In the realm of campaign finance, the Supreme Court has said that “[o]f almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions.” Defenders of campaign finance reforms often point to news reports, testimony, and public opinion polls suggesting that people view campaign contributors as having undue influence over government policy to buttress their claim that stricter campaign finance regulations are necessary.
Advocates for stricter voter-ID requirements present an analogous argument: the need to preserve public confidence in elections justifies voter-ID laws. Or, as noted in a 2011 article published by The Heritage Foundation, “requiring voters to authenticate their identity is necessary to protect the integrity of elections and access to the voting process.”
In the abstract, the argument underpinning voter-ID laws is compelling. Few would prefer a state of affairs in which people see government as corrupt or elections as rigged. It is difficult to quibble with the democratic value of such feelings of legitimacy.
But there is a reason why the debate over voter-ID laws is highly partisan. There is a reason why every state that has passed strict voter-ID laws has done so under a Republican-controlled legislature, with Democratic legislators uniformly opposed (with the exception of Arizona, which held a voter initiative). Voter-ID is not about protecting the “integrity of elections” or “access to the voting process.” Voter-ID is about voter suppression; specifically, these laws are aimed at negatively and disproportionately affecting the ability of traditionally Democratic-voting demographics to cast a ballot.
The Texas voter-ID law provides an illustrative case study.
Texas’ voter-ID measure was recently put to the test during last Tuesday’s elections. Earlier this year, the U.S. Supreme Court ruled that parts of the Voting Rights Act were unconstitutional, paving the way for states like Texas to implement stricter voting requirements. The new Texas law, which was approved by Texas’ Republican-controlled legislature two years ago but was shelved after a three-judge panel declared it discriminatory, requires voters to show a valid photo ID with a name that matches the name on the voting rolls.
Texas Governor Rick Perry stoked fears of election fraud to mobilize Texas Republicans to coalesce around voter-ID. “I think any person who does not want to see fraud believes in having good, open honest elections,” the former Republican presidential candidate told CBS News in 2012. “Transparent. One of the ways to do that, one of the best ways to do that, is to have an identification, photo identification so that you prove who you are and you keep those elections fraud-free.”
Statements like these resonate with the core American identity. But the trouble with voter-ID laws, like the one passed in Texas, is that they are solutions in search of a problem. It cannot be emphasized enough that voter-ID laws are effective only in preventing a specific type of “voter fraud” – that is, they are only effective in preventing individuals from impersonating other voters at the polls. And while this type of voter fraud certainly does exist, large-scale voter fraud of this type is virtually non-existent.
In Texas, for example, there has been only one (repeat: one) successful conviction for voter impersonation since 2000, according to the comprehensive News21 database. And nationwide, minimal scrutiny of alleged “voter fraud” reveals this salient fact: allegations of widespread “voter fraud” are greatly exaggerated. From Justin Levitt of the New York University Law School:
Many of the claims of voter fraud amount to a great deal of smoke without much fire . . . Most allegations of fraud turn out to be baseless – and that of the few allegations remaining, most reveal election irregularities and other forms of election misconduct, rather than fraud by individual voters. The type of individual fraud supposedly targeted by recent legislative efforts – especially efforts to require certain forms of voter ID – simply does not exist.
Levitt’s conclusion reflects an important point about semantics and the general lack of clarity surrounding the charge of “voter fraud” itself, something proponents of voter-ID have exploited to their advantage. As Levitt later notes, “voter fraud” is fraud by voters. More precisely, however, “voter fraud occurs when individuals cast ballots despite knowing that they are ineligible to vote,” such as the illegal casting of votes by non-citizens, the casting of more than one ballot by a voter, or the attempt of one voter to vote using the name of another.
Supporters of voter-ID laws, however, almost never define the term and often conflate it, intentionally or unintentionally, with other forms of election misconduct or irregularities. Problems with the election administration system – in the form of technological glitches (whether sinister or benign), honest mistakes by election officials or voters, or fraud or intentional misconduct perpetrated by actors other than individual voters – are often improperly lumped under the umbrella of “voter fraud.”
This rhetorical sloppiness fuels the publics misperception about “voter fraud,” and partially explains why, despite the fact that in-person voter fraud is “more rare than death by lightning,” approximately 42 percent of Americans still believe that voter fraud is “common” or “somewhat common” in “typical” U.S. elections. When every election problem is attributed to “voter fraud,” it appears that fraud by voters is much more common than is actually the case.
Compounding this problem is the misdirection that exists at the heart of the rationale for voter-ID laws.
The debate over voter-ID laws typically follows a familiar pattern. Critics of voter-ID laws will point to the lack of prosecutions or reported incidences of voter impersonation fraud. In response, proponents of voter-ID laws will argue that successful fraud often goes undetected, and that any amount of fraud is morally and ethically impermissible. “This nation should not tolerate even one election being stolen,” The Heritage Foundation wrote in 2011, “but without the tools to detect these illegal schemes, it is hard to know just how many close elections are being affected.”
As is the risk with campaign finance, the rational for voter-ID laws is founded on appearances and perceptions, thereby permitting advocates of voter-ID to escape from the more difficult task of proving the existence of actual fraud. It is much easier to look at a system’s “opportunities for abuse” and to point to public opinion polling documenting the public’s concern with fraud by voters, rather than undertaking the difficult task of proving its existence.
If widespread “voter fraud” existed, we should confront it. But by inflating the perceived prevalence of “voter fraud” and distracting the attention from the real election issues that need to be resolved, policymakers have found it easy to justify restrictions on voters that are not warranted by the facts, the result of which has been the effective disenfranchisement of millions of otherwise eligible voters.
Going into last tuesday, 600,000 to 800,000 registered voters in Texas lacked the government-issued ID needed to cast a ballot, with Hispanics 46 to 120 percent more likely than whites to lack an ID, according to Texas’ own data. And Texas, like other states with voter-ID, did very little in the run-up to the election to make sure that voters who didn’t have an ID could get one. As of late October, according to the Dallas Morning News, “only 41 of the new cards were issued by DPS [Department of Public Safety] as of last week.”
The demographics of America are rapidly changing, and voter-ID laws like the one in Texas are aimed less at stopping voter fraud than stopping the changing demographics of the state. According to the 2010 Census, the Hispanic population has accounted for 65 percent of Texas’ population growth over the past decade. And for the first time in history, non-Hispanic whites have become a minority in Texas, down from 52.4 percent to 45.3 percent of the population.
Faced with this reality, conservatives in Texas have been faced with a choice: re-examine their parties core policy positions on issues like immigration to broaden the Republican appeal to minorities, or simply make it harder for minorities to cast a ballot.
The history of American voting rights is marked by two traditions. One tradition expresses a continuing expansion of the right to vote beyond that found when the Constitution was framed. The other tradition is characterized by efforts to deny the right to vote. After the civil war, for example, the South used Jim Crow laws, poll taxes, literacy tests and grandfather laws to prevent newly freed slaves from voting. The push for voter-ID springs from this ugly tradition.
The battle over voter-ID is a battle for democracy. “Out of the many, one” is the phrase on the Seal of the United States and our de facto motto. We must always be willing to rise up and defend it.
**Featured Image Credit: Clackamus County Historical Society on Flickr