Voter ID: A Tempest in a Teapot That Could Burn Us All


Two ideological camps are in a bitter struggle over voteridentification rules. The issue receives an airing in the SupremeCourt this week. Neither side in the voter ID dispute has a lot offacts behind its arguments, but the quarrel is not likely to endsoon. Proponents of liberty should beware of one thing: If anational voter ID requirement takes hold, such a system would because for regret across the ideological spectrum.

It has become an article of faith among many Republicans andconservatives that voter fraud is a significant problem or at least asignificant threat. “Voter fraud” is what occurs when ineligiblepeople vote or eligible people vote in more than one jurisdiction.This is distinct from “election fraud,” where the counting orreporting of votes is corrupted in any number of other ways. Voterfraud, the conservative camp believes, skews elections in favor ofliberals and Democrats.

Liberals and Democrats believe just as firmly that efforts tosecure voting processes more tightly, such as voter IDrequirements, seek to suppress the vote of their traditionalconstituencies. They believe that toughened voter ID laws will skewelections in favor of Republicans and conservatives.

This dispute is unlikely to recede. Political animals will holdthe hotly contested 2000 presidential election astheir strongest election memory for a generation. Modernelectioneering processes will increasingly heat the debate as well.Information-driven campaign techniques — sophisticated polling,“micro‐​targeted” messaging and get‐​out‐​the‐​vote efforts‐ will allow the political parties to tune their campaigns morefinely, seeking tighter victories so they can use resources moreefficiently. This increases the chance that small irregularitiesincluding voter fraud could affect outcomes.

A couple of broader policy efforts also stoke these fires.Increasing voter participation has been a policy fetish for thelast decade or two‐​never mind whether more voting for its own sakemakes a better democracy. The “Motor Voter” law, passed in 1993,has pushed voter registration materials at new and re‐​registeringdrivers, with dubiousresults, including increased chances of voter fraud. (It is anunfortunate practice, using driver licensing bureaus for mission‐​creepypurposes.)

The growth in absentee balloting has undone some of theprotections against voter impersonation and multiple voting thatpreviously existed. People are much more reticent to commit fraudin person‐​it’s riskier‐​so in‐​person voting was a natural securityagainst impersonation fraud. Voting in multiple jurisdictions issimply too time‐​consuming to do on any scale when it has to be donein person.

There have been registration frauds‐​canvassers in bigelectioneering pushes have signed up anyone and everyone, forexample, the living and the dead. But proven instances of peoplegoing into polling places unqualified to vote, masquerading asothers, or in multiple jurisdictions‐​these have been few and farbetween. As Loyola Law School professor Richard Hasen points out, a lot of attention is being paid to votingirregularities. Absentee ballot fraud and vote‐​buying schemes havebeen found, while impersonation voter fraud has not. Impersonationfraud on any scale is as hard to conceal‐​it requires a lot ofcoordination. The strong inference is that there is not much of ithappening.

Were there evidence of routine or systematic voter fraud, itmight be appropriate to establish systematic measures to counterit. As in all policy decisions, the steps taken to counteroccasional voter fraud or the threat of it must be balanced againsttheir costs.

The state of Indiana instituted a strong voter ID requirement in 2005. In theCrawford v. Marion County Election Board case being arguedbefore the Supreme Court this week, the ACLU and NAACP claim thatIndiana’s voter ID requirement will disenfranchise the poor and theelderly. On the margin, it probably will, but none of the partiesin the case are people who have actually been dissuaded orprevented from voting. The case might be better left to ripen untilan individual can claim that he or she was disenfranchised by thelaw. If that happens, the logic and consequences of the Indiana lawshould be put under rigorous scrutiny.

But another concern with voter ID is the registration andtracking system that might be dreamt up to implement it. In 2005,the Commission on Federal Election Reform (known as the“Carter-Baker Commission”) issued a report finding “no evidence ofextensive fraud in U.S. elections or of multiple voting,” though itsometimes does occur and could affect a close election. To inspireconfidence in the system, the commission recommended using thenational ID card created by the REAL ID Act as a voter registrationcard. (Learning more about REAL ID, at least one member of thecommission backed away from that recommendation.)

A national registration system for voting would quickly berepurposed and used for many other kinds of regulatory control.There is no shortage of proposals for national registrationand control of citizens. Should the voter ID tempest in ateapot boil over, the tiny specter of voter fraud could thrust amandatory national ID into the hands of law‐​abiding citizens.

The Constitution gives Congress power to regulate the elections that select its membersand, to a lesser degree, the president. But Congress does not haveto use that power to its fullest extent. States recognize their owninterests in fair elections, and they should experiment amongthemselves with ways to secure elections while making sure the voteis available to all qualified people.

There will never be a “perfect” voting process. Striking thebalance between security and access involves tradeoffs. Top‐​downattempts to perfect voting processes could be quite damaging toAmericans’ liberties.

The qualifications to vote are typically residency in therelevant jurisdiction, attainment of a certain age, sufficientmental capacity, and absence of a felony conviction. Thesecredentials can be proven without identity cards and databases, orwith tightly minimized documentation and recordkeeping. To ensurethat American voters enjoy their franchise in a free country,clumsy voter ID rules should be avoided. A national voter ID systemshould be taken off the table entirely.