Republicans Urge Supreme Court to Allow Preemptive Strikes in Elections
A new legal strategy that allows states to pass repressive election laws in the name of fighting voter fraud -- even if there is scant evidence such fraud exists or threatens election outcomes -- is emerging before the 2008 election, and the Department of Justice's Voting Section appears to be its biggest champion.
In legal briefs filed at the Supreme Court before a January hearing over the constitutionality of Indiana's 2005 voter I.D. law, the Department of Justice and other defenders of the ID law are making several new arguments that, if accepted by the court, would allow states to create barriers to voting without showing these laws address real problems.
Most significantly, the Justice Department is seeking to apply the principle of "pre-emption," or acting now to offset future threats -- as the Bush Administration argued before invading Iraq -- to voting rights. When applied to elections, the Department said there does not need to be evidence of actual voter fraud, or individuals impersonating other voters, before states can pass new laws to police that possibility.
"There is no requirement that the State show evidence of past in-person voter impersonation for the State's interest in preventing such fraud to qualify as important," the Department of Justice wrote in its brief. "A state need not wait to suffer harm; it can adopt prophylactic measures to prevent it from occurring in the first place. This is particularly true in a situation, like voter fraud, where the temptation is obvious and the consequence of undeterred and undetected violations are enormous."
Opponents of Indiana's voter ID law, which range from the state's Democratic Party to virtually every major voting rights group in the country, say the actual occurrence of voters impersonating other voters is anything but enormous. Rather, it is so rare and politically insignificant that it almost never affects election outcomes, especially in regional or statewide contests.
However, since 2004 various states with GOP-majority legislatures, including Indiana, have passed tough new laws that restrict voter registration and require stricter voter ID. The most significant feature of those new laws is they target a state's entire electorate, not the few individuals who may try to game voting for personal or partisan gain. The Justice Department's endorsement of these unnecessarily stringent restrictions is what bothers voting rights activists who want to see as many Americans as possible vote.
"It is unfortunate to see our government institutions formed for the purpose of protecting voters coming down on the side of vote suppression," said Wendy Weiser of New York University Law School's Brennan Center for Justice. "The Department of Justice is taking an extreme legal position, which, if accepted, would mean that there could be virtually no challenges to laws suppressing the votes before an election."
Indiana's voter ID law is coming before the Supreme Court in a challenge over the law's constitutionality, specifically whether it disenfranchises poor and minority voters. That makes the case a bellwether for those in American politics who want voting to be a more open and inclusive process, and for those who want to limit electoral participation. The Indiana law requires virtually all voters to have a state-issued photo ID. The state has created difficult bureaucratic hurdles for people lacking documentation to get that ID.
But extending the doctrine of pre-emption to state election law is only part of the new and emerging strategy coming from Republican ballot security activists. Another argument in the Supreme Court briefs supporting Indiana's law is to apply a standard from the Court's landmark 1976 ruling on campaign finance, Buckley v. Valeo. This argument posits that states can adopt rules like tough voter ID laws because it will prevent the appearance of corruption associated with voter fraud.
In Buckley, the Court said campaign donations could be regulated to stop the appearance or occurrence of corruption. Thus, some of the same right-wing activists who spent years creating and publicizing a myth of widespread voter fraud -- and convinced many GOP-majority legislatures to pass voter ID laws as one response -- are now claiming there is a public perception that voter fraud is corrupting elections. Citing Buckley, they say that perception of potentially corrupted elections is yet another reason why states should be allowed to police the voting process with new restrictions such as voter ID laws.
"Even more than in the political-campaign context, government is right to worry that confidence in the legitimacy of elections may erode based solely on "'public awareness of the opportunities for abuse,' Buckley, 424 U.S. at 27," wrote Indiana Attorney General Steve Carter, in the state's most recent brief, citing the 1976 ruling. "Such opportunities are transparently obvious in elections without identification checks."
Applying Buckley's anti-corruption edict to the voter ID debate is troubling, said David Becker, a former Justice Department voting rights attorney and now the director of People For the American Way's democracy program.
"I think it's difficult to contend that the corruption money brings into the political process is the same as the potential disenfranchisement of hundreds of thousands of eligible voters," he said. "This is comparing the rights of people to give money to politicians to the rights of poor and minority voters to be free of barriers to the polling place."
Speaking of the public perception concerns, Becker said, "The main reason there is a lack of confidence (in the voting process) is because those supporting these restrictive ID laws have gone about creating that fear."
The reason supporters of Indiana's voter ID law are shifting to new legal rationales that ignore the factual extent of actual voter fraud is because these partisans have been losing in the court of public and academic opinion, Becker and others said. They cite numerous recent studies -- in academia and government -- that have debunked the assertions that voter fraud is a significant threat requiring stringent legal responses.
But these latest arguments are shrewd and may resonate with the Supreme Court. That is because the Court, in a little-noticed 2006 ruling affirming Arizona's 2004 voter ID law, accepted and used the assumptions and rhetoric of the GOP's voter fraud movement.
In that ruling, Purcell v. Gonzales, the Court stated, "Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."
In Purcell, the Court did not examine if there was evidence of widespread voter fraud, or explore if such voter ID laws were onerous. The Indiana case will certainly be different in that regard, as dozens of amicus briefs have been filed on both sides. The most recent legal brief by The Brennan Center, Demos, People for the America Way, and Barnard College Professor Lorraine Minnite, responded to Purcell, saying:
"But nothing could be more damaging to the confidence in the integrity of our electoral system that if such fears were generated by baseless claims of voter fraud that are being exploited to gain support for unnecessarily stringent identification requirements that suppress voting by low-income and minority citizens."
A more plain-spoken analysis came from Harvard University History Professor Alexander Keyssar, in his much-circulated comment on Purcell, where he said, "feel disenfranchised? Is that the same as 'being disenfranchised?' So if I might 'feel' disenfranchised,' I have a right to make it harder for you to vote?"
That, apparently, is exactly what the Justice Department and state of Indiana are arguing.