The United States Constitution does not explicitly grant American citizens the right to vote. It took five constitutional amendments, a civil rights movement, and a host of court battles to achieve that. Now rumor of voter fraud is being used to enact photo ID laws to strip that right from us. The Supreme Court will decide if these laws are constitutional. Its ruling will decide who can vote, and it will have as much an impact on the 2008 election as did its 2000 Florida decision that put George Bush into the White House.
Already laws requiring individuals to present a photo ID when voting in-person have been enacted in six states, and the fear, hysteria, and fabrications surrounding fraud have led four courts to uphold such laws, setting the stage for a second wave of disenfranchisement that will rival that found after the Civil War when the urban poor, immigrants, and freed slaves were barred from the ballot box. In an Indiana court of appeals case which is now headed to the Supreme Court, the state enacted a law requiring individuals to show a photo ID at the polls in order to address voter fraud, even though the state admitted to no cases of impersonation at the polls. Judges such as Richard Posner in that case have been derelict and caviler in admitting the most flimsy of evidence of fraud. Consistently they have cited pseudo-studies by the likes of John Fund who have trotted out fear of voters impersonating others as the reason for these laws, when in fact states such as Indiana concede this is not a problem.
As I argue in a forthcoming law review article that examines the evidence and litigation on voting fraud, the so-called data on fraud in studies such as those found in the Cater-Baker Report are based on hearsay, uncorroborated, and eventually refuted claims that are passed from one study to another without so much of a quick check of their accuracy. Were these claims and studies subject to any of the rules of analysis normally demanded of expert testimony, such as the Federal Rules of Evidence, a reasonable judge would exclude them from court.
Yet at the same time Judge Posner and others are admitting in this bogus evidence on fraud, they simply seem indifferent to the overwhelming research by political scientists that photo ID laws raise the cost of voting, constituting what the Missouri Supreme Court concluded as a new poll tax on the poor, elderly, and disabled.
The real fraud behind the voter ID laws is not individuals impersonating others at the polls. It is rumor and fear impersonating the truth and it is letting both determine the outcome of elections instead of the will of the people.
David Schultz, Professor
David Schultz (Ph.D. political science, JD) is Hamline University professor where he teaches government ethics, and a University of Minnesota law professor where he teaches election law, and is a senior fellow at the Institute of Law and Politics.
