Tilting at Electoral Windmills

By James Evans

Where Don Quixote imagined giants in need of slaying, Sancho Panza saw windmills in a field. Similarly, where the Indiana General Assembly saw the big bad voter fraud giant, common sense shows voter fraud is an unlikely and infrequent crime.

However, arguments before the Supreme Court over an Indiana law requiring photo identification to vote weren't put forth with terribly factual arguments. Instead, the case reached the Court as an actionable end to a proxy war between Republicans and Democrats.

Even Justice Alito expressed concern that, "there's nothing to quantify in any way the extent of the problem or the extent of the burden." That is to say, Indiana couldn't specify how many people actually commit voter fraud that could be stopped if their IDs were checked - and the plaintiffs couldn't specify how many people won't vote because they would have to get an ID to do so.

On one hand, the Indiana General Assembly passed the voter ID requirement on strict party lines and its Republican governor signed the bill into law. Additionally, since it was passed, the law has been endorsed by every Republican-appointed judge whose desk it has come across.

The Republicans argue that presenting ID will prevent Jane from saying she is Sally at the polls. However, there is tremendous controversy over whether Jane would ever do such a thing. Attorneys for the Indiana Democrats bringing the case point out that there has never been a prosecution for voter fraud in the state.

In his decision upholding the law, Seventh Circuit Court of Appeals Judge Posner countered that, however, "the endemic underenforcement of minor criminal laws…and by the extreme difficulty of apprehending a voter impersonator" contribute to the lack of prosecutions.

Nationally, studies show that while voter fraud does exist, "it doesn't take place at the polling place," as one expert told NPR. Since there is little or no verification of absentee balloting, voting by mail is a more likely target for fraud.

On the other hand there is a foil to the government's compelling interest - an undue burden. While Indiana invites the ID-less of the state to procure free voter identification cards, the process requires coming to an election office to present a birth certificate and an item proving residency, such as a utility bill. If the citizen doesn't have a birth certificate, he or she must order a certified copy at their expense.

Indiana Democrats protest, as Judge Posner writes, "most people who don't have photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates."

In the potential time and money it takes to get a voter ID card, Democrats see a burden that will prevent some Indianans from voting - a burden which they believe outweighs the State's interest in preventing the perceived voter fraud problem.

The Democrat's weakness? As Justice Scalia asked, "why can't the people injured by this law appear themselves and say the law can't be applied to us?" or as Judge Posner put just as pointedly, "There is not a single plaintiff who intends not to vote because of the new law."

These issues arose because the Democrats want the law done away with in time for the 2008 Presidential Election. To do so, they sued early, alleging a "facial challenge" that the law was simply unconstitutional, no matter how you spin it.

The judges quoted above, however, were looking for an "as-applied challenge," like the Oliver Brown in Brown v. Board - someone who could seek personal redress from the justice system and tell their sorry story of curtailed voting rights. Without it, there may not be an undue burden in their eyes.

So if there wasn't much of a factual case on either side, what were nine justices and three lawyers talking about for an hour? Democrat and Republican conjecture and conspiracy theories, mostly. And in the middle the Court is trying desperately not to come out looking as much like a political tool as it did after Bush v. Gore in 2000.

Is the right to vote one in which laws should be subject to strict scrutiny - a test that presumes a law is unconstitutional until proven constitutional? Not according to the Seventh Circuit, and likely not according to the Supreme Court.

However, does that mean voter ID laws are any less of a partisan tactic? No.

ID requirements are a convenient way to discriminate quietly by requiring something most people already have - in the name of tilting at a giant that is really a windmill.