements are not strict, ineligible people will vote. Opponents counter that if it's hard to vote, some legal voters won't go to the polls. Whose votes matter? In recent years, conservative groups have insisted that precedence should go to "legitimate" voters, the kind of people who have ready access to ID. After all, Posner notes, "try flying, or even entering a tall building such as the courthouse in which we sit, without one." The roughly 18 percent of Americans who have never flown on a commercial airline are less worthy of concern.
The Indiana case will likely have an influence on a number of ID cases around the country. Arizona has in place a law requiring voters to prove their citizenship by presenting not just a driver's license but a passport or birth certificate upon registering and a photo ID at the polls. The city of Albuquerque changed its charter to require a photo ID at the polls. In Georgia the Republican legislature voted to require government-issued ID; the same session of the legislature voted to double the fee for such an ID. A federal court in Georgia initially blocked that ID law but then dismissed the challenge after the legislature amended the statute to waive the fee. The Albuquerque charter amendment has been stayed by a federal judge; the Georgia case is on appeal. At stake is the potential margin of victory in a close election.
If you doubt that, consider Missouri. Its law--the most restrictive in the country--was struck down before the 2006 election as a violation of the state Constitution. Senator Claire McCaskill went on to defeat Republican incumbent Jim Talent by a mere 48,314 votes out of 2,128,455 cast, a margin of only 2.3 percent.
The strongest argument for ID laws arises from the 1993 National Voter Registration Act, also known as the "motor voter" law. This act encourages mail-in voter registration and mandates that the states distribute registration forms at their driver's license bureaus. The result has been an increase in duplicate or obsolete registrations on state voter rolls, which could lead to mischief. The Help America Vote Act requires states to centralize voter lists and eliminate duplicate registrations. But many states haven't done so. Nevertheless, inflated voter rolls are a separate problem, which can be addressed by funding and implementing HAVA. To justify ID requirements, advocates need to provide evidence of voter fraud.
The obsession with voter fraud has been orchestrated by the Republican Party, with Karl Rove playing a significant role. The US Attorney firings scandal under Alberto Gonzales seems to have stemmed, in part, from Republicans' desire to push federal prosecutors into going after voters' rights and poor people's groups like ACORN for their turn-out-the-vote activities. In Wisconsin, voter fraud prosecutions netted convictions of a number of small-fish activists who mishandled registration cards and individual voters who filled out two registration cards or attempted to vote despite being convicted felons or on criminal probation. Prosecutors have lost more than half the cases they've brought. In Washington, where Democrat Christine Gregoire narrowly defeated Dino Rossi for governor in 2004, officials of the Justice Department removed US Attorney John McKay, who refused to bring voter fraud charges tied to the election.
Lacking evidence, the Republicans have shifted their argument. Now it runs: "legitimate voters" will lose confidence in elections if they think there's voter fraud, so the government must clamp down even without evidence. Unfortunately, there are signs that the Supreme Court has bought this New Age-y "voter feelings" argument. In early 2006, voters' rights groups challenged the Arizona law requiring proof of citizenship. The Ninth Circuit enjoined the law pending a full trial; the state appealed to the US Supreme Court, which allowed the law to take effect without a trial. Some voters "who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised," the Court reasoned in an unsigned opinion. The case is awaiting a full trial. A study has shown that some 5,000 voter registrations in Arizona, virtually all for eligible voters, were rejected in a six-month period for failure to provide proof of citizenship.
Folklore pervades the history of voter fraud in the United States. During the era of "live voice" voting, when voters shouted their choices in front of their neighbors, there was rampant bribery, intimidation, miscounting and voter impersonation. Roving gangs of ringers, plied with whiskey and $2 bills, voted in multiple locations under false names.
During the Gilded Age and the Progressive era, as Alex Keyssar documents in his monumental study The Right to Vote: The Contested History of Democracy in the United States, the idea of the fraudulent voter coincided with social anxiety among the "better sort" about the political influence of the uneducated and recent immigrants. Whether or not they were legally entitled to vote, their votes were seen almost as fraudulent per se. In the turn-of-the-century South, voter restriction was a keystone of the burgeoning segregated system. "Voter fraud" meant votes cast by black and poor white voters. In the West, fraud meant voting by Native Americans.
The current restriction movement preys on a new wave of immigration anxiety. In his 2004 book Stealing Elections, John Fund, now an editorialist for the Wall Street Journal, warned dramatically that "at least eight of the nineteen hijackers who attacked the World Trade Center and the Pentagon were actually able to register to vote in either Virginia or Florida while they made their deadly preparations for 9/11." (Fund told me that the information came from an interview with Michael Chertoff, now Secretary of Homeland Security, while he was a Justice Department official. Fund suggested that Chertoff's statement may have come from secret information. Two academics--Spencer Overton of George Washington University and Lorraine Minnite of Barnard--have been unable to confirm the "registered hijacker" claim with election officials.)