The Legitimacy of Elections and Voter ID Laws

As we approach the 2016 elections - after a Democratic Party primary season now thought to have :

been - um - manipulated. See here

On July 22, 2016 WikiLeaks released around 20,000 emails apparently from top DNC officials, illustrating that Democratic officials favored Hillary Clinton over Bernie Sanders. The email release, only days away from the Democratic Primary, shed light into potential election fraud (the DNC hasn’t confirmed the accuracy of the email release) and questions regarding how Clinton won the presumptive Democratic nomination.

Or here.

Of course, these allegations are mostly from frustrated Sander supporters who now feel the burn that their votes did not count because of various types of putative fraud.

A timely topic, even from a national security point of view, because one of the potential effects such fraud in the voting process may have on how people view the legitimacy of their government - if they decide it was not really elected at all, but imposed on them by powers beyond their control, they may not support it.

And this doesn't even begin to touch the conspiracy theories that hold the recent Wikileaks revelations were some sort of Russian plot to favor Mr. Trump over Hilary - see Hillary Clinton campaign blames leaked DNC emails about Sanders on Russia, a theory which seems to suggest, as some would have it, that the real corruption was the revealing of the corruption and not the primary corruption itself, if you follow me.

Well, now, there comes before us the challenges to voter identification laws - as now represented by the 20 July 2016 Fifth Circuit Court of Appeals case Veasey v. Abbott specifically Texas Senate Bill 14:

In 2011, Texas (“the State”) passed Senate Bill 14 (“SB 14”), which requires individuals to present one of several forms of photo identification in order to vote.
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Plaintiffs claim that SB 14’s photo identification requirements violate the Fourteenth and Fifteenth Amendments to the United States Constitution and Section 2 of the Voting Rights Act because SB 14 was enacted with a racially discriminatory purpose and has a racially discriminatory effect.
Plaintiffs also claim that SB 14’s photo ID requirement places a substantial burden on the fundamental right to vote under the First and Fourteenth Amendments, and constitutes a poll tax under the Fourteenth and Twenty-Fourth Amendments. The State defends SB 14 as a constitutional requirement imposed to prevent in-person voter fraud and increase voter confidence and turnout.
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The State’s stated purpose in passing SB 14 centered on protection of the sanctity of voting, avoiding voter fraud, and promoting public confidence in the voting process. No one questions the legitimacy of these concerns as motives. The disagreement centers on whether SB 14 was passed with impermissible motives as well.
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Impermissible motives apparently including discrimination against protected classes by denying the right to vote to people for whom the burden of providing one of the various permitted forms of voter ID is too heavy and would exclude "disfavored" groups of people from participating in the election process.

There's much better analysis of the current state of voter ID laws in Richard A. Epstein's Are Voter ID Laws Racist?

There are few things as controversial in American political life as voting rights. The issue surged to the fore this past week in Veasey v. Abbott when the Fifth Circuit, by a 9-6 vote, delayed the enforcement of Texas Law SB 14. This law limited the forms of photo identification that could be used when registering to vote to state driver’s licenses, U.S. passports, military photo IDs, concealed weapon permits, and U.S citizenship certificates with photographs. Although the law provided for some exceptions for poor and disabled persons, it has been attacked as the most restrictive voting rights law in the United States.
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The issue of the constitutionality of photo IDs arose in 2008 in Crawford v. Marion County Election Board, where the Supreme Court, by a 6-3 vote, upheld an Indiana ID law that required voters to show either state or federal picture ID by denying that such a requirement unduly infringed on anyone’s right to vote. The Court only looked at the constitutional challenge and did not consider the 1982 Voting Rights Amendments, presumably because none of the parties thought it could support a claim. Instead, Justice Stevens wrote that the law was neutral on its face, and had a permissible justification of preventing voter fraud that could upset the results of individual elections and undermine public confidence in the electoral process.

One way to look at Crawford is that preventing voter fraud is important enough to justify the small burden on individual citizens of showing photo ID—a burden no greater than that faced for getting on an airplane. The record makes this view attractive. In Texas, the required IDs were held by over 95% of the population, but among the registered voters, “Hispanic and Black voters were respectively 195% and 305% more likely than their Anglo peers to lack SB 14 ID.” No one claimed this differential rate of registration was attributable to any form of state discrimination. Texas did not charge for the required ID, though there was evidence in the record that some individual plaintiffs had difficulty in navigating the system. It was also agreed that the Texas law passed in 2011 only after tremendous political struggle on a straight party-line vote, which reflected the dominance of Republicans in both houses of the Texas legislature.

There is little question that the Fifth Circuit could have easily dismissed the entire case by a respectful citation to Crawford. But instead, it took out the heavy artillery to upend the Texas statute. If Veasey survives, it will be exceedingly difficult for any photo ID law to pass muster in the United States, at least in the absence of heavily documented instances of fraud, and perhaps not even then.
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The decision in Veasey is a careless condemnation of the current system on racist grounds. It may well be that the Texas system is far from ideal, and it would be foolish for any outsider to be overconfident that the ideal set of precautions has been adopted in this case. But based on the weak evidence presented here, it is surely a mistake for a majority of the Fifth Circuit to block the law within months of a presidential election. The Supreme Court should stay Veasey and review the outcome in light of its own now denigrated decision in Crawfold. The odds are 4-4 that this will not happen.

You should read the whole 203 page decision to understand how the Fifth Circuit balanced the risk of voter fraud against that of "voter suppression."

Apparently it decided that it may be necessary to destroy fair elections (no fraud) to insure fair elections (no suppression). Or something.

UPDATE: Part of one of the dissents is priceless: From page 102 -

No one doubts our unwavering duty to enforce antidiscrimination law. But in this media-driven and hyperbolic era, the discharge of that duty requires the courage to distinguish between invidious motivation and shadows. The ill-conceived, misguided, and unsupported majority opinion shuns discernment. Because of definitive Supreme Court authority, no comparable federal court precedent in over forty years has found a state legislative act motivated by purposeful racial discrimination. Even more telling, the multithousand page record yields not a trace, much less a legitimate inference, of racial bias by the Texas Legislature. Indeed, why would a racially biased legislature have provided for a cost-free election ID card to assist poor registered voters—of all races—who might not have drivers’ licenses? Yet the majority emulates the clever capacity of Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the “truth.”

UPDATE2: NC Voter ID law struck down, too.

The Voter ID Debate Part 2

As set out in a previous post here, the local Federalist Society hosted a discussion of the pending North Carolina voter I.D. law which is an attempt to make sure the person in the voting booth is who they say they are.

I attended the sometime testy discussion, as did Barry Smith, a reporter for Carolina Journal Online (CJO), who filed an report of the event, "Voter ID Under Microscope At Raleigh Forum"

Who is in that voting booth?

Is adopting a law requiring photo identification for North Carolinians to vote a common sense solution to voter fraud that has become – unnecessarily – highly politicized?

Or is it an effort that would put an undue burden on North Carolinian's’ right to vote, a burden that would disproportionately affect the poor and minorities?

Both views were put forth Wednesday during a panel discussion on voter ID sponsored by the Raleigh Lawyers Chapter of the Federalist Society.

Two proponents of voter ID laws – John Fund and Hans von Spakovsky – took the position that such laws protect the integrity of the ballot and do not pose an undue burden on a citizen’s right to vote.

Two opponents of such laws – Bob Hall and Allison Riggs – disagreed, questioning the need for such a law and arguing that it, along with other changes to voting laws, would make voting less accessible.

Von Spakovsky and Fund argued facts, often referring to the situation following Georgia's passage and implementation of a voter ID law (minority participation up in subsequent years) and questioning the assertions of Hall and Riggs that the law would exclude certain classes of people.

As mentioned in the CJO piece, Hall went on a little trip down memory lane back to the bad old days of the 1960's (I think) when the exclusion of black voters at the hands of the majority Democratic Party affiliated local governments was a disgrace. 50 years later- well, Mr. Hall's best argument was that most voting fraud occurs in absentee balloting and that he was unclear on how a voter ID law would change that. That is a very good question.

Ms. Riggs disputed some of the statistics cited by Fund and von Spakovsky and kept arguing that a law that required citizens to have to travel up to 90 miles round trip to the place to get a valid voter ID was unduly burdensome on the poor and etc.

All of which prompted me to wonder why the organizations fighting voter ID so hard are not out there spending money and time to make sure each voter living so far from his or her local elections office is not provided with transportation and assistance to get the documents needed to get a voter ID (like birth certificate, for example).

Mr. Hall suggested at one point some sort of polling are "affidavit" in lieu of voter ID in which a person would swear under oath they are who they say they are. Now, let's see, I come into vote fraudulently in the name of a dead person (for example) - and then, falsely swear that I am that dead person so that I can vote. How on earth are we going to track down who was that person committing the fraud? Seems like a bad idea to me.

Mr. Fund suggested that mandating voter ID was actually doing a "favor" those who currently lack a photo ID since it could open up the world of travel, access to government buildings, bank accounts and government services that require such an ID. I kept wondering how a plaintiff who lacked an ID could get into a federal courthouse for a hearing since all courthouses now seem to require a photo ID (as do most state courthouse, too) which may explain why such plaintiffs are hard to find.

It all continues to point out the difficult balancing act between the state's power to set the rules on voting (there is no federal voting "right")to insure voting integrity (one living person, one vote, one time per election) and insuring that all eligible voters can cast votes.

Ms. Riggs used the term "cost-benefit" during her time in favor of fewer controls (as in "too little fraud to justify this "high cost" effort to mandate IDs") - which was countered by a member of the audience suggesting that the countering of legitimate votes by fraudulent votes was also destructive to the "right to vote."

John Fund and Hans von Spakovsky have a book on voting issues Who's Counting?: How Fraudsters and Bureaucrats Put Your Vote at Risk.

The Voter ID Debate

In a couple of days the local Federalist Society is hosting a lunch time panel on "The Impact of Voter ID in North Carolina."

Speakers:

Hans von Spakovsky, Senior Legal Fellow/Manager, Civil Justice Reform Initiative, The Heritage Foundation
Bob Hall, Executive Director, Democracy North Carolina
Allison Riggs, Staff Attorney, Voting Rights, Southern Coalition for Social Justice
John Fund, National Affairs Columnist, National Review

Democracy North Carolina is one of those "impartial" entities that doesn't seem to have a good handle on what either "nonpartisan" or "impartial" means. By way of example, here's a "Voter ID Fact Sheet" that they have on their website:

DNC Why Oppose Photo ID for Voters by

Now, lets just do a little fact check - read the part under the section title "Hidden Costs." Yes, the very first sentence reads:

Even if voters who currently lack ID were given free ID, they still have to pay for the legal documents needed to get ID, such as a birth certificate or social security card. (emphasis added)

Say, just how much did you pay for your Social Security card?

Last time I checked, those things were free.

Gratis.

A gift from the the American people to me and to you.

So, now, here's a question we lawyers always hope to ask of the other side, "Well, now, Mr. DNC, if you got this major fact wrong on your little "fact sheet" why should we trust the rest of your stuff?"

Southern Coalition for Social Justice also opposes Voter ID's,

We strive to link claims for minority representation with claims for fuller participation by all citizens. For example, voter ID requirements hinder effective participation by numerous groups, including the elderly and persons with disabilities.

How exactly do voter ID requirements do that?

I really want to know.

I will be attending this event.

I'll let you know if my questions get answered.

Oh, and that goofy "driver's license" at the top? One of the accepted forms of identification needed to use the UNC - Chapel Hill Health Services Library.

One more thing. Wait until these folks face the direct deposit mandate and need a photo id to start a bank account.