Thursday, January 04, 2007

One in a Million

In a 2-1 decision, the 7th Circuit Court of Appeals has just upheld Indiana's voter ID law from challenge by, among others, the Democratic party. The case is Crawford v. Marion County Board of Elections. Posner wrote the majority opinion, the dissent was by Judge Evans.

The competing interests in voter ID cases are relatively clear. On the one hand, it clearly imposes a burden on poor and indigent voters (who trend Democratic) that may not have a photo ID on hand. On the other hand, voter ID laws are said to be necessary to combat fraud.

The problem with that purported justification is that--despite a concerted effort to make Americans feel that voter fraud has reached epidemic levels--there is little to no evidence that it is any problem at all. As Judge Evans writes in dissent:
The fig leaf of respectability providing the motive behind this law is that it is necessary to prevent voter fraud--a person showing up at the polls pretending to be someone else. But where is the evidence of that kind of voter fraud in this record? Voting fraud is a crime (punishable by up to 3 years in prison and a fine of up to $10,000 in Indiana) and, at oral argument, the defenders of this law candidly acknowledged that no one--in the history of Indiana--had ever been charged with violating that law. Nationwide, a preliminary report to the U.S. Election Assistance Commission has found little evidence of the type of polling-place fraud that photo ID laws seek to stop. If that's the case, where is the justification for this law? Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table? I think not.

Emphasis added. Judge Posner tries to argue that prosecutor attention may have been elsewhere, but it seems that if this was a endemic problem there at least would have been one attempted prosecution in Indiana, somewhere, at sometime.

In general, as a matter of statistics, attempting to reduce fraudulent votes (by tightening standards) will also reduce (via deterrance or rejection), the number of legitimate votes. The reverse is also true: trying to encourage more voting will likely increase fraud. But in our current state, too many votes has not been our problem. Nor, for that matter, has been too much voter fraud. As fraud gets scarcer and scarcer, the costs of enforcing rise, and returns diminish, so that new endeavors catch fewer offenders and block more legitimate voters. Voting rights expert Spencer Overton estimates that "a photo ID requirement would prevent over 1000 legitimate votes (perhaps over 10,000 legitimate votes) for every single improper vote prevented."

In a sense, this debate is a facade, because everyone knows that it's not about voter fraud as much as voter Democrats. Evans is quite clear on this, starting his opinion:
Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.

Still, normally there is at least some effort to link a purely partisan move to a real-life problem. In voter ID case, the alleged concern appears have to been literally drawn out of thin air.

Via Jonathan Adler.


Anonymous said...

What a load of malarkey. Whether an individual is Bill Gates, Bill Clinton, or Bill Homeless-Dude, would be voters have the obligation to demonstrate his or her identity.

An official photo ID is insufficient, in my opinion, to do that. But it is better than nothing.

Without some standard the dead have a certain tendency to start voting from the "other side".

Don't pretend that it's never happened before and in that part of the country. Daley's "machine", anyone?

David Schraub said...

True or false: Chicago is in Indiana.

Mark said...

I find it interesting that a Democrat is arguing that voter fraud is not an issue .... ask Mr Gore in 2000 and Mr Kerry (Ohio?) in 2004?

Tell me how informed a voter will be if he can't produce photo ID?

And yes, I know the "uninformed/indigent electorate" trends Democrat and that puts a bias on everyone's argument but I'm curious. What is your principled reason for wanted to expand the voter pool with no regard to their competence?

David Schraub said...

Gore didn't lose in Florida because of voter fraud. He lost because votes weren't counted (disenfranchisement).

As to your latter question, first of all, "poor" does not equal "incompetent". It equals "poor." Second, I may be a democracy skeptic, but if we're going to have a democracy, let's have a democracy. No halvsies. Third, I think that one of the most important roles in a democracy is that decisions are made (or at least influenced by) a representative cross-sample of the community. If certain classes of citizens are systematically excluded or deterred from voting, that results in a non-representative government, and the marginalized groups will be hurt.

Anonymous said...

This debate may represent an interesting case of what Cass Sunstein has called "normative bias", whereby an individual's prior normative commitments influences her factual judgments. I'm not so sure that, at least to a conservative lay-voter, the Indiana law does represent a thinly veiled Republican political gambit. Strong conservative commitments to norms of law and order may predispose conservative lay-voters towards belief in the existence of voter fraud and also towards support for a law that purports to combat the problem. Let's face it, most people don't subject their factual beliefs to any kind of rigorous empirical research, but rather construct their beliefs from hearsay and selective incorporation according to worldview.

Moreover, conservative morality - with its strong emphasis on self-reliance and the role of reward & punishment in fostering it - tends to discount the worth of the poor (and hence their votes), who are often perceived as irresponsible, moochers, lazy, undisciplined, etc. We might therefore expect a conservative balancing of the interests to weigh in favor of the law's validity.

On the contrary, liberal morality's emphasis on empathy and nurturance - and it's corresponding willingness to acknowledge the existence of "social forces" in shaping personal character - is likely to highly value the political self-determination of the poor, and perhaps discount (or even deny) the existence of voter fraud. Thus, a liberal balancing test is likely to strongly favor (poor) voters' rights.

So lay-voters of both stripes may sling acrimony across the aisle in good faith: conservatives at liberals for being soft on criminals, liberals at conservaties for being insensitive and greedy. And both stances may be held in all sincerity. The more interesting question in my mind is whether more sophisticated political actors, such as the Indiana Republicans who drafted and passed the law, were in fact motivated by raw political advantage but understood the useful (legitimizing) political valence the law would have among the state's conservatives. Their rhetoric may have even self-consciously framed the populace's understanding of the law to that end.

I guess my basic contention is that, when looking across the divide between distinct moral frameworks, sincere normative positions can often be mistaken for thinly veiled maneuvering, at least insofar as those positions are taken by (politically) unsophisticated laypeople. But what motivates the technocrats in the state capitol may be a different matter altogether.

Mark said...

I used the term incompetent because I think that the poor in this country, if competent can get a photo ID. If you can't incompetent is the correct label.

Do you mean disenfranchisement in Florida like Gore's motions to exclude overseas absentee ballots?

David Schraub said...

It's not an issue of competence--I suspect most citizens are physically capable of getting a photo ID (although that depends on how much the requirement is publicized, and if it costs money). For some it's significantly harder than others (Judge Evans uses the example of a 64 year old in an Indianapolis retirement home born in Arkansas--how does he get his birth certificate?). But even still, the point isn't impossibility--it's that it imposes a burden that falls much heavier on some people (those that don't have/wouldn't otherwise need a photo ID) than others, for no particularly compelling reason.

Disenfranchisement refers to disenfranchisement that actually happened. Since Gore's motion in that case was rejected, nobody was disenfranchised. The only people who actually were disenfranchised in Florida were those whose attempted votes were actually not counted. I have absolutely zero doubt that more people in Florida in 2000 cast their ballots believing they had voted for Al Gore. And as demonstrated below, a fair standard of adjudication would have borne that out.

In any event, I always argued that Florida ballots needed to be counted in one of two ways. Either we adopt a strict standard that demands all ballots be "textbook", so to speak, regardless of whether the intent of the voter was clear. This would reject both the overseas absentee ballots (which were accepted) for lack of proper certification, in addition to Gore's overvotes and undervotes (which weren't). Or, we adopt a more leniant standard based off the intent of the voter. This would accept both the absentee ballots and Gore's over/undervotes. I favor the latter quite strongly, because I oppose disenfranchisement. But regardless, it should have been self-evidently obvious that the standard needed to be consistent.

Either way, the numbers would have Gore winning. The only way he could have lost was if a double-standard was adopted--ballots that favored Gore (over/undervotes) were judged strictly, and ballots that favored Bush (Absentee) were judged leniantly. And so it was.