[EL] Re How a great-great-granny could settle the voter ID issue

Tue Jul 24 10:35:15 PDT 2012

All of the litigation that I'm aware of thus far has involved 
pre-enforcement challenges.  They have, yes, presented several 
individual witnesses who allege facts, in sworn statements, showing lack 
of access (there are also non-sworn accounts in amicus briefs).  These 
accounts show a range of burden, from those who cannot afford underlying 
documents and/or many miles of travel to a state office beyond normal 
public transit routes, to individuals with incorrect names on their 
birth certificates or mismatches between social security cards and birth 
certificates that have kept them from getting ID for years despite 
repeated attempts.  They don't involve people who have actually been 
precluded in the past tense from casting ballots, because they've all 
been pre-enforcement challenges.

There have only been two states that have held elections in which voters 
are precluded from casting a valid ballot without specific photo ID: 
Georgia and Indiana, in 2008 and 2010.  Mike Pitts has done outstanding 
<http://ssrn.com/abstract=1465529> work 
<http://ssrn.com/abstract=1287735> following up on provisional ballots 
cast in those Indiana elections, but as he reports, there are legal 
hurdles to identifying the individuals involved (e.g., 42 U.S.C. § 
15482(a) (''Access to information about an individual provisional ballot 
shall be restricted to the individual who cast the ballot.'').  So it's 
not possible to identify individual eligible, registered voters showing 
up at the polling place on election day who do not have the required ID 
from election records, at least.

That's as to the data.  But there's also a philosophical limitation in 
measuring the impact of an ID rule based on past voters alone. As I've 
written (among other places, here 
<http://electionlawblog.org/?p=37008>), I'm not sure why the policy or 
legal impact of an election law should be measured by past voters.  
Imagine a law that legally precludes any eligible elector from voting in 
the future if he or she didn't vote in 2008. We know that a non-trivial 
number of those people have no real interest in voting in the first 
place.  But for me, that's not the right measure of the impact of the law.

Nor, to me, is absolute legal preclusion (like the example above) or 
even absolute practical preclusion ("_no_ means") the right measure of 
burden.  Burdens on fundamental rights across the board have generally 
been assessed in terms of _undue_ burden, not absolute burden.  That's 
been true in the election context (durational residency restrictions, 
poll taxes, excessive signature requirements for candidates) as well.

Justin

On 7/24/2012 9:26 AM, Derek Muller wrote:
> Dear all,
>
> There has been a good amount of discussion regarding the lack of proof 
> regarding actual in-person voter fraud. (On this, like my dear 
> colleague Mark Scarberry, I have been fairly convinced by the 
> well-thought discussions here and elsewhere on the subject.)
>
> But I have, I suppose, the mirror question (inspired by the National 
> Constitution Center run through Yahoo! that Rick linked to today): is 
> there any proof of the /lack of access /to voter identification? When 
> I read statements from the Brennan Center like "could impact" and "may 
> not have," I immediately revert to skepticism. And then I wonder about 
> other metrics--it may well be that "eligible" voters lack access to 
> voter ID, but it may also be that they're not registered or have no 
> real interest in voting in the first place; and when looking at 
> "registered voters," we know that those lists, despite our best 
> efforts, will always have a non-trivial number of ineligible voters 
> who remain registered (e.g., moved away, died, etc.), and a lack of 
> voter identification is, if anything, a good thing.
>
> So I wonder, has there been any actual circumstance in which an 
> eligible, registered voter showed up at the polling place on election 
> day; lacked voter identification; and had no means to obtain it? (I'm 
> looking at "no means," even if they were willing to pay handsomely for 
> it.) That is, on the litigation side, have there been any "as-applied" 
> challenges to the voter identification requirements? As in, 
> judicially-found facts, not simply allegations, that an eligible and 
> registered voter actually lacks access to the required ID? (Perhaps 
> there have been too few elections in voter identification 
> jurisdictions for us to have many tangible metrics, I admit.)
>
> It's, of course, possible that there are a number of individuals who 
> are intimidated or simply stay home because they lack the 
> identification; but, I suppose, the same could hold true for 
> undocumented instances of voter fraud. And this isn't to say that 
> voter ID laws might not suppress turnout (and I've followed the recent 
> discussions about the fairly uncertain statistical evidence). It's 
> just asking the factual predicate.
>
> I recall vaguely that a van of nuns tried to vote in Indiana recently, 
> but that they lacked IDs--not because they didn't have them, but 
> because they didn't bring them to the polls.
>
> The 93-year-old in Pennsylvania story is interesting, I think, because 
> it's not (I think) directly stating that the plaintiff lacks ID--just 
> that the plaintiff lacks the ability to obtain a birth certificate, 
> which she would use to obtain a /free/ ID (and the story has made 
> clear that she's paid for the birth certificate, even if it hasn't 
> arrived). So, I think there's some slight ambiguity in the facts (at 
> least as presented). And, this is for a /future/ election; I hope that 
> things straight out for her by November, and, hence, my question is 
> more historically-oriented.
>
> Any resources would be much appreciated. Thanks!
>
> (My apologies if this question has been answered in some of the other 
> discussions--I'm afraid I haven't handled my inbox very well this summer.)
>
> Best,
>
> Derek
>
> Derek T. Muller
>
> Associate Professor of Law
>
> Pepperdine University School of Law
>
> 24255 Pacific Coast Hwy.
>
> Malibu, CA 90263
>
> +1 310-506-7058 <tel:310-506-7058>
>
> SSRN Author Page: http://ssrn.com/author=464341
>
>
>     "How a great-great-granny could settle the voter ID issue"
>     <http://electionlawblog.org/?p=37355>
>
> Posted on July 23, 2012 9:29 pm <http://electionlawblog.org/?p=37355> 
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Yahoo Newsreports. 
> <http://news.yahoo.com/great-great-granny-could-settle-voter-id-issue-100208686.html>
>
>
>
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-- 
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321

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