Curious whether new restrictive state voting laws requiring photo ID will damage the credibility of this year’s election outcome, I sent email queries over the past week to several conservative analysts.
I found their responses illuminating.
Amy Kaufman, director of congressional relations at the Hudson Institute, wrote that “while there are changes to many states’ registration programs, these will not be an impediment to the victor.” She argued that Florida is
attempting to reduce voter fraud by purging possible noncitizens. Those people have the right to be readmitted by proving citizenship. It appears that over 500 of the roughly 2500 on that list have come forward to show documentation.
A colleague of Kaufman’s at the Hudson Institute, Michael Horowitz, was more outspoken, declaring that “requiring some form of identification of voters seems to me not merely reasonable but long overdue.”
In Horowitz’s view, the “accusatory rhetoric” of Attorney General Eric Holder “about the alleged racism of those who support the I.D. reforms — unspeakable because he’s the Attorney General of the United States, not someone running for mayor of the District of Columbia — merits condemnation from progressives, not a threat that Republicans will lack political legitimacy.”
George Weigel, William E. Simon Chair in Catholic Studies at the Ethics and Public Policy Center, wrote:
If you can’t buy beer at the ballpark without valid ID, or withdraw money from your savings account without valid ID, or get on a plane without valid ID, or pick up a medical prescription without a valid ID, you shouldn’t be admitted to a voting booth without valid ID. Enough Chicago-graveyard-voting jokes are enough.
The debate over voter ID laws has the potential to shape public perception of the fairness of the 2012 election.
The most volatile combination of events on Nov. 6 would be a very close election in which Mitt Romney wins the electoral vote with knife-edge victories in states like Florida, Pennsylvania or Wisconsin. If new voter ID laws survive legal challenges in those Republican-controlled battleground states, a marginal Romney victory would powerfully reinforce the belief on the left that some lawfully registered voters were denied the right to exercise their franchise.
Conversely, if local and federal challenges to voter ID laws are successful, and Obama wins a tight re-election race, the belief on the right that felons and illegal immigrants cast crucial ballots will be reinforced.
In both 2000 and 2004, we hardly need reminding, the vote in the Electoral College was so close, 271-266 and 286-251 respectively, that a shift in just one state would have produced a different winner.
Richard L. Hasen, an election law expert and critic of voter identification laws who is a professor of law and political science at the University of California, Irvine, wrote in the Fort Worth Star Telegram that:
Republican claims of a serious problem with voter impersonation are bogus. Many Republican legislators and political operatives support voter ID laws for two purposes: first, to depress Democratic turnout, and second to gin up the Republican base. But Democrats and those on the left sometimes inflate the potential negative effect of voter identification and other laws on voter turnout, especially among poor and minority voters. Just as Republicans use the scare of voter ID laws as a wedge issue to boost Republican turnout, Democrats use the scare of voter suppression to boost Democratic turnout.
Hasen acknowledged that in certain circumstances the impact of tough voter ID laws can be consequential:
Even if the effects of voter ID are small, they can still matter in razor-thin elections. Perhaps voter ID laws deter about 1 percent of voters from voting (and more who forget their IDs and don’t return to vote again — a real concern for Democrats about low-motivation voters). One percent may not seem like much, but we have had enough razor-thin elections in recent years that some elections could well turn on such a small effect.
The riskiness of the Republican strategy in enacting restrictive election laws suggests that the party has reached an internal consensus that it must, in fact, tilt the playing field in order to win. Recently passed legislation making it more difficult either to cast ballots or to register voters was limited almost entirely to states with Republican legislatures and governors – for example, Florida, Wisconsin and Pennsylvania. It was made possible by Republican victories in 2010 that followed the elections of 2006 and 2008 when the Democratic coalition appeared to be on the verge of gaining majority status.
Charlie Crist, former Republican governor of Florida and now an independent, recently criticized voting laws enacted by Republican leaders in his own state. These “machinations make a mockery of the democracy we put on display every Election Day. The right to vote is the key to that democracy, giving value to the freedom of speech and making the freedom of religion and the right to assemble possible,” Crist wrote in the Washington Post.
Cynical efforts at voter suppression are driven by an un-American desire to exclude as many people and silence as many voices as possible. Our country has never solved anything with less democracy, and we’re far better off when more citizens can access the polls — no matter which party mobilizes the most voters to them.
On March 14, Pennsylvania Governor Tom Corbett signed into law legislation requiring all voters to have a photo ID. Under this legislation, voters going to the polls without a photo ID, including indigent voters unable to pay necessary fees to get an ID, will be allowed to cast “provisional” ballots. If you are one of these voters, you will then “have six days to provide your photo ID and/or an affirmation to your county elections office to have your ballot count,” according to the Pennsylvania Department of State.
“I am signing this bill because it protects a sacred principle, one shared by every citizen of this nation. That principle is: one person, one vote,’’ Corbett declared. “It sets a simple and clear standard to protect the integrity of our elections.”
Republican State Representative Daryl Metcalfe, the bill’s sponsor, said on the state House floor: “I believe every single individual has a right to have their vote counted and if any individual vote is being canceled out by a fraudulently cast vote, that is one too many.”
A legal challenge to the law, currently before the Commonwealth Court of Pennsylvania, has, however, raised questions about the legitimacy of justifications for voter fraud legislation. On July 12, attorneys defending the law on behalf of the state and the Corbett administration stipulated the following:
The Parties are not aware of in-person voter fraud in Pennsylvania and do not have direct personal knowledge of in-person voter fraud elsewhere. Respondents will not offer any evidence in this action that in-person voter fraud has in fact occurred in Pennsylvania or elsewhere.
And that:
Respondents will not offer any evidence that in-person voter fraud is likely to occur in November 2012 in the absence of the Photo ID law.
In other words, the state cannot and will not produce any evidence of the kind of voter fraud the legislation has supposedly been crafted to prevent.
Even if the government concedes that there is no evidence of fraud, there is an additional argument that the perception that voting fraud is possible “leads citizens to disengage from the democracy” and thus legitimates preventive measures. Stephen Ansolabehere, a Harvard political scientist, and Nathaniel Persily of Columbia Law School counter that argument in a Harvard Law Review article, “Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements,” which contends that the costs of such laws outweigh the benefits:
The use of photo identification requirements bears little correlation to the public’s beliefs about the incidence of fraud. The possible relation of such beliefs to participation appears even more tenuous. This lack of empirical support leads us to conclude that, at least in the context of current American election practices and procedures, public perceptions do not provide a firm justification for voter identification laws.
“There is fraud and there is some voter impersonation fraud, but you’re trying to kill a fly with a bazooka with these kinds of laws,” Persily told ABC News. “There’s a lot of collateral damage.”
This “collateral damage” threatens the legitimacy of the election results in 2012, and with that, the ability of the winners to build public support for their governing agenda. This would be especially true of the Republican agenda calling for a major retrenchment of the welfare state and additional tax cuts tilted toward the affluent.
The restrictive state election laws passed in 14 states after the Republican victories of 2010 reflect the broader struggle for power in an evenly balanced but highly polarized country.
Battles over voting rights are just one indicator of the intensity of the partisan contest, the force of which is highlighted by the rhetoric on Capitol Hill.
Nancy Pelosi, the House Democratic Leader, views new voter laws as part of an aggressive Republican drive for power. At a press conference on June 21, Pelosi placed Republican leaders’ endorsement of contempt charges against Attorney General Eric Holder in this context:
It is no accident. It is no coincidence that the Attorney General of the United States, the person responsible for making sure that voter suppression does not happen in our country, that issues that relate to the civil liberties of the American people are upheld. These very same people who are holding him in contempt are part of a nationwide scheme to suppress the vote. They are closely allied with those who are suffocating the system, unlimited special interest secret money, and they are poisoning the debate.
Holder’s challenge to recently enacted laws restricting access to the polls has become a flashpoint for both Democrats and Republicans. Steve King, Republican of Iowa, on June 4 denounced the Attorney General after the Justice Department questioned an ongoing purge of voter rolls in Florida:
The Department of Justice is aiding in illegal immigrants being allowed to vote and prohibiting the state of Florida from enforcing the law. This is another example of how Eric Holder and the Obama administration politically calculate and abuse the power of the Justice Department in a way I have not seen in my time in Congress. In their minds, illegal immigrants are undocumented Democrats. What we’re getting from the Justice Department is anything but justice.
Almost a half century after the enactment of the Voting Rights Act in 1965, the question of who votes will not be resolved on the merits. The courts will address the dispute, and their rulings will matter. But the struggle over this fundamental citizenship right is intensely partisan and explicitly political. It can only be resolved at the ballot box.
Thomas B. Edsall, a professor of journalism at Columbia University, is the author of the book “The Age of Austerity: How Scarcity Will Remake American Politics,” which was published earlier this year.