The hysteria about voter fraud has reached a preposterous crescendo in recent years. In some vague, unspecified manner, the fight against voter-fraud is sometimes framed as a corollary effort in the "War on Terror." From the manner in which these concerned by pundits - Republicans, mostly - carry on, you'd think that voter fraud is the greatest threat to American democracy out there today.
While fraud has certainly occurred in the past, the number of votes known to be fraudulent in the modern era are dwarfed in number - we're talking many orders of magnitude here - by the number of votes lost due to ballots invalidated on technical grounds (dimpled chads and the like). Sadly, there is all too little discussion of this very serious problem in the mainstream media. The fact that significant portions of the population are denied the right to have their vote count due to inadequate polling conditions seems to be of little concern to either party. America is too busy shaking in its collective boots as Al-Qaida goes to the polls disguised as your deceased Uncle Jebediah to re-elect Ted Kennedy.
Given this hysteria, it is all the more curious that the Indiana law does not protect against most forms of voter fraud. It contains no provisions which would prevent fraud perpetrated via voter registration, nor does it affect mail-in/absentee ballots. It is only concerned with "in-person voter impersonation at polling places," about which even the Supreme Court majority decision admits, quoting directly, "The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history."
That's right. The law is designed with the exclusive intent of preventing the one form of voter fraud known not to be a threat to the State of Indiana.
The decision begins by explaining that, in determining the constitutionality of the law, the Court must weigh its inconvenience, i.e., the new burdens it places upon voters, against the necessity of preventing the criminality it seeks to eradicate. A direct application of this principle would yield this simple result: some, perhaps many, people will be inconvenienced by a law meant to solve a problem which is historically non-existent. Yet the authors of the majority decision avoid making this self-damning comparison by quickly moving on to discuss, in an obfuscatory manner, the numerous examples of voter-fraud perpetrated throughout American history. Reading the footnotes, however, shows that virtually all of these cases involve fraud through means other than in-person voter impersonation. To cite that specific tactic in any widespread scheme, the Court has to go back to 1868. In modern times, it mentions one - one - confirmed example of in-person fraud in the entire country, during a gubernatorial election in Washington in 2004. The rest of the whopping horde of 19 "ghost voters" in that election voted by mail-in ballot.
In essence, this law is correcting a problem that is, for all intents and purposes, non-existent, and which at any rate could be effectively prevented by asking a voter at the polling site to sign a log-book which matches their signature with the one in the voter registry (as is done every time I've voted here in New York, and as was done in Indiana before the introduction of the voter ID law).
Justice Scalia's own addendum to the decision, while citing a long parade of precedents, essentially makes the point that simply because a new voting regulation happens to inconvenience a certain portion of the populations - even if that is a "protected" population - it is not necessarily unconstitutional if the complaining voter cannot demonstrate discriminatory intent.
This seems like sound (if highly debatable) reasoning, so long as you overlook the clearly discriminatory nature of the law. And yet, what is the purpose of the law, if not to discriminate? It does not prevent any form of known fraud. It is universally favored by one party, and universally opposed by the other. Those most affected by it - the poor, aged, and those otherwise immobile - are those most likely to vote Democratic. It has no conceivable purpose aside from reducing the number of voting Democrats.
The motivations behind the bill become even more transparent when one considers the "remedies" offered to citizens of Indiana under the law's provisions to accommodate those for whom obtaining the free photo ID is either too burdensome, or who find having their image taken to be religiously objectionable. They may, it is stated, cast a mail-in ballot, or, if turned away at the polling site, apply for a provisional ballot. The obvious effect of this law will therefore be an increase in the use of such ballots. As journalist Greg Palast has noted in Armed Madhouse and elsewhere, these types of ballots are far more likely to be discounted as "invalid" due to pernicious technical quibbles (stray marks, and so forth) than ballots filled out on site at the polls. In some districts, they are many times more likely to be thrown out. And these ballots, especially provisional ballots, are cast overwhelmingly by minorities in poor neighborhoods.
This is all part, in other words, of a concerted effort on the part of Republican activists to push Democratic-leaning neighborhoods into less reliable and more frequently challenged (and defrauded) forms of voting to suppress their numbers.
In his dissenting opinion, Justice Souter, joined by Justice Ginsberg, notes the following:
...a State may not burden the right to vote merely by invoking abstract interests, be they legitimate [...] or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediment it has imposed. The State has made no such attempt here, and as to some aspects of its law, it has hardly even tried.
Poor, old, and disabled voters may find the trip to the BMV prohibitive. Skeptics who argue that "if you can get out to vote, you can get to the BMV," might want to consider the following: there are far more polling places than there are BMV branches. In many counties, the ratio is 1 BMV for every 12 polling places. In Henry County, there is 1 BMV for 42 polling sites, in Lake County there is one for every 70, and in Marion County, the ratio is 1 for every 75. Many Indiana counties have only very limited forms of public transportation, with 10% of all Indiana voters living in counties that have no public transportation systems at all.
And what of the provisional ballots offered to registered voters who present themselves at the polls without a photo ID, or who object to being photographed on religious grounds? After casting their ballot, the voter must appear within 10 days before a circuit court clerk or a county election board, and sign an affidavit. This must done every time such a person wishes to vote. There is only one county seat in each county. Are those dedicated souls willing to make this journey rewarded by having their votes counted? The text of the dissenting opinion notes the following about the 2007 Marion country municipal elections, held under the new ID law:
Thirty-four provisional ballots were cast, but only two provisional voters made it to the county clerk's office within 10 days[...]All 34 of these voters appeared at the appropriate precinct. 33 of them provided a signature, and every signature matched the one on file; and 26 of the 32 voters whose ballots were not counted had a history of voting in Marion County elections.
This is not some aberration unique to Indiana. Across the country, provisional ballots cast by legitimately registered voters are thrown out by the bucketful. Ditto mail-ins. This is why you hear a lot about them, in glowing terms, from the political Right, and why you will not hear much about the need to increase voter-access to on-site polling sites, longer hours, or weekend polls. They, quite simply and blatantly, do not want certain people to have their votes counted.
This Supreme Court decision is not a matter of some hair-splitting quibble over arcane legal theories. Both the majority and the authors of the dissent invoke a very straightforward and well established principle of relative harms. The simple fact is that the authors of the majority opinion are only pretending to apply it, and the dissenters actually do.
I suppose we should not be surprised. The vast majority of discussions and political crusade that emanate from above in the name of "defending democracy" and "making every vote count" are put forth in the interest of subverting democracy. When, for instance, Hillary Clinton wants to "count the votes" in the Florida and Michigan primaries, which she initially agreed would not count (as did everyone else in the DNC), it's not "democracy" that motivates her, but rather opportunism at the cost of democratic fairness. In the disputed 2000 presidential election, both George W. Bush and Al Gore lobbied the Court, not for "democracy" or "making sure every vote counted, " though both disingenuously claimed that this was their goal, but for a standard of vote-counting that would supposedly work out in their favor (neither candidate actually proposed a state-wide recount of all votes - which not only would have been the most fair proposition, but which, we now know, would have resulted in a Gore victory).
In the case of "voter fraud" the non sequitur between illness and remedy is even more "non." More and more discrepancies between exit polls and outcomes, and reports of long lines, accessibility problems, and other forms of disenfranchisement abound on live television each and every election eve. Yet, where does the discussion always turn, within hours, just as the tension and frustration reaches a crescendo? It's that bogeyman du jour, voter fraud. It's almost as if they want us to believe that the reason the lines are so long, and that so many ballots are thrown out, is that there are so many impostors out there.
If the State of Indiana was truly interested in preventing voter fraud, it would have passed a law that actually addresses it. There are a few common-sense methods for doing this. If the state feels that it needs to lay down stricter requirements, these requirements should be applied to new registrants at the point of registration, not to previously registered, legitimate voters, and they should be phased in over a reasonable period of time. Furthermore, the burden is on the state to maintain the integrity of its own records by, for instance, updating the registry database to match it against a list of recent death certificates. Furthermore, any further legal restrictions on voter registration and identification should logically attempt to minimize reliance on those methods of voting most frequently defrauded, not encourage them, which is essentially what Indiana's law actually does. Even if one were to defend Indiana's Voter ID law as constitutional, one would still be faced with the fact that it is, in practice, counterproductive, since it discourages the use of the least-defrauded form of voting (in-person poll attendance) and encourages the use of methods known to be more easily and more commonly defrauded.
But such incompetence, it appears, is not unusual for the government of the State of Indiana, about which the National Government filed a complaint:
Indiana has failed to conduct a general program that makes a reasonable effort to identify and remove ineligible voters from the State's registration list; has failed to remove such ineligible voters; and has failed to engage in oversight actions sufficient to ensure that local election jurisdictions identify and remove such ineligible voters.
In other words, because Indiana has failed in its obligation to remove dead-people and non-residents from its voter rolls, it has decided to make voting more restrictive for legal, living residents. This is looking-glass legislation at its best.
Thanks to the Indiana government's laziness, incompetence, and disregard for the needs of its most vulnerable citizens, the most right-wing Supreme Court in memory has been handed the means render "constitutional" the most restrictive voter ID law in the country, a de facto poll tax, thus setting a precedent for the rest of the country to follow.
