Justice Department letter to Texas objecting to voter ID law

[SWTXBelle]

I would argue that the salient point is if it is a reasonable (Constitutional?) requirement to insure the validity of the vote - whether or not known fraud is a perceived problem. The problem with fraud is that if it is successful you will never know.

If the issue is cost/convenience of getting id then let's address THAT - it should not be cost prohibitive for the poor to be able to procure an id, which would have the added benefit of enabling them to more fully participate in society.

If the issue is the problems facing the elderly in need of id, perhaps they can be grandfathered in.

FYI - TX Id for those under 60 is $16 for 6 years; over 60 is $6 with an indefinite (in other words, no) expiration date. Fee waived for disabled veterans.

[Kevin]

Originally Posted by KSig RC

Pardon the super-douchey "quoting myself" bit ...

To explain a little further: if our claim is that there is no connection between ID fees and voting because you can provide non-ID documentation (that is free), then you've also just:

-Allowed somebody to steal a utility bill and use that to vote in the place of another.
-Created a cottage industry for anything reasonably resembling a birth certificate (I have two copies of mine, and one is so worn that there is no longer any sort of embossing/notarization).
-Check stubs? Anybody with a laptop and perforated paper can go to town.

So what on Earth does this sort of law actually DO? What is the purpose, other than weeding out lazy voters?

Are people really ready to argue that those who commit voter fraud are somehow even more lazy, and thus will be turned away in even bigger numbers? That seems insane on its face...

But if you have, for example, registered a bunch of fake names or the Dallas Cowboys offensive line as voters and intend to vote in their place, obtaining these documents is going to not be impossible, but it's going to be a lot more trouble than it's worth. Your objections more prove my point that not only could you probably falsify the documents you want to use (for free), the ID requirements do not make free identification very hard to get at all.

Having all of these other documents work to satisfy the requirement of ID does sidestep the cost argument. Those documents either have been issued to you at one point for free or are being issued to you every month.

If you can't get something on that list, you have bigger problems than voting. Ensuring the validity of the vote exceeds the nominal trouble some nominal minority of voters will have to go through in order to vote.

I doubt the Justice Dept. is successful here.

As for Mysticat's argument that those advocating for this have the burden, isn't it true that we presume things flowing from the legislative process to be constitutional? Isn't it then the other way around--that either the opponents have to show that this requirement conflicts with the 24th Amendment or is in somehow in violation of equal protection?

[KSig RC]

Originally Posted by Kevin

But if you have, for example, registered a bunch of fake names or the Dallas Cowboys offensive line as voters and intend to vote in their place, obtaining these documents is going to not be impossible, but it's going to be a lot more trouble than it's worth.

Having all of these other documents work to satisfy the requirement of ID does sidestep the cost argument. Those documents either have been issued to you at one point for free or are being issued to you every month.

If you can't get something on that list, you have bigger problems than voting. Ensuring the validity of the vote exceeds the nominal trouble some nominal minority of voters will have to go through in order to vote.

This is exactly my issue though - "more trouble than it's worth"? We don't even have any idea of whether voter fraud of the type you've noted is widespread - how can we have any idea of how much "trouble" those willing to defraud the vote will go through?

Beyond that, I love how the number potentially disenfranchised is "nominal" but we have a tight handle on how much trouble people will or won't go through to commit fraud.

Either way though, you're vastly overstating the difficulty of coming up with a reasonable-looking utility bill or pay stub. I just checked, and Word2010 has templates that would allow me to print my own, right now. There's no "deterrent" effect if you allow those other forms of (free) identification, and clearly those are included to attempt to remain Constitutional. Nobody at a polling place will be able to say "wait, that's not a valid paystub!" or "that water bill looks Photoshopped!"

Even if you stick to state IDs, you can show out of state ID, or college ID! You could fake those from the public library. Literally, you.

So again, quite simply: what exactly is this law doing? Those who wish to vote fraudulently still can, easily (and that's assuming there is even widespread fraud to begin with). Some people, though, just don't get to vote.

Saying "well, too bad for them, they should have ____" is pretty poor - it's kind of a fundamental right.

[Kevin]

Originally Posted by KSig RC

Saying "well, too bad for them, they should have ____" is pretty poor - it's kind of a fundamental right.

So applying Crawford v. Marion County Election Board, 553 U.S. 181 (2008), the distinguishing factor between the two cases is that Indiana's driver's license is free. However, Texas has a number of ways you can get a voting certificate or even vote without one by signing an affidavit at the polling place and providing some form of ID, many of which are free.

Do you think to be constitutional, Texas must provide free state-issued IDs when a number of others work and when the cost isn't great enough in any cased to really put anyone out?

I don't buy that it's a poll tax. It can't be if there are so many ways to circumvent having to pay for an ID or anything else.

[PiKA2001]

Originally Posted by KSig RC

This is exactly my issue though - "more trouble than it's worth"? We don't even have any idea of whether voter fraud of the type you've noted is widespread - how can we have any idea of how much "trouble" those willing to defraud the vote will go through?

Well, in the same token how can you or anyone say that there are so many legit voters that are so down-trodden that they don't have any form of ID or utility bill or pay stub YET they conveniently have a voter registration card?

FYI- in TX you need to bring your voter registration card to the polls in order to vote and if you forget to bring it or don't have it you have to show your....yup, ID or pay stub or utility bill in order to establish identity to vote.

As a side note, the local nightly news last week was showing clips of groups that oppose and support this measure doing their thing in Austin and the group featured opposing this law was an (illegal) immigrant advocacy group. Why this would even be an issue for them since immigrants can't vote (i'm sure they do though) made me go hmmmmmm....

[KSig RC]

Originally Posted by PiKA2001

Well, in the same token how can you or anyone say that there are so many legit voters that are so down-trodden that they don't have any form of ID or utility bill or pay stub YET they conveniently have a voter registration card?

I agree - we can't know for certain how many would be disenfranchised. When there is massive uncertainty on both sides, though, I feel it's best to err on the side of protecting rights, rather than limiting them.

[KSig RC]

Originally Posted by Kevin

Do you think to be constitutional, Texas must provide free state-issued IDs when a number of others work and when the cost isn't great enough in any cased to really put anyone out?

In the specific instance of Texas, I think the alternative use of freely-available ID methods circumvents the poll tax issue.

I also think it makes the entire law superfluous (at best), at least with regard to its stated intent, because the use of those specific documents as freely-available ID makes it essentially impossible that the law would actually prevent any significant amount of fraud.

The best-case scenario is, essentially, another garbage law cluttering the books. How "small-government" of us.

The worse, of course, is semi-targeted barriers to voting.

The law is seemingly either unnecessary or unconstitutional, depending on intent and implementation.

[Kevin]

Originally Posted by KSig RC

The law is seemingly either unnecessary or unconstitutional, depending on intent and implementation.

It's quite a leap to go from saying that these documents are possibly falsifiable to saying that the law doesn't help alleviate potential voter fraud or that there is absolutely no effect on the integrity of the vote either way.

I acknowledge it's not hard to falsify a utility bill. However, to do it for the entire Dallas Cowboys offensive line (a famous example of false voter registrations by ACORN), is going to be at least something of a barrier.

That isn't to say it wouldn't be all that difficult to falsify lots of utility bills and such in order to commit voting fraud, it's just that in this case, there'd be a lot more evidence of the wrongdoing and authorities might therefore actually have some success in investigation.

The Crawford case, if you're passing on the poll tax issue as being successfully circumvented, goes right to the constitutionality of the statute. Whether it's a good idea or not, I dunno. As strongly as the left has come out against this, I have yet to see any Americans who have really been disenfranchised. It almost seems that the left is trying to protect the ability to commit voting fraud.

[KSig RC]

Originally Posted by Kevin

It's quite a leap to go from saying that these documents are possibly falsifiable to saying that the law doesn't help alleviate potential voter fraud or that there is absolutely no effect on the integrity of the vote either way.

I acknowledge it's not hard to falsify a utility bill. However, to do it for the entire Dallas Cowboys offensive line (a famous example of false voter registrations by ACORN), is going to be at least something of a barrier.

So it's easy to falsify a utility bill, but hard to falsify five such bills? I just don't see how there is anything other than an economy of scale here - there's really no substantial difference in falsifying any number once you have the first, given the technology (a laptop computer, a printer) in use.

That isn't to say it wouldn't be all that difficult to falsify lots of utility bills and such in order to commit voting fraud, it's just that in this case, there'd be a lot more evidence of the wrongdoing and authorities might therefore actually have some success in investigation.

I disagree entirely that this even marginally increases evidence of any sort - nobody at the polling place is keeping the utility bill (just as they aren't keeping the ID shown) or whatever document is shown.

It would be the same situation you have now - those who organize and perpetrate the fraud slink back into the shadows.

I'd be all for a law that could unilaterally prevent voter fraud - but I have yet to see a law that has real "teeth" that doesn't simultaneously step on the toes of legitimate voters, and I don't think the trade-off is anything near worth it, given what we know (or rather, don't) about voter fraud.

[MysticCat]

Originally Posted by Kevin

As for Mysticat's argument that those advocating for this have the burden, isn't it true that we presume things flowing from the legislative process to be constitutional? Isn't it then the other way around--that either the opponents have to show that this requirement conflicts with the 24th Amendment or is in somehow in violation of equal protection?

As a general rule, yes. Statutes are generally presumed to be constitutional. But any legislature considering a law like this should surely think ahead to the lawsuit that will come.

If a law burdens a "fundamental" or "core" right -- and the right to vote typically is found to fit that bill, so it seems at least reasonable to predict that a court might find that it does so here -- then the presumption of constitutionality is lost, and the statute will only be upheld if the government can show that it is narrowly tailored to serve a compelling governmental interest. That's where the rubber would hit the road on needing to show that there actually is a problem and that voter ID will address that problem and goes no further than necessary to address that problem.

[Kevin]

Originally Posted by MysticCat

As a general rule, yes. Statutes are generally presumed to be constitutional. But any legislature considering a law like this should surely think ahead to the lawsuit that will come.

If a law burdens a "fundamental" or "core" right -- and the right to vote typically is found to fit that bill, so it seems at least reasonable to predict that a court might find that it does so here -- then the presumption of constitutionality is lost, and the statute will only be upheld if the government can show that it is narrowly tailored to serve a compelling governmental interest. That's where the rubber would hit the road on needing to show that there actually is a problem and that voter ID will address that problem and goes no further than necessary to address that problem.

See Crawford v. Marion County Election Board, 553 U.S. 181 (2008).

The only distinguishing factor is that Texas drivers licenses cost money. The only question is whether that fact, when taking into account that there are many other ways a citizen can prove their identity which don't cost money, is enough to distinguish from Crawford.

The SCOTUS has already upheld these sorts of laws in principle. It's hard to imagine that the Texas case will come out differently.

[DrPhil]

I just posted to say:

"ATTORNEY SPEAK" ALERT
"ATTORNEY SPEAK" ALERT

[MysticCat]

Originally Posted by Kevin

See Crawford v. Marion County Election Board, 553 U.S. 181 (2008).

The only distinguishing factor is that Texas drivers licenses cost money. The only question is whether that fact, when taking into account that there are many other ways a citizen can prove their identity which don't cost money, is enough to distinguish from Crawford.

The SCOTUS has already upheld these sorts of laws in principle. It's hard to imagine that the Texas case will come out differently.

I wouldn't say that was the only distinguising principle. A significant (I think, and based on my memory of Marion) issue in Marion was the lack of facts from either side. What you say about "in principle" is important. While Marion might stand for the proposition that ID laws would likely be found to be facially constitutional by SCOTUS, different facts could certainly lead to a finding that it is unconstitutional as applied* to specific plaintiffs. I think the Court left that door open.

Another thing that I think needs to be considered, at least in some instances, is that just because SCOTUS might find no violation of the federal constitution doesn't mean that state supreme courts couldn't or wouldn't find violations of state constitutions. I think there has been a trend toward state constiutional claims, and in my state at least, the Supreme Court has recently seemed willing to go further on equal protection-type claims under the state constitution than SCOTUS has gone. (Granted, maybe not in Texas.)

But beyond that, when I say that those who want to change the law "bear the burden" of showing the need for it, I don't just mean that in legal standard-type sense. I also mean it in a practical/legislative policy sense. I think as a general rule, those who advocate a change in the law bear the burden of showing why that change is needed and how the change will work.

As I've said upthread, I'm in a state that (currently) does not require IDs of any kind to vote, and there is no evidence of anything approaching widespread voter fraud. The use of regularly-updated computerized databases makes things like "dead people" voting much more difficult. To the extent there is fraud, it is primarily people attempting to vote twice, which no ID requirement would catch. So I need to be convinced as to why we would should to add an extra step at the polls, especially if it could work a hardship for some voters.


* The "as applied" is for DrPhil.