Election Law, Politics

Battling Anecdotes With Symbols: Why The Voter ID Debate Goes Nowhere

What types of election crimes do voter ID laws prevent, and what burdens and harms do they cause?

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The Wisconsin Supreme Court recently issued two rulings upholding 2011 Wisconsin Act 23, a state law requiring voters to present photo identification at polling places. The court ruled that mandating ID does not place a substantial burden on voters, nor does it create an unreasonable regulation on elections. The Seventh Circuit is still considering a challenge to the same law, however. In April, Judge Lynn Adelman of the U.S. District Court for the Eastern District of Wisconsin ruled that the law unduly burdens some voters, particularly low-income ones, and violates the Voting Rights Act. This week, Wisconsin Attorney General J.B. Van Hollen filed motion to lift the injunction created by Judge Adelman’s earlier ruling.

Wisconsin’s court battles reflect the nationwide debate about voter ID laws. Proponents of the laws argue that abuse is rampant, ID laws make a clear statement that corruption is intolerable, and requiring photo identification is a minimal burden.

Opponents of voter ID laws contend that voter fraud is rare, but voter suppression is likely. At the Washington Post, Justin Levitt argues that his extensive, nationwide research of election fraud reveals only 31 incidents since 2000. Levitt points out that more than 1 billion ballots have been cast in that time. Allegations of voter intimidation or suppression are common, though what counts as a criminal offense or civil rights violation may be hard to define. Physical threats obviously count. Jim Crow’s shameful legacy of literacy tests and poll taxes obviously do. Willful disinformation campaigns do. Whether insisting on photo identification, which may be more difficult for people in some communities to provide, counts as voter suppression is a much closer call.

Both sides offer up horror stories. True the Vote trumpets allegations of misconduct on one side, while the NAACP insists that election officials continue to suppress minority votes on the other. Mostly the discourse drops to the level of anecdote. Too often, the deciding factor reduces to which seems more plausible to you personally — that people who shouldn’t vote do, or that people who should don’t?

Where does the conversation go from there?

One major failing in the debate about election fraud and appropriate ways to combat it is the common failure to distinguish among types of election crimes. A bipartisan 2006 report by the U.S. Election Assistance Commission aimed to develop working definitions of “voting fraud” and “voter intimidation,” because there is so little consensus on the terms. Clarity about the types of voter fraud we’re talking about matters when debating the merits of possible solutions, but it’s hard to come by.

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Voter fraud takes as many forms as there are people who want to rig elections . . . which is to say, a whole lot. Impersonation fraud, perhaps the blunt instrument of voter fraud, involves a person appearing at a polling place, claiming to be another person, and casting a vote. Voting in the name of a dead person whose name remains on the registration list is one method, though it need not even be that clever. Some ballot stuffing simply involves voting in the name of an eligible voter who did not show up at the polls for a particular election. Similarly, registration fraud includes forging voter registration cards in the name of actual eligible voters, as well as registering fictional persons as voters.

Submitting absentee ballots with forged or fictitious information is another means of impersonation, though it presents a different set of concerns. According to the 2006 report by the USEAC, absentee ballot fraud may pose the greatest threat to the integrity of U.S. elections. It’s much easier than other forms of fraud and, according to the EAC, it is the area of voting subject to the largest proportion of fraudulent acts.

Voter suppression tactics include spreading disinformation such as lies about locations of polling places, phone jamming, voter caging, and manipulated purging of voter rolls. Allen Raymond, a former GOP consultant, served time in federal prison for his role in clogging the phone lines of Democrats in the 2002 New Hampshire election. Disgraced and alienated from the GOP, Raymond details a variety of ways to rig an election in his (helpfully titled!) book How to Rig an Election (affiliate link). And, of course, there are a slew of tactics, prohibited by the Voting Rights Act, like gerrymandering voting districts to dilute votes from some groups.

So, what types of election crimes do voter ID laws prevent? What burdens and harms do they cause?

Voter ID laws don’t address the most pernicious forms of election fraud. Requiring photo identification at polling places won’t prevent abuse of absentee ballots. It won’t prevent the shenanigans of folks like Allen Raymond. It will reduce the incidence of face-to-face impersonation offenses. Justin Levitt, in his WaPo piece, correctly points out the myriad of election crimes that voter ID laws do nothing to combat.

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That doesn’t make voter ID laws worthless, though. A small reduction in fraud isn’t a bad thing. It’s just a small good thing.

On the other hand, critics of voter ID laws argue that the requirements are motivated by the intent to discriminate against racial and ethnic minorities and the poor. Critics claim that Republicans support ID laws because people in poor, immigrant, and minority communities are less likely to have government-issued identification . . . and are more likely to vote for Democratic candidates. Proving this sort of legislative discriminatory intent is tricky, though. (Attempts to do so may amount to little more than some evidence that legislators who had supported voter ID laws were more likely to respond to inquiries from faux voters named “Jacob Smith” than to “Santiago Rodriguez.”)

At the bottom of the criticisms, an important question remains: how unreasonable is it for voters, even those with limited means, to obtain photo identification? In an age when so many routine daily tasks require a driver’s license or its equivalent, asking for ID at the polls just doesn’t seem that onerous to many Americans, myself included.

Functionally, the benefit of these laws may be minimal. Likewise, the burdens look slight. Much of the fervor on each side is grounded more in symbolic value than in practical effect. For opponents of voter ID laws, the laws symbolize historic efforts to intimidate and disenfranchise vulnerable populations. For proponents, voter ID laws symbolize a strong stance against corruption. In a nationwide discussion where horror stories act as evidence and confusion abounds, both sides battle opposing anecdotes with opposing symbols. That makes for riveting political theatre, but lousy debate.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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