[EL] Re How a great-great-granny could settle the voter ID issue
Rick Hasen
rhasen at law.uci.edu
Tue Jul 24 11:07:21 PDT 2012
I addressed this question briefly in a few blog posts:
http://electionlawblog.org/?p=31719
http://electionlawblog.org/?p=32623
http://www.politico.com/arena/perm/Richard_Hasen_D882E526-3599-4C82-9A7D-21A65E2C8281.html
I discuss the issue more extensively in /The Voting Wars
<http://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300182031/ref=sr_1_cc_2?s=aps&ie=UTF8&qid=1329286945&sr=1-2-catcorr>.
/Here's a brief excerpt, which discusses the "nuns" incident:
Why was it so hard for the Indiana challengers to find actual voters
hurt by the Indiana voter identification law?One possibility, and the
most likely one, is that there are actually few voters, even poor and
elderly ones or those on Indian reservations, who actually lack (and
cannot afford to obtain) some form of government-issued identification
or a birth certificate, which could be used to get a free identification
card and who actually want to cast a ballot.As Judge Posner noted,
people use an identification card to do just about everything these
days, from flying to cashing a check, and many poor people would do what
they could to get a valid identification card.(Strictly speaking, it is
possible to fly and cash a check without an i.d., but most of the new
voter i.d. laws don't allow you a way around the requirement unless you
qualify for a religious exemption or meet an old age requirement.)
Another possibility is these voters are out there, but it was too hard
to identify them as the law was just being rolled out.Soon after the new
law went into effect, the Associated Press reported on twelve nuns in
their 80s and 90s who were turned away from voting by a fellow sister
serving as a poll worker:
Sister Julie McGuire said she was forced to turn away her fellow sisters
at Saint Mary's Convent in South Bend across the street from the
University of Notre Dame because they had been told earlier that they
would need [a photo] ID to vote.
The nuns, all in their 80s or 90s, didn't get one but came to the
precinct anyway.
"One came down this morning, and she was 98, and she said, 'I don't want
to go do that,'" Sister McGuire said. Some showed up with outdated
passports. None of them drives.
They weren't given provisional ballots because it would be impossible to
get them to a motor vehicle branch and back in the 10-day time frame
allotted by the law, Sister McGuire said. "You have to remember that
some of these ladies don't walk well. They're in wheelchairs or on
walkers or electric carts."[i] <#_edn1>
This incident made great PR for the anti-voter identification
forces---it is hard to imagine these octogenarian nuns serving as the
front for an ACORN-inspired voter fraud scheme---but how many others in
Indiana would be similarly disenfranchised?In fact, the nuns did not
need to get an i.d. from the motor vehicles bureau or file a Declaration
of Indigency with the county: because they were over 65, they could have
voted from the convent without proof of excuse, using absentee ballots.
Beyond anecdotes, evidence developed after /Crawford /showed at most a
moderate problem with Indiana's new law. Professor Mike Pitts, of
Indiana University's law school, and one of his students looked at all
the people who filed provisional ballots in the 2008 elections in
Indiana.Though the authors faced serious problems in collecting accurate
data, they found that of the 2.8 million Indiana voters casting ballots
in that election, 1,039 showed up at the polls without valid
identification and cast provisional ballots, and of those, 137
ultimately had their ballots counted. (Note how the number of
potentially disenfranchised, even if very small, swamps by many times
the number of cases of proven voter impersonation fraud!)[ii] <#_edn2>
It wasn't clear how many of those 1,039 just forgot their
identification, said "what the hell," and didn't bother to go back home
for their i.d. before showing up at the county board of elections.And it
wasn't clear how many lacked valid identification but did not want to or
could not spend the resources to get to the county board within 10 days
of the election to file a Declaration of Indigency.We also don't know
how many of those voters produced identification after the fact but
failed to persuade authorities to count their ballots.
Pitts' numbers were limited in another important way, as he readily
acknowledged.They measure only those people who actually bothered to
show up to vote without identification, and do not include would-be
voters without identification who were deterred by the law's
requirements and didn't come to the polls.If you don't have the
necessary i.d., and you know you won't go to the county board to fill
out a Declaration of Indigency---or are unaware that this is an
option---why bother to show up?
It is easy to make sloppy empirical arguments about the effect of voter
id laws on voter turnout.Indiana Secretary of State Todd Rokita, a
driving force behind Indiana's law, used the overall increase in voter
turnout since the adoption of the requirement to argue that the law
actually increased turnout.But such thinking confuses correlation with
causation.No valid study I've ever seen shows that voter identification
laws increase turnout.[iii] <#_edn3>
On the other side, a number of empirical studies, using data from public
opinion surveys, show a modest depression of turnout, perhaps 1 to 2
percentage points, in states with tough voter identification
requirements.But political scientists Robert Erikson and Lori Minnite
(both of whom oppose voter i.d. laws) argue that there are simply not
enough data to know if and how voter identification laws affect turnout.
They conclude that we should be wary of empirical claims from all
sides.[iv] <#_edn4>
We know even less about the new wave of voter identification laws coming
before the 2012 elections, such as Texas' law, which does not allow
students to use their student ids as proof of identity to vote.Many
students move to Texas for college, establish state residency and intend
to live there indefinitely---making them constitutionally entitled to
vote---but do not drive and therefore do not have a Texas driver's
license.If the state makes it hard for students to obtain identification
cards other than drivers' licenses, the law could make a real dent in
voting by students, a group that voted heavily for Democrats in 2008.
When it comes to voter identification laws, then, it seems reasonable to
conclude that at least some Republicans favor them because they believe
they will suppress the Democratic vote, and some Democrats oppose them
for the same reason.The Democratic concern is not just with people who
can't get i.d. but those "what the hell" voters who will forget their
i.d. and not go back to vote.Mario Gallegos is not a saint; he is
worried about Texas's voter i.d. law costing Democratic seats.
Other supporters of voter identification laws push the issue out of a
genuine concern about voter fraud or because it is a "wedge issue" in
elections, sometimes with racial overtones.But regardless of intent, we
do not know how such laws will actually affect voter turnout.
The best argument against voter identification laws is not that they
will have a large effect---they most likely won't---but that such laws
are unnecessary to prevent voter fraud, and in a razor-thin election, we
cannot dismiss the partisan ramifications of disenfranchising even a
small number of voters for no good reason.This is especially true
because election administrators may administer voter i.d. laws in a
discriminatory manner. Further, even if the laws had no partisan effect,
they still disenfranchise voters for no good reason. And the constant
refrain about the need for an i.d. to combat fraud may undermine
confidence in our elections.[v] <#_edn5>
------------------------------------------------------------------------
[i] <#_ednref1>Deborah Hastings, /Indiana Nuns Lacking ID Denied at Poll
by Fellow Sister/, AP, May 6, 2008,
http://www.breitbart.com/article.php?id=D90GBCNO0&show_article=1.
[ii] <#_ednref2>Michael J. Pitts & Matthew D. Neumann, /Documenting
Disfranchisement: Voter Identification During Indiana's 2008 General
Election/, 25 Journal of Law and Politics 329, 340-43 (2009),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465529.
[iii] <#_ednref3>Press Release, "Secretary of State Statement on New
Photo ID Lawsuit," Official Website of the Indiana Secretary of State,
June 20, 2008, http://www.in.gov/sos/elections/2850.htm; Justin Levitt,
/Still Jumping to Conclusions/, Brennan Center for Justice Blog, January
30, 2009,
http://www.brennancenter.org/blog/archives/still_jumping_to_conclusions.
[iv] <#_ednref4>Robert S. Erikson and Lorraine C. Minnite, /Modeling
Problems in the Voter Identification-Voter Turnout Debate/, 8 Election
Law Journal 85 (2009),
http://www.columbia.edu/~rse14/erikson-minnite.pdf
<http://www.columbia.edu/%7Erse14/erikson-minnite.pdf>.
[v] <#_ednref5> Rachel V. Cobb, D. James Greiner, & Kevin M. Quinn, /Can
Voter ID Laws Be Administered in a Race-Neutral Manner?/ /Evidence from
the City of Boston in 2008/, Quarterly Journal of Political Science
(forthcoming), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1625041.
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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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Pre-order The Voting Wars: http://amzn.to/y22ZTv
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