Voter ID laws a solution in search of a nonexistent problem

After Republicans scored major victories in state legislative elections across the country in 2010, they embarked on an ambitious legislative agenda on a whole host of issues. One of the most prominent agenda items in state after state has been the adopting of new laws requiring voters to present some form of identification at the polls before being allowed to vote.

Opponents argue that these laws tend to discriminate against older and minority voters, some of whom may not have the types of identification required by the law, may no longer have access to the documents such as birth records that would allow them to obtain such identification, or may not have the resources to get that identification because of difficulties that some states have placed on obtaining identification. Proponents of these laws, on the other hand, maintain that they are necessary to prevent voter fraud, presumably in the form of people showing up at the polls claiming to be someone that they are not. This is really the only form of voter fraud that requiring identification at the polls could possibly combat.

It is, admittedly, a compelling argument. After all, people should not be permitted to impersonate someone at the polls. However, it has never been clear just how much of a problem this form of voter fraud actually is. Proponents would lead one to believe that it is a major problem that threatens the integrity of our electoral system, thus requiring strict identification requirements. Opponents, on the other hand, have long contended that Republicans have long overstated both the frequency and risk of in-person voter fraud and that, when balanced against the difficulties it presents for those negatively impacted by the laws, it is at best a minor problem.

This week, Loyola University Law School Professor Justin Levitt reported on the results of a comprehensive study which concluded that in-person voter impersonation is an incredibly rare occurrence:

I’ve been tracking allegations of fraud for years now, including the fraud ID laws are designed to stop. In 2008, when the Supreme Court weighed in on voter ID, I looked at every single allegation put before the Court. And since then, I’ve been following reports wherever they crop up.

To be clear, I’m not just talking about prosecutions. I track any specific, credible allegation that someone may have pretended to be someone else at the polls, in any way that an ID law could fix.

So far, I’ve found about 31 different incidents (some of which involve multiple ballots) since 2000, anywhere in the country….

To put this in perspective, the 31 incidents below come in the context of general, primary, special, and municipal elections from 2000 through 2014. In general and primary elections alone, more than 1 billion ballots were cast in that period.

Some of these 31 incidents have been thoroughly investigated (including some prosecutions). But many have not. Based on how other claims have turned out, I’d bet that some of the 31 will end up debunked: a problem with matching people from one big computer list to another, or a data entry error, or confusion between two different people with the same name, or someone signing in on the wrong line of a pollbook.

In just four states that have held just a few elections under the harshest ID laws, more than 3,000 votes (in general elections alone) have reportedly been affirmatively rejected for lack of ID. (That doesn’t include voters without ID who didn’t show up, or recordkeeping mistakes by officials.) Some of those 3,000 may have been fraudulent ballots. But how many legitimate voters have already been turned away?

Professor Levitt lists each of the incidents that he uncovered in the article, and while none of them should be dismissed it’s worth noting that we’re talking about 31 apparently fraudulent ballots cast out of roughly one billion. That amounts to 0.0000031 percent of the total votes cast over the time period that Levitt studied and it amounts to a quite obviously infinitesimal amount of the total ballots cast. Again, that doesn’t dismiss the fact that the incidents he uncovered were in fact crimes and that the people involved in them ought to be appropriately prosecuted. What it does suggest, though, is that the argument that voter ID laws are necessary because of some widespread problem is simply not true, and that more weight ought to be given to the arguments of those who point out the difficulties that voter ID laws create for certain classes of voters, most often the poor, minorities, and the elderly.

That is exactly what happened earlier this year in Wisconsin. In April, a federal Judge struck down that state’s voter ID law, relying to a large degree on the fact that the evidence presented by the state showed that voter impersonation was virtually nonexistent in the state. At the same time, though, the judge found that the law placed significant burdens on the ability of poor and minority voters to vote, both because of the difficulty and expense involved in obtaining the proper identification and because there was at least some evidence that the law was as much motivated by the desire to make it harder for certain groups of people to vote as it was by a desire to protect the integrity of the electoral process. That case is currently under appeal, but the factual findings that the judge made at trial regarding the rarity of in-person voter fraud and the burdens placed on certain voters by these laws are not likely to be overturned, and will make it hard for the decision to be overturned.

This doesn’t mean that all voter identification laws are unconstitutional, nor does it mean that there is something inherently wrong with the laws themselves. What it does suggest from a legal point of view, though, is that voter ID laws that make it difficult for certain classes of people to obtain identification, and thereby make it more difficult for them to vote, should be viewed skeptically by judges. The easiest way to deal with this problem, of course, would be to make obtaining the identification as easy as possible in terms of where voters must go to obtain such identification, what documents they need to present in order to obtain it, and how much the entire process ends of costing them. In fact, an argument can be made that voters should not be required to pay anything at all to obtain the identification necessary for them to exercise one of their most fundamental legal rights. Additionally, the laws ought to be drafted in a way that would not unduly punish people who aren’t able to obtain proper identification by having their votes automatically voided. The fact that an elderly gentleman doesn’t have enough documents to satisfy the voter ID requirements despite the fact that he’s voted in every election he’s been able to, for example, shouldn’t be grounds for disallowing him his right to vote in the future. If the law can’t be written to deal with problems like this in a fair manner, then I’m not sure they should be able to withstand a court challenge.

From a political point of view, the fact that there is little actual evidence of in-person voter fraud, and plenty of evidence that voter ID laws can make it harder for poor, minority, and elderly voters to exercise their right to vote, is a very strong argument for the idea that these laws are not nearly as necessary as the Republicans that have advocated them contend they are. Even if you can make the case that the laws are not per se wrong, and I tend to believe that as a general concept requiring people to prove who they are before they vote is a a good idea, the fact that voter impersonation is so rare as to be virtually nonexistent suggests strongly that this is not an issue that needs to be prioritized right now. Sen. Rand Paul (R) of Kentucky made a similar point back in May when it warned his fellow Republicans that they are risking offending minority groups and other voters by placing so much emphasis on voter ID laws.

None of this is to argue that there may not be election fraud occurring. For better or worse, such things have been a part of politics since the beginning of time. However, as Levitt notes, voter ID laws do absolutely nothing to stop the most common types of election fraud:

Election fraud happens. But ID laws are not aimed at the fraud you’ll actually hear about. Most current ID laws (Wisconsin is a rare exception) aren’t designed to stop fraud with absentee ballots (indeed, laws requiring ID at the polls push more people into the absentee system, where there are plenty of real dangers). Or vote buying. Or coercion. Or fake registration forms. Or voting from the wrong address. Or ballot box stuffing by officials in on the scam. In the 243-page document that Mississippi State Sen. Chris McDaniel filed on Monday with evidence of allegedly illegal votes in the Mississippi Republican primary, there were no allegations of the kind of fraud that ID can stop.

Instead, requirements to show ID at the polls are designed for pretty much one thing: people showing up at the polls pretending to be somebody else in order to each cast one incremental fake ballot. This is a slow, clunky way to steal an election. Which is why it rarely happens.

And the fact that it rarely happens suggests strongly that these laws are far less necessary than their advocates have claimed that they are.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.