The Real Fraud

By John T. Hansen
This article appears on Page 6.

      On Jan. 9, the U.S. Supreme Court heard oral argument in a case challenging an Indiana voter identification law. Crawford v. Marion County Election Bd., 07-21. The Indiana law, enacted in 2005, requires that voters who vote in person at their polling places must produce a valid (that is, nonexpired) government-issued photo identification in order to vote. To obtain such photo identification (whether it be a passport, a driver's license or a state ID card), a prospective voter must appear in person to apply for the document, produce a certified birth certificate and some other form of identification and pay fees. The name on the photo identification must match the name on the voter role. There are two exceptions to the photo identification requirement: voting by absentee ballot or being confined to a nursing home that also is a voting place.
      The Indiana law is an idea whose time has come among Republican legislators in "red states." So far, in addition to Indiana, Georgia and Missouri have comparable laws, and similar bills are pending in a number of other such states. The proponents of the laws claim they are necessary to combat impersonation voter fraud; the opponents argue they are "not-too-thinly-veiled attempt[s] to discourage election-day turnout by certain folks believed to skew Democratic." Crawford v. Marion County Election Bd., 472 F. 3rd 949 (7th Cir. 2007, dissenting opinion of Evans, J.). Even some who support the law agree. Crawford (opinion of the court by Posner, J.).
      The inference that the photo identification laws are part of an organized effort by Republican politicians to suppress the likely Democratic vote is strong. First, these efforts generally started after the extremely close 2000 election, in which the country realized that a handful of votes could change the outcome of a presidential election. Before 2002, most states did not require any form of documentary proof of voter identification. Thus, for decades voter impersonation fraud seems not to have been perceived as a problem. Second, the impetus for photo ID laws has accompanied similar voter suppression activities associated with the Republican party. Third, in the legal challenges to these laws, proponents have been unable to cite evidence of impersonation voter fraud. The amicus brief filed in the Crawford case by the Brennan Center for Justice demolished the thin anecdotal, mostly hearsay evidence presented by the laws' supporters. Fourth, the photo identification laws do not apply to absentee voting, which traditionally has been more conservatively weighted. Fifth, these laws have been enacted or are being processed only in states that have voted Republican in recent elections. And, finally, in litigation challenging the laws, judges appointed by Republican presidents generally have upheld the laws, and judges appointed by Democratic presidents have taken the opposite position.
      In addition to arguing that the photo ID laws are necessary to prevent impersonation fraud, supporters argue a) that photo identification is necessary "to conduct some of the most basic, routine transactions and activities," according to an amicus brief filed by the Republican National Committee, and b) that only a few or a small percentage of voters will be denied the right to vote, as suggested during oral argument.
      These arguments show a rather cavalier attitude about the right to vote. Flying on an airplane, opening a bank account or entering an office building may be necessary for the conduct of certain business (especially among the affluent and educated), but no one would suggest that these activities rise to the level of being constitutional rights. Equally inappropriate is the proponents' argument that upholding constitutional rights is measured by how many people are denied their rights. The supporters of photo ID for voters likely include many of those who oppose affirmative-action programs on the ground that they are unconstitutional if even one white person in theory may be denied admission to a college of first choice. Of course, the motives of the laws' proponents are satisfied by reducing the voters' role of even a small percentage who they think may be likely to vote Democratic. These laws are designed to tip the result in close elections, not to achieve overwhelming numerical advantages.
      Another reason to be suspicious of the motives of those who support photo ID laws is their unwillingness to consider less-onerous means to the purported goal of reducing voter impersonation. Surely a requirement that a voter produce other forms of identification (for example, a utility bill or credit card) would be just as effective a deterrent against impersonating a dead voter or one who has moved out of state. Indeed, almost all states require only such forms of voter identification, if any at all. Once again, such less-burdensome requirements would not achieve the goal of selected voter suppression, but they clearly would suppress supposed impersonation voter fraud.
      The likelihood of voter fraud through the impersonation of registered voters at a magnitude that would influence the outcome of elections is more imaginary than real. In order to impersonate even one voter, someone would have to know that the particular voter will not vote in that election, and the impersonator would have to risk the absent voter's being unknown to any of the poll workers. Voter impersonation is generally a felony. Hence, it is a fairly risky venture. In order to have any meaningful impact, the process would have to be repeated over and over again, meaning that someone or some organization would have to have compiled lists of registered but unlikely voters and recruit numerous impersonators to appear at several polling places. In short, significant voter fraud through impersonation appears to produce such a low reward at high risk that it's understandable why there is little evidence of its existence. That is not to say that, in some localities, there has not been other forms of voter fraud, but photo ID laws will not affect them.
      Voter participation levels in the United States are low compared with other industrialized democracies. Our lawmakers ought to be concentrating their efforts on increasing - not discouraging - citizens' participation in elections.
     
      John T. Hansen is of-counsel at Nossaman Guthner Knox & Elliott in San Francisco. The opinions expressed in this article are his and do not reflect the views of the firm.