To those saying that this law won’t have a significant effect, so we shouldn’t worry about it: Well, then, why are they passing it? If they really think it won’t have a significant effect, then it’s just law for the sake of law. I thought you small-government types were opposed to that? No, the only reason that these laws get passed is because the legislature that passes them does expect them to have an effect, and even if they’re wrong about that, the fact that they’re trying is still reprehensible.
I just wanted to pop in and say that I wrote my law review article on this topic. Specifically, a case note on Crawford. If anyone has any specific legal questions (i.e. more specific than “is this constitutional?”), I’m happy to answer them.
I don’t know who might be saying that the law won’t have a significant effect.
I’ll opine that the law won’t have a significant effect on legal voters.
I expect will have a dramatic deterring effect on people who would otherwise vote illegally.
To make that claim you need to show they have a problem with illegal votes being cast (e.g. [totally made up numbers] there are 3 million votes cast and 100 across the state are bogus then it is not a problem).
I have no doubt some few are (with so many people voting some are bound to not meet muster) but nowhere near anything that would sway an election.
Show me Tennessee (in particular for this thread but try it for any state if you want) has a problem with this and I’m right there with you.
Is this your personal opinion or an assertion of how things are?
That doesn’t follow. If the law is written so that it doesn’t affect legal voters but has a deterrent effect on illegal voters, then it doesn’t matter how many illegal voters there are. If there are five, then it’ll affect five voters; if there are 1 million, then it’ll affect a million. Now, it might well be that such a law is unnecessary because there aren’t enough illegal voters to make a difference (which is what you seem to be arguing). but that’s just an argument that the law is unnecessary, not that it’s harmful or shouldn’t be passed.
You’d be right except there is a knock-on effect which is to disenfranchise legitimate voters.
The two need to be balanced.
That’s why you write the law carefully enough and include enough safeguards so that it won’t disenfranchise legitimate voters.
In your opinion, under the Crawford standard, how restrictive can a voter id law be and still be constitutional? What safeguards need to be in place to ensure constitutionality? How does that change if Scalia’s standard is used rather than Stevens? And, likewise, what voter ID laws, if any, would be constitutional under Souter’s standard? Breyer’s?
ETA: Let me clarify. I’m not asking about the constitutionality of specific voter ID laws…but what’s the most restrictive model law you could make under the four standards?
Fine.
Except this law disenfranchises legitimate voters.
How? I don’t see in what way this law disenfranchises legitimate voters. Legitimate voters will either have a valid ID or won’t have a valid ID. If they have a valid ID, they can show it, and vote. If they don’t have a valid ID, they can sign an affidavit saying that they’re legally eligible to vote and vote.
How?
I have posted stats on the number of people without IDs.
No one has posted any stats on voter fraud in Tennessee.
Do you think the Tennessee legislature has nothing better to do?
Do you think the Tennessee legislature is addressing a real problem?
Why do you think the Tennessee legislature is going to the trouble to do this?
The only answer is to disenfranchise voters who are likely to vote against them.
There is no “Crawford Standard.” Justice Stevens (writing for the majority) declined to make a bright-line rule for this situation, which was one of the chief criticisms Justice Scalia made in his concurrence. Instead of establishing a clear new rule, they applied an old rule, from a case called Anderson v. Celebrezze. The Anderson analysis starts with the question “Does this law place a ‘severe’ burden on the right to vote?” The majority (i.e. Stevens) applied this question to people in Indiana who didn’t have photo IDs, and came up with the answer “definitely not,” which essentially settled the question for the facts at hand. The concurrence (i.e. Scalia) applied this question to everyone in the state who wished to vote – whether they had IDs or not – and came up with the answer “absolutely definitely emphatically not” which essentially settled the question for the facts at hand. For both the lead opinion and the concurrence, the analysis stopped there without really going deeply into the next two steps of the Anderson test.
The first dissent by Souter ignored the old Anderson test, and made up a new test, which the Indiana law failed. But he never really gave specifics of what the test was. He just described the conditions in Indiana, and said that there was a severe burden here. The second dissent by Breyer basically said “ditto” to Souter.
So I can’t really give any guess as to what would be constitutional and what wouldn’t be, because there’s really no standard except “situations kind of like Indiana are constitutional.” And the dissent’s proposed standard would be “situations like Indiana’s are unconstitutional.”
The only guidepost to be gleaned from the opinions is that both sides compared the difficulty in getting an ID to the difficulty in voting. The majority said they’re about the same, and the dissent said that getting an ID is way harder than voting. But this is a minor point for both sides.
Sorry there’s no clear answer to your question, Captain Amazing. I wish the court had given a better test that would allow us to say X is constitutional while Y isn’t. But they didn’t. All we have is the Indiana situation to use as a yardstick.
Addressing the thread more generally, another point that often comes up here is the statistics. Percentages of populations without proper ID, and so forth. Both sides in Crawford put up insane numbers: the Dems* put out studies (like the one cited by Whack-a-mole) saying that 20% of eligible voters lacked IDs, and Republicans put out studies saying that it was less than 1%. The court addressed the Dems’ studies, and basically dismissed them as ridiculous, pointing out some pretty obvious flaws in methodology and tabulation.
And tellingly, in all the lower appeals, the Dems were unable to put up a single witness who had had trouble getting the requisite ID. They scoured the state and came up with a few witnesses, but their cross examinations all went something like this:
Attorney: “Did you end up getting your ID before the election?”
Witness: “Yes.”
Attorney: “Was it difficult?”
Witness: “Not at all.”
Attorney: “How much did it cost?”
Witness: “It was free. And the lady was so nice. I’ve got it here if you want to see it.”
Attorney: “No further questions.”
- The case was split perfectly down party lines. It’s not misleading to say it was Democrats versus Republicans.
Don’t forget you can also LOSE an ID. Then you have to pay to get it replaced. In Illinois my wallet was stolen, it cost me $20 bucks to get it replaced. So it’s not just once every XXX years.
If you’re homeless or poor you can find yourself getting your ID stolen a lot.
The 24th Amendment forbids a poll tax or ANY OTHER TAX.
So the question is really does this fee for an ID amount to a tax.
It’s not the same to compare buying a good or service with voting, because voting has an entire amendment to back it up. The repeal of prohibition also gave the states more power to regulate alcohol than other commodities.
In Illinois you sign for your voter card and it’s easy to compare that signature against the voter card on file.
Thanks, Randy. I appreciate your answer. Do you know if there are any other voter ID cases in the works right now?
To answer your questions, I don’t think voter fraud is a major problem (although the Indiana Sec. of State just got indicted for voter fraud, of all people), and the bill probably isn’t the most important issue the Tennessee legislature faces. I also agree that it’s largely partisan. Voter fraud is really a Republican bete noire, and the issue breaks down along party lines.
But the fact that the bill is both partisan and unwise doesn’t make it unconstitutional. You haven’t shown that it is, or that it’s likely to disenfranchise any substantial number of voters. Again, because there’s a provision in the bill that lets indigent voters vote if they swear to their identity, anyone who can’t afford an ID card can just sign the affidavit. So what’s the mechanism, as you see it, by which legitimate voters will be denied the franchise. Could you spell it out more explicitly?
It’ll keep away the elephants too.
To be fair, both sides rely pretty heavily on imaginary problems. The Republicans pretend there’s an epidemic of voter fraud, and the Democrats pretend there’s a gigantic population of people who don’t have IDs and who would have trouble getting them.
There are several other reasons to have voter ID laws besides disenfranchising voters who might vote against a particular party. There are three reasons given in the Crawford case, and more that aren’t. They are 1) deterring voter fraud, 2) modernizing elections, and 3) safeguarding voter confidence. I’d concede that there’s not much voter fraud, and these laws won’t prevent determined parties from committing it. I’m personally a little skeptical about the “election modernization” argument. I concede that as technology progresses, it may become helpful or necessary to have IDs integrated into a registration system. But modernization for modernization’s sake is question-begging: it is yet to be seen whether new technology gives any benefit.
I personally find the third rationale the most important, even though both sides in Crawford give it the least attention. The thesis of my article was that in a democratic government, the mandate is not derived from the popular vote. If it were, there would be no mandate when there is low voter turnout. Rather, the mandate is based on confidence in the vote. Even if everyone votes for candidate A, and candidate A wins, there will still be no true mandate if everyone believes the election was rigged.
So it is really important that people continue to believe in the legitimacy of elections. And in a society where you can’t even rent a video without an ID, how much longer are people going to believe in the legitimacy of elections that don’t require one? In the last thirty to forty years, Americans have become more and more accustomed to having an ID requirement for thing that are really important. Americans think: if you don’t require an ID, the thing you’re doing must not be that important. It is dangerous to allow participants in a Democracy to begin to believe the vote isn’t important.
Put another way, it doesn’t matter how much actual voter fraud is going on. If everyone believes there’s voter fraud, the election is meaningless anyway.
Of course, if you don’t believe a popular mandate is necessary for a just government, then this argument won’t win you over.
Yes, I am sure you do.
My pleasure. And no, I have no idea. I let it drop off my radar once I turned the damn thing in, and that was almost two years ago.
I’ll just note that in Crawford, opponents of the law pointed out that if you don’t have an ID in Indiana, to get one, you’ll need a birth certificate. If you don’t have a birth certificate, you can get one, but it will cost between three and twelve dollars. Therefore, since some people would have to pay actual cash money to vote, it was a poll tax and therefore unconstitutional. The Supremes’ response? “$3-$12 is not a big deal. Lighten up.”
As easy as it is for who? For people who are online and search savvy, it’s fairly simple to find out the process. And I did find out the process in Tennessee, and here’s the HUGE GAPING CATCH-22 for Tennessee natives:
**To get the document you need in order to get a Tennessee state issued photo ID, you have to already have ID.
**
If you are a natural born citizen, non-military and don’t have a passport (which the majority of Americans don’t) and you don’t already have a driver’s license/non-driver ID, you have to have two other pieces of documentation, and looking at the list of acceptable documents an unemployed, uninsured non-veteran who lives with someone else & doesn’t have a lease, utilities or a bank account can never fulfill the requirements to get a copy of their own birth certificate even if they do have the money.
Then there’s the actual process of getting the birth certificate in your hands. If you don’t have a credit card, you can’t request the birth certificate online, if you have online access to begin with. So you can either go to downtown Nashville in person, or you have to make a request by mail, which requires access to a photocopier in order to send in copies of your acceptable form of identification.
Then you wait six to eight weeks.
Then you take that birth certificate, which costs $8 – unless you’re over age 62, in which case it costs $15 – plus a secondary ID which, again, if you’re unemployed, not a veteran, uninsured and/or transient may be impossible to produce, plus your marriage and divorce documents, if your name has changed (those are also only available in person in Nashville or by mail and also have a cost attached, and this of course disproportionately impacts women, causing an extra burden) plus two proofs of residence which, if you don’t have a bank account and don’t pay rent/mortgage and don’t drive, you cannot produce, to the local driver’s license station… where local might mean two counties over. Don’t drive or have easy access to someone who does who has time to take you during the daylight hours government services are available? You’re SOL until you can find a ride.
It’s dead simple. Unless you’re a person living on the margins, where life is demonstrably more difficult but you still should not be hampered in exercising your right to cast your vote in this country.
If your income is solely from TANF – or if you have no income – you don’t write or cash checks. You don’t have a bank account.
You don’t know people who don’t drink or smoke? Especially poor people who can’t afford such vices? You can’t imagine stores in close-knit communities where people are served without ID despite the law because the proprietor knows their patrons and knows when they’re of legal age?
Is it hard to fathom that some people vote expressly because they are so desperately disenfranchised elsewhere in life?
See this is the problem. You presume that photo ID is necessary to “conduct every day life.” If 11% of adults overall and 25% of African American adults (a staggering number) don’t have valid photo ID, clearly they’re living every day, conducting their lives to the best of their ability. Because they’re not conducting their every day lives in the fashion that you can imagine doesn’t mean that it’s impossible or even particularly restrictive.
These are clearly people who’ve never made the choice between medicine and milk, or had to decide if it was better to keep the heat on or the lights on when there were two disconnect notices. Right now, this is especially meaningful. 1 in 7 American children aren’t getting enough to eat because their families can’t afford food, $3 is a gallon of milk. $12 is a week’s worth of lunches for a couple of kids in school. Life on the margins.