Tuesday, July 24, 2012

A solution in search of a problem

On the eve of a high profile trial challenging Pennsylvania's new voter id law, the state has admitted that they have no evidence of any real problem the law was designed to address. Specifically, the parties have stipulated in advance of trial  that there “have been no investigations or prosecutions of in-person voter fraud in Pennsylvania; and the parties do not have direct personal knowledge of any such investigations or prosecutions in other states.” Further, the state has agreed  that they “will not offer any evidence in this action that in-person voter fraud has in fact occurred in Pennsylvania and elsewhere.” The state even agreed that they will not argue “that in person voter fraud is likely to occur in November 2012 in the absense of the Photo ID law.”

Why do litigants agree to stipulations such as these? Usually because a stipulation will soften the blow for the party making the admission. In other words, the state's attorneys would rather admit that they have no evidence of voter fraud, than give the other side the opportunity to introduce evidence of a lack of voter fraud. This should mean that the state has the burden of justifying the likely discriminatory effects this law is going to have on the poor, the elderly, and minority voters by relying solely on hypothetical and undocumented threats to the integrity of the voting process. This is the wonderful thing about courts and the legal system for which we should really show more appreciation. In court, you can't just waltz in and say whatever the hell you want. You have to prove it. And if you can't prove it, you have to admit that you have no evidence to support what you are saying.

The plaintiff in the case is Vivette Applewhite, a 93 year old woman who has no driver's license or other id but has been voting regularly for more than 50 years. To people who say it's not such an imposition to require the poor and the elderly to go get a picture id, my response is, why should they? This woman has a right to vote. She shows up every year to her precinct, where the poll workers undoubtedly recognize her and happily hand her a ballot. To suggest that Ms. Applewhite should be turned away this year because a bunch of state legislators have dreamed up a new hoop she should have to jump through to vote, is an insult to people like Ms. Applewhite, and an outrageous assault on our most important right. And these (mostly) Republican legislators who have been so eager to adopt these requirements are supposedly so distrustful of the government! Yet they want to allow the government to take away the most precious tool for maintaining our freedom from anyone who doesn't have the time, the inclination or the ability to obtain some government-issued paperwork.

If the state of Pennsylvania wants to institute a new fraud prevention system, to guard against threats they are unable to substantiate, they ought to go door to door to make sure that people like Vivette Applewhite get whatever papers are needed. And they ought to apologize to her for the inconvenience of having to answer the door to receive that paper. Vivette Applewhite should not have to lift a finger to get more proof that she is eligible to vote. It should be more than enough for her to get herself down to the polling station. As a matter of fact, the state should probably be providing free rides to help the sick and the elderly do that.

But we know that these voter id laws were not designed to make it easier for people to exercise their right to vote. They were designed for the opposite purpose. And at least one state legislator was candid enough to admit the legislators' real motives.




15 comments:

  1. << Vivette Applewhite should not have to lift a finger to get more proof that she is eligible to vote. >>

    You seem to know Vivette's situation pretty well. Discussing 'more proof' means she must have supplied some proof at one time. Leaving aside voter ID the day we vote, I am curious, specifically, what proof did she supply 50 years ago that made her eligible to vote?

    Secondly, and a separate question about registration; what proof of identity and citizinship do you think any of us should be required to produce to register to vote?

    We could use our children as an example if you like.

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    1. The reason we require voter registration in advance of election day is to allow anyone to challenge any prospective voters' eligibility to vote. For that reason, there should be no need to present any "proof" of eligibility other than your face, your name and your address.

      In some of the newer democracies, you do not even have to register. You just show up on election day and get your finger dipped in indelible ink to prevent you from voting twice. I could make a strong argument that that is a better system than we have because it encourages more democracy.

      The problem in our country is that a lot of people don't even take the trouble to register to vote, because it is too much trouble. And about half of even registered voters don't show up on election day. That is the problem we should be trying to fix. We don't need to be thinking up new ways to make it even more difficult for people to vote.

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  2. But what proof of identity and citizinship do you think any of us should be required to produce to register to vote?

    Quoting you:

    << The reason we require voter registration in advance of election day is to "allow anyone to challenge any prospective voters' eligibility to vote". >>

    Then why, if anyone can challenge prospedctive voter's eligibility, is the DOJ getting involved when some states are challenging registered voters because they are dead or non citizen?

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    1. If you're talking about Florida, they weren't just challenging voters' eligibility, they were just wholesale removing lots of people from the rolls, lots of whom were eligible to vote.

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  3. In his interview on CNN the other evening, Scalia observed that "voting isn't a right, its a privilege". Disagreement on that statement pretty much sums up the whole debate regarding voter ID, doesn't it?

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    1. If he had made that statement during his confirmation hearings, that should have disqualified him from serving on the Supreme Court. Not only is voting a right, it is according to numerous Supreme Court cases a fundamental right.

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  4. Joe, you didn't answer either of my questions.

    Adam, voting is a right after we you legally register. It is a right that can be taken away from felons. Our vote is null and void if we do not follow specific procedure. People like you and I and Joe consider it our duty to vote as well as a privilege. Like Joe, I consider it my responsibility to increase legal voter turn out and I want my vote to matter. The buying of votes in Kentucky really pisses me off. Busing old folks to the polls or legally registering them is righteous.

    I have a 24 and 21 year old daughter. When they became old enough they had the potential to have the right to vote. But one of them didn't realize her right to vote because she didn't register. It turns out she didn't have the right to vote, she didn't see it as her duty and didn't get the privilege to participate. Today, she has the right to vote. Today she has the right, the sense of duty and the privilege.

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    1. This comment has been removed by the author.

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  5. Sorry, I shouldn't attempt to speak for either of you as you may not consider voting a duty and privilege as well as a right.

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    1. You are free to consider voting a duty as well as a privilege, but legally speaking, that would not be accurate.

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    2. I appreciate the legal review. While we are at it, legally, what proof of identity and citizinship do you think any of us should be required to produce to register to vote?

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    3. I am not going to get into an argument with you about that, because whatever I suggest, you will be able to think of a hypothetical situation where someone who is not eligible could potentially register.

      And my answer to that would be that registration fraud is not a significant problem. And that maybe registration to vote is not even necessary at all. I did five minutes of legal research and found that we have at least one state (North Dakota) that does not require people to register at all in order to vote. And about six more states that allow registration on election day.

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  6. I wasn't asking the question for the opportunity to argue with you or raise hypothetical ways to cheat our system. I am interested in your opinion. I think you know more than I do on this subject. It's not a gotcha question. I am not part of a frantic population that thinks you need to see things my way or hit the highway. You are becoming hypersensitive.

    I think I am correct in saying that in California we don't need to show proof of citizenship or ID to register. We are required to sign under penalty of purgery. California Elections Code section 2111 permits a person to prove they are a citizen who is eligible to register to vote by signing the affidavit of registration under penalty of perjury. Then, as you say above, that right might be challenged.

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    1. Sorry for seeming hypersensitive, but you kept after me even though I thought I had answered your question in my first reply above.

      Truthfully, I have no idea how I would design the registration system if it were up to me. I just don't think we need to be spending any time thinking up new ways to make it more difficult for people to vote.

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  7. Here in New Jersey, the only evident purpose of advance voter registration is to (1) shorten the voter vetting process on election day, (2) provide the County with a handy list of potential jurors, and (3) offer a handy free listing service to political robo-callers.

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