Sunday, September 24, 2006

Voter Identification Law

Over the weekend, I listened to a clip on C-SPAN.org concerning voter photo identification laws, "Tova Wang, Century Foundation, & Jason Torchinsky, American Center for Voting Rights" that were passed in the House of Representatives on Wednesday of last week. The law requires a photo identification with proof of citizenship (effectively, it requires a passport) in order to vote.

The discussion had Tova Wang of the Century Foundation arguing that voter photo identification deprived voters of a right to vote by putting costly barriers in front of them. It was a way of disenfranchising the elderly, the poor, and handicapped from voting. Jason Torchinsky of the Center for Voting Rights argued that it would be an effective deterrent to voter fraud. He brought up the fact that 30,000 people non-citizens from Mexico had drivers’ licenses and might be registered to vote even though they are not qualified.

I found that people on both sides used arguments that made no sense.

Right to Vote vs Voter Fraud

For example, let’s look at Tova Wang’s argument that the costs associated with getting a photo identification with proof of citizenship would put a barrier in front of people with of a right to vote. This right to vote itself implied that there should be no obstacles or barriers put in front of a person who wishes to cast a legitimate vote.

The requirement for photo identification with proof of citizenship would put costs in front of people that will keep those with a right to vote from voting in an election. It is true that every hoop that a person must go through to get to a particular destination will act as a filter, keeping a certain number of people from going through the hoop – not just those who the hoop was built to filter out, but others who do not wish to pay the cost.

By the way, in economic terms, cost is not limited to money. “Cost” refers to any expenditure of a valuable resource, such as time. For some people, asking for help from another is a “cost” because they seek to avoid being a burden on others, and are inclined to choose the option that makes them the lesser burden.

When it comes to distorting an election, a legitimate vote not cast because somebody put up barriers that kept qualified voters from casting a vote distorts an election just as much as an illegitimate vote cast in an election. As a way of disenfranchising the voter, barriers to voting and voter fraud are equal.

Therefore, it seems to me that the real question that needs answering in order to determine whether voter identification with proof of citizenship is a requirement would be determined by answering this question; Which is greater; the number of legitimate votes not cast because of the new barriers, or the number of illegitimate votes not cast? If the voter identification law blocks more legitimate than illegitimate votes, then it would be a good idea. If it prevents more legitimate votes than illegitimate votes, then the law itself will distort elections more than the problem it is being used to solve.

It is important to stress the fact that this comparison would have to look explicitly at the types of voter fraud that a national identification card would prevent. For the most part, these are cases where non-citizens register to vote and actually do vote in America’s elections.

Which is Greater?

So, the real question is: Which is the greater problem; legitimate voters being kept away from the poll, or illegitimate voters distorting the election?

In the debate at least, Torchinsky never brought up a single instance of voter fraud – of a person actually being convicted of casting an illegitimate vote. He brought up several cases in which voter fraud was possible, but no actual cases.

This could be the fact that voter fraud would be difficult to prosecute or even to discover under the current system. Indeed, the complaint against the current system is that voter fraud is so easy. This would imply that few fraudsters will get caught. Demanding that Torchinsky have examples of actual voter fraud would be unfair, since Torchinsky would be able to provide this only if voter fraud is easy to prosecute, which Torchinsky is arguing is not the case.

We can, however, obtain indirect evidence of the type of voter fraud we are talking about. One of the things that we could do, for example, is – when capturing illegal aliens – determine how many of them have registered to vote and actually voted in an election. It may also be useful for the government to conduct a study, take an election in a few sample precincts, look at the list of those who claimed to have voted, and verify (after the election) as well as possible whether those people actually voted. In other words, what percentage of the votes are voter fraud?

The Cost

In arguing in favor of the voter ID law, Torchinsky reported that Americans already have to produce photo ID for many types of activities, such as getting a job. Wang correctly answered this by saying that none of these other activities are covered by a right. There is no right to have a job, or a right to vote. One of the main differences between a right and a privilege is that others have more of an obligation not to put barriers before the exercise of a right. Indeed, there must be a compelling interest at stake.

One could argue that preventing voter fraud counts as a compelling interest. Yet, I covered that argument in the previous section. The ‘compelling state interest’ is in accurate elections, and a voter ID card will only protect this interest if it prevents a number of fraudulent votes cast that is greater than the number of legitimate votes not cast because of the additional costs imposed on the voters. Torchinsky provided no evidence that this is the case.

The Bandwagon Argument

In one part of the debate, both participants attempted to argue that the public was on their side. They both cited public opinion polls while asserting that the opinion polls that suggested that their opponent’s position was the most popular suffered from some flawed methodology.

The fact is, public opinion polls are never relevant in a debate over whether we ‘should’ or ‘should not’ have a particular law. The ‘trail of tears’ where President Andrew Jackson relocated 17.000 Cherokees living on the east coast of the United States and forced marched them to land west of the Mississippi. Four thousand Native Americans died in an atrocity comparable to the Battaan Death March in World War II – which the United States considered a war crime. Yet, this was amazingly popular. There was also a time and place where slavery would have won in an opinion poll, and Japanese Internment in World War II was exceptionally popular.

What is ‘popular’ and what is ‘right’ is not the same thing, and a debate over whether the country should or should not have a particular law should never involve an appeal to opinion polls.

Motivation

A final point that I would like to bring up on this issue is the question of motivation.

If a person has two desires, and there is a state of affairs that will fulfill both desires, then that person is motivated to bring about the state that fulfills both desires (barring more and other desires that would be thwarted by such a state). So, if a person wants to spend time with a significant other, and would really like to see a new movie that just came out, then we can expect him to ask the significant other to go see the movie with him. If he does not ask (and there is no reason to believe the significant other would refuse), we may assume he is not that interested in being with his significant other.

Similarly, the legislature has reason to be interested in preventing voter fraud, and in making sure that no legitimate voters are prevented from voting. To determine if a legislator has both interests we can see if he aims for legislation that reduces voter fraud while mindful (and taking steps to deal with any barriers that legitimate voters might find. If we see legislators who are opposing fraud who show no interest in the effects that their law might have on legitimate voters, then we have reason to believe that they do not really care if legitimate voters are prevented from voting.

In fact, we might be suspicious that they seek to prevent legitimate voters from voting, particularly when the voters who will likely be prevented from voting are those who would vote for a political opponent. If we discover that the law in question will have little or no effect on reducing fraud and a large effect on keeping those who would vote for Democratic candidates out of the polls, we have reason to infer that the Republicans supporting this bill are more interested in preventing legitimate votes (subverting democracy) than fighting fraud. We would gain additional support for this thesis if we discover the Republicans who control the Congress are not pursuing other forms of voter fraud – those that do not have the additional ‘benefit’ to Republicans of subverting democracy in their favor.

I do not have time right not to look at what the provisions of the law actually call for. However, I offer this to the reader as points to keep in mind while discussing the debate and presenting the issue to others. It would be particularly interesting to discover that a the party of a President who went into Iraq to promote democracy is that can be proved to be subverting democracy at home, by defending legislation that will have some minimal effect on voter fraud while having a greater effect of keeping those who support a rival party from voting.

However, as I said, that conclusion will need some research to determine if the premises that I outlined above are true.

I also have to say that the opposite is true - if those who oppose this law are not interested in opposing other ways of protecting against voter fraud that do not have this cost, and do so even in the light of evidence that the law would prevent mnore fraudulent votes than legitimate votes from being cast, then they, too, have proved themselves to be more interested in subverting democracy than protecting it.

1 comment:

Chris said...

The attempt to impose a cost on voting to disenfranchise the poor was tried directly once, until it was ruled unconstitutional by the Supreme Court. An indirect poll tax is no more just than a direct one, and the cost of obtaining a passport is quite high compared to the incomes of some people. Anyone who has to choose between getting the ID they need to vote, and putting food on their table, is highly likely to choose the food, and that's probably what the authors of this law are counting on. Unfortunately there's no guarantee that the present Supreme Court will protect voting rights against this sort of indirect poll tax.

If all costs of obtaining the necessary ID were borne by the state or federal government that requires the ID (including transportation to the offices where you can obtain an ID, which is a bit unrealistic, but let's assume it for the sake of argument) then this program might be defensible, if the kind of calculation you describe revealed that it would prevent more fraud than legitimate votes. It probably wouldn't anyway; fraud is rare, lack of foresight is common.

But as long as the prospective voter is expected to *pay for* his/her own ID before voting, it is a poll tax by another name; as such, it would have effects far beyond the actual votes it prevents. It would visibly and legally divide this country into people who have enough money to be allowed to vote, and people who don't. This is antithetical to the idea of democracy. Even those who have nothing - *especially* those who have nothing - should have a voice and a vote. A law that betrays that ideal is a bad law and an unconstitutional law.