Voter ID laws and the right to vote

News media are a poor guide to how voter ID laws will fare where it matters: in the courts.


As a newcomer to Patch, I’m still finding my way around here. One of its most appealing features is the ability of Patch editors in the neighborhood to share content. Thanks to that practice, I was able to eavesdrop recently on an interesting discussion among Loganville-Grayson Patch subscribers about voter ID laws.

Thanks to them, I was inspired to think about this issue more carefully than I’d done before. That’s what good online news outlets do. Instead of staging food fights, they motivate people to get better informed than they might be otherwise. So props to the Loganville-Grayson posters for prompting me to do some homework about voter ID laws.

What struck me most as I read around is what a poor guide news media are to the legal issues that are going to determine how all this comes out. I shouldn’t be surprised, but the media are almost totally focused on the politics of this issue. In the courts, it’s a whole other story.  

I can explain that if I start with the most arresting post I came across in the Loganville-Grayson discussion: “There is no Constitutional RIGHT to vote! Only Constitutional protections of certain classifications of people!”  The poster didn’t elaborate, but the thought seems to be that, there being no provision in the Constitution expressly securing a general right to vote, voter ID laws pass constitutional muster as long as they don’t unreasonably burden the specific categories of people whose voting rights are guaranteed by the 15th, 19th, 24th and 26th Amendments.

That’s an interesting idea. The only thing wrong with it is that the United States Supreme Court has repeatedly rejected it. Crawford v. Marion County Election Board (2007) is the case in which the court upheld Indiana’s voter ID law, at the time the most restrictive in the country.

I’m not now nor have I ever been a lawyer, but except for highly technical areas of the law, I’ve never been deterred by my lack of legal training from reading judicial opinions. It’s too bad more people don’t have the time and patience to do that because court opinions often provide penetrating civics lessons, richer by orders of magnitude than anything we learned in ninth grade Problems of Democracy or learn now from cable news and talk radio.

I learned from working through Crawford that the court has held in a whole string of cases that the Constitution protects the right to vote as fundamental, even though there’s no provision in it that explicitly says that. In his dissent, Justice David Souter, since retired, quoted from one of those cases: “It is beyond cavil that voting is of the most fundamental significance under our constitutional structure.” Not just sort of significant, mind you, but “of the most fundamental significance….”

He went on to note, “Voting-rights cases raise two competing interests, one side being the fundamental right to vote.” On the other side is the states’ interest in regulating elections to ensure that they’re fair, honest and orderly.  And the court’s task is to find the right balance between those two interests.

Long story short, the court ruled in Crawford that Indiana’s legitimate interest in securing the integrity of elections didn’t unreasonably burden Indiana voters in the exercise of their basic constitutional voting rights.

Justice John Paul Stevens, also now retired, wrote the majority opinion, in which two items that the news media have been hyperventilating over didn’t slow him down much.

Newspaper pundits and TV talking heads have piled in to condemn voter ID laws as a “solution in search of a problem.” While the standard justification for them is that they’re necessary to prevent fraud, opponents have argued that the sort of in-person voter impersonation they address rarely occurs.

But Justice Stevens said that states enacting regulations designed to bar unqualified voters don’t have to present evidence of massive voter fraud to justify them. And he noted that the record in Crawford included not a single instance in Indiana history of the sort of in-person voter impersonation Indiana’s ID law is meant to prevent. It’s enough if that sort of fraud has happened some place some time, and Justice Stevens reached all the way back to 19th century New York for a colorful example.

The media have also sounded alarms that recently adopted voter ID laws are partisan vote suppression schemes meant to disenfranchise groups of voters who typically vote for Democrats. Any doubt about that motivation was famously dispelled by Mike Turzai, the Majority Leader of the Pennsylvania House of Representatives, when he told a Republican State Committee meeting that the state’s new voter ID law would deliver Pennsylvania’s electoral votes to Mitt Romney.

Justice Stevens, however, was no more moved by similar charges from the Indiana petitioners than he was by the “solution in search of a problem” claim. Individual legislators’ partisan motivation doesn’t, by itself, constitutionally impair the voting regulations they enact, he wrote. For regulations to be constitutionally defective, they have to unreasonably burden qualified voters in the exercise of their voting rights.

So to find out what’s really going on with this voter ID thing, you can’t just read Leonard Pitts or listen to Sean Hannity. You have to listen to the people who’re actually making the decisions about it.

But having worked through Crawford, as an amateur I don’t think it settled much, which seems to be borne out by the flurry of voting rights cases that have been brought since it was decided.

One reason it didn’t (he said confidently) is that it wasn’t an ideal case to take to the Supremes in the first place. For one thing, Indiana’s voter ID law had already been upheld by two lower federal courts. For another, the petitioners brought what’s called a “facial challenge” to Indiana’s law. That’s a challenge claiming that a law is unconstitutional “on its face,” in other words, that there are no possible applications of it that would be permitted under the Constitution. The bar for success in facial challenges is very high and can’t be cleared just by parading a few little old ladies before a judge with stories about how hard it’ll be for them to vote under this or that voting scheme.

So Justice Stevens left the door open for future challenges to this and similar laws. We’re not done yet.

A case that may hint at how all this is going to turn out ultimately is now making its way through state courts in Pennsylvania. Faced with evidence that there may be over a million eligible Pennsylvanians who’ll be barred from voting under the state’s new ID law, officials are scrambling to provide alternative forms of ID requiring less documentation than originally called for. I’m just guessing, but long-term it may turn out that after states spend buckets of taxpayer money to defend their stringent ID laws in court, they’ll end up backpedaling to voting regimes not all that different from what they had before. If that’s the way it goes, then all the turmoil over the recent spate of voter ID laws will turn out to have been nothing but expensive waste motion.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Tammy Osier July 28, 2012 at 03:26 PM
Leon, I did the same thing on mine. You probably did what I did - late at night and had a different thought going while writing another thought. I corrected mine also. I wish we had an edit button for at least a day after we post. For some reason, it looks different once published and is easier to catch those typos! lol
Rebecca McCarthy July 28, 2012 at 04:27 PM
We can talk about it. I will correct your typo now!
Dave Ballard July 28, 2012 at 10:07 PM
In the end, the focus of discussion seems to be on only one of four areas in which voting fraud may possibly take place. Granted, being able to affirm that each voting individual has the right to be there in the first place is important. But is it not just as important to affirm: 1) that that person's vote is accurately recorded (their ballot says what they meant it to say, and there is a valid record of it)? 2) that that person's vote is secure and untampered with while it awaits counting? 3) that the process of counting that vote is transparent, public, and accurate? Electronic devices such as voting machines have regularly proven to be unsecure, subject to component failure, and unable to provide a ballot-by-ballot record of votes cast even when they do work correctly. One cannot help but wonder if, while we sweat over the onsies and twosies of voter ID fraud, we're missing the wholesale flood of manipulation in these other three areas.
Jerry NeSmith July 29, 2012 at 02:29 AM
Leon, so glad you are at The Patch!--the best online source for local daily news!
Tammy Osier July 29, 2012 at 02:38 AM
Leon, Rebecca- tht's why I made the suggestion of maybe having a 12 hr. period in which to do it. In mine, I left in the word "not" it which substancially changed the whole meaning of what I was trying to say. Plus, it was a quote from a very important person. It worked out though, I was able to retract it on comments too.


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