Does Intent Matter?

by G'Kar

Does the intent of those who create a law effect the constitutionality of that law? As always, below the fold to minimize the disruption of the front page.

The Supreme Court has granted certiorari for the combined case of Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita and will rule on the question of whether or not being required to present an picture ID to vote creates an unreasonable burden on voting. This is the kind of question that tends to rile people up in a hurry, in no small part due to nasty practices like poll taxes and literacy tests that were used for roughly a century to prevent blacks from voting in this country. Since a requirement to show an ID will fall disproportionately on the poor, and blacks are still disproportionately likely to be poor, these laws are likely to have similar (although presumably less pronounced) effects on minority voting as the aforementioned poll taxes and literacy tests.

Proponents of the law, from what I have seen (I'm too lazy to go diving through the blogosphere looking for links, sorry), tend to argue that laws requiring people to prove that they are who they say they are present a necessary guard against people voting early and often, or voting strategically (my father is convinced that large numbers of Chicago voters drive across the Wisconsin border on election day because Illinois is securely Democratic and Wisconsin is a swing state). In other words, they just want to stop voter fraud. This argument has solid surface appeal, since few (presumably only those who choose to engage in it) like the idea of people casting fraudulent votes. And, particularly since the blogosphere is inhabited largely by people hailing from the upper and middle classes, the idea that having to present your driver's license just to vote would in any way cause a problem for honest citizens seems, on the face of it, silly. We all have picture ID, after all. Just pull it out of your wallet and show it. 30 seconds, tops, and you're in the voting booth. For a lot of people, it's true that the requirement isn't a big deal at all. My state requires voter ID to vote, and on the rare occasions when I bother to vote, being asked for an ID doesn't bother me.

But there are plenty of people out there who do not have government-issued picture IDs. Some people never bother to get driver's licenses. If you're too poor to buy a car, it's quite possible you've never bothered to spend your hard-earned cash to bother with a driver's license. And while I believe that all states will provide a picture ID to citizens, even if the monetary cost is zero, the other costs are quite real. I've always had to slip out of work to get a new ID, for example, something that people who already may have trouble hanging onto a job may not be able to easily do. Then there's the question of documents. I don't have the first clue if I have a copy of my birth certificate floating around at home, and I suspect I'm far from alone in that particular bit of carelessness. Rounding up whatever documents you might require to get an ID is another cost, and especially when you're talking about the working poor, time is a very precious commodity. Add to all that the infamous efficiency and speed of the motor vehicle bureau and getting an ID will be time-consuming even if it doesn't cost you a dime. The bottom line is that getting an ID card simply isn't as simple for the poor as the middle class thinks.

Then there is the question of need. If there were evidence of a rash of voter fraud, there might be a better argument for a requirement to make voting harder. However, despite a lot of people looking very hard for it, signs of people voting early and often remain pretty tough to locate. Does this mean it's not happening at all? I'm sure that it does, to some small degree; absence of evidence is not evidence of absence. But I'll go out on a limb and argue that before putting this kind of obstacle in the way of voters, proponents of the law ought to have some hard evidence they can point to of the problem they're claiming to solve.

Having said all that, however, I'll now move on to the question I opened this discussion with: does a bad motive justify a court overturning a law? I ask because a judge in Indiana, in his dissenting opinion, wrote "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic." Now I'm sure that a lot of people voted for the law because they honestly believe that they need to guard against voter fraud; people believe things with a lot less evidence for them than that all the time, after all. But assuming that the judge is correct, does that fact make the law unconstitutional?

The law may, in fact, be unconstitutional, I'll note here. But I'm interested in discussing this specific aspect of the argument. And I suspect that specific statement isn't the argument for unconstitutionality being offered by the judge, or at least I hope not. But I'm using this issue as a springboard for a different discussion, so please bear with me.

While I don't particularly care whether or not people vote, since they have the most annoying habit of selecting candidates I dislike, I think it's wrong to pass laws designed to benefit your political party at the expense of any other. Having said that, I'm uncomfortable with courts using the idea that a law has bad effects or was passed for the wrong reasons to overturn it. The reasoning behind this should be simple enough: if courts can throw laws out simply because a majority of the justices believe the law is inappropriate, rather than simply unconstitutional, then our society moves further away from a system in which government rules through elected representatives and closer to an oligarchy where a small, unelected minority gets to decide what government may and may not do.

We are close to that in many respects already, granted. Courts often seem (although I suspect this is because outrageous cases get far more attention than the more common, but boring ones) to make decisions that use tortured constitutional reasoning to reach a result favorable to a majority of the court. Bush v. Gore comes to mind, where at least three of the seven justices (specifically, Rehnquist, Scalia, and Thomas) who found an equal protection violation in the recount requirements would, in my opinion, have been far less likely to find a similar equal protection violation in cases not involving a presidential election (and no, I can't prove that, but I don't think I'm going too far out on a limb to argue that, as a general rule, conservative jurisprudence is less friendly to equal protection claims as a general rule).
But at least under the current scheme, justices have to try to tie their preferences to the Constitution as written, and there is a basis for dispute.

I bring all this up because there are occasions when it seems to me that people argue that a law ought to be overturned based on the fact it is a bad law, without considering whether or not it is a constitutional law. That distinction seems to matter to me. Perhaps I'm arguing against a phantom; I am, as I noted above, too lazy to go find a cite for this. Still, I'd be interested in hearing other opinions about the importance of whether or not a law is a good law in how a court rules.

Comments

[KipEsquire]

The current state of the litigation makes it clear that the government must provide a free ID in order for the requirement to avoid the "poll tax" problem. I have no doubt that the Supreme Court will at least adopt that rule.

Note also that there is an offset effect to voter ID laws: Anyone with a valid ID will be less likely to be turned away from the poll for other pretext (i.e., invalid) reasons.

As for "unconstitutional intent," your best source is the "latent discrimination" jurisprudence under the Equal Protection Clause -- a good primer here.

You might find Rogers v. Lodge, 458 U.S. 613 (1982), particularly relevant.

[Bruce Baugh]

It certainly seems to me that some kinds of intent should count in considering constitutionality - when folks are on record with the desire to deprive some class of people of a right, that ought to be a factor in deliberations. I wouldn't make it decisive, necessarily, but available for consideration? Sure.

But as you note, the big thing with the ID laws is that the alleged problem doesn't exist. I have confidence that if there were widespread vote fraud of the sort alleged, the Justice Department would have the evidence by now - they're certainly looking hard enough. But nope, the evidence isn't there, while the very real problems of other sorts of vote tampering and unreliability go unaddressed. That's part of why I think motive should be a concern. "We're trying to protect the integrity of voting" is a plausible enough claim, but then it gets tested against (for instance) the continued use of proven unreliable and insecure machines and statements about hitting the other party where it counts, and then there's reason to say "Oh yeah?"

[Incertus (Brian)]

Whenever people start talking about authorial intent, I always check for my wallet--it comes from hearing people (fellow poets, students, etc.) discussing my work when they don't know it's mine and discovering that I was thinking about something I didn't know I was when I wrote a particular poem. I say this because I'm a strong believer in the notion that the intent of a lawmaker is far less important than the actual words of the law he or she manages to get enacted--the law of unintended consequences--as well as the fact that our language changes over time, and what those words mean in the context of the society in which they are written and what they mean even ten years later are often wildly different. For me, the focus should always squarely remain on what the law means now, to this society, in this period.

[Turbulence]

I'm uncomfortable with courts using the idea that a law has bad effects or was passed for the wrong reasons to overturn it.

The problem with this discomfort is that "bad effects" or even "bad intentions" are often closely tied to the constitutionality of a law. If the representatives who drafted a particular law have said publicly that its purpose was to prevent blacks from voting, then, assuming that they were correct, surely the courts should strike the law because laws that effectively limit the franchise for particular groups are plainly unconstitutional. The only real question then is whether the court has to spend significant time and money to conduct an actual investigation about the likely effects of the law (in the process probably permitting many thousands of people to be disenfranchised and possibly allowing elections to be thrown) or whether the court can short circuit such analysis by relying on the law's own authors' claims as to what its effects will likely be.

The law is a blunt instrument. Courts are actually not very good at making complex adjucations over matters of fact (IMO). And even when they can do so successfully, the process is often extremely time consuming and expensive. Transaction costs matter; reality is neither a physics nor an economics class, which means that we cannot wish away transaction costs and air resistance. Given all that, courts often take shortcuts in order to prevent larger injustices.

I've often found that Americans impute courts with mythical truth telling powers that are disconnected from how courts actually operate. It is as if people's conception of what courts are stems more from their need to have a perfect oracle in life that can always uncover the truth. I can't help but wonder if some of the discomfort in this post comes from the realization that actual courts deviate from the platonic ideal of courts that could have remedied all the terrible injustices committed against one as a young child.

[Frank Wilhoit]

The worst (and probably also the best) that may be said of this time and place is that it is an era of political theater, in which nothing is, says, or does what it appears.

It is therefore impossible to distinguish actual from ostensible intent.

Ideally, political theater itself could be deemed unconstitutional.

[lightning]

It seems to me that the main problem of legislative "oopsies" is that fixing it requires politicians to admit that they've made a mistake. If the courts can get rid of a law, the politicians don't get heat for passing it in the first place.

[theophylact]

There are some pretty strong hints that most voter fraud is committed by the rich: people with several homes voting at more than one (often by absentee ballot), or voting strategically where that vote will be most effective, as Ann Coulter seems to have done.

[trilobite]

I agree with turbulence. Also, even if a discriminatory law does not succeed in restricting a minority's constitutionally protected rights, I have no problem with striking it based on intent. A law that said "Jews may not use Maypoles in their Jewish rites because we don't like Jews" would create a disturbing sense of oppression even though it would not in fact disrupt any Jewish rites.

Incertus, judges generally discount legislative intent arguments that aren't very well founded. For example, a recent district court decision rightly found that a facially-neutral regulation against pharmacists refusing to fill prescriptions for "moral" reasons, was actually targeted at pharmacists who refused to fill birth control pills for religious reasons. This was fairly obvious, what with the governor and the head of the agency writing letters and press releases that said just that. No clever deconstruction of text needed.

(I express no opinion about the rest of that district court opinion, as to which I have some grave doubts).

[hilzoy]

I agree with Turbulence that the fact that a law has bad effects is sometimes the key to whether it is constitutional or not. For instance, the question whether a given law has the effect of depriving people of life, liberty or property without due process of law is crucial to answering the question whether it is constitutional.

That said, I think this is out of line: "I can't help but wonder if some of the discomfort in this post comes from the realization that actual courts deviate from the platonic ideal of courts that could have remedied all the terrible injustices committed against one as a young child." I have no idea whether terrible injustices were committed against G'Kar as a small child, but nothing in this (imho) thoughtful post seems to me to merit that kind of ad hominem speculation about motives.

That said, it's Christmas, and so I will charitably assume that Turbulence meant it as a sort of ironic illustration of the perils of trying to divine authorial intent, rather than as an argument in its own right.

[Turbulence]

hilzoy,

I suspect (but certainly cannot prove) that G'Kar's discomfort stems from the adoption of inappropriate expectations regarding the legal system. I've observed this condition to be fairly common; that leads me to speculate as to why that might be the case. Note that trail of qualifiers and conditionals in the argument above. The quote you excerpted was where I performed this speculation. There is a strong element of mind reading here, but I'm not sure how else to proceed: if G'Kar is going to write a post exploring the fact that he is "uncomfortable", it seems reasonable for commenters to discuss common sources for that discomfort. Do you disagree?

I'm somewhat baffled as to why you would this is an ad-hominam attack on G'Kar. FWIW, I certainly have memories of childhood injustice and I'd be shocked if anyone with a reasonably normal upbringing did not. I'm not saying that all children are treated unjustly, but I'm pretty sure that almost all children at times feel like they're being treated unjustly. Do you disagree?

[hilzoy]

Turb: I was assuming that when G'Kar wrote that he was "uncomfortable with courts using the idea that a law has bad effects or was passed for the wrong reasons to overturn it", he meant to register an intellectual discomfort, rather than a sort of personal 'eww', especially since he went on to describe the reasoning, rather than the personal experiences, behind it. If so, I'm not sure his use of the word 'discomfort' licenses speculations about his motives.

Normally, when one person claims to have arguments for their views, and another responds by producing possible psychological explanations for holding it, the implication is that their arguments aren't any good. You produced some arguments against what he said, and, as I noted, I think you're right about effects, though intentions are more debatable. But since very few of us on this blog have much knowledge of G'Kar's psyche, I think it was wrong to go beyond that.

Ymmv, of course.

[Bernard Yomtov]

If the representatives who drafted a particular law have said publicly that its purpose was to prevent blacks from voting, then, assuming that they were correct, surely the courts should strike the law because laws that effectively limit the franchise for particular groups are plainly unconstitutional.

There was an example of this in the case (Wallace v. Jaffree, 1985) of an Alabama law that mandated a minute of silence at the start of the school day. The law was struck down, at least in part, because the debate in the legislature made it clear that the intent was to encourage prayer.

[Bernard Yomtov]

I meant it was an example of considering intent, of course. The law in question had nothing to do with voting.

[OCSteve]

hilzoy: …I will charitably assume that Turbulence meant it…

As one of Turb’s regular sparring partners, let me chime in to say that the charitable assumption is undoubtedly the correct assumption. He drives me nuts – but I never question that he is making observations or asking questions in good faith. It normally takes us a dozen posts and a TiO thread to pin down what exactly our differences are, but he always has good arguments and a solid basis to stake any claim. And there is never a hint of bad faith argument or anything similar.

[Brett Bellmore]

I would say that whether or not a law is a good law is not for the courts to decide. And, assuming that the IDs are provided free of charge, (Which I agree is a minimum requirement to escape being a poll tax.) and given all the numerous ways in which photo ID faciliates everyday life, voter ID laws should actually be highly positive in their effect on the currently lacking in IDs.

So, what's that leave to be concerned about? That some small number of people who are currently lacking in ID won't bother to get it even if it's free, and will thus be disenfranchised?

Well, "lazy" isn't a suspect class.

Is this likely to significantly impact ballot fraud? Probably not, I'm convinced most ballot fraud occurs through absentee ballots, not in person. But, since when is there a constitutional requirement that the legislature tackle problems in strict declining order of severity?

Bottom line, in most cases the courts are insanely deferential to legislative claims of good motive, even when it's crystal clear that a bad motive, such as incumbant protection, is in play. Why should this issue be the exception?

[Kenneth Almquist]

"I'm uncomfortable with courts using the idea that a law has bad effects or was passed for the wrong reasons to overturn it."

Well, the basic reason for overturning a law is that the law is unconstitutional. The issues you raise--the effects of the law and the reasons it was passed--are relevant to overturning a law only to the extent that they affect whether the law is consitutional.

In the case of voter ID laws, my understanding is that the two rules of constitutional law that might apply are:

1) The government can pass laws to prevent voter fraud.

2) The government cannot pass laws that interfere with the right to vote.

In order to determine which of these two principles applies, the judge must decide whether the voter ID law is best described as:

1) a law which prevents voter fraud, or

2) a law which abridges the right to vote.

The judge can look at the effects of the law and the reasons it was passed in order to make that determination.

G'Kar also said: "...there are occasions when it seems to me that people argue that a law ought to be overturned based on the fact it is a bad law, without considering whether or not it is a constitutional law."

People may have made that argument on the internet. People make all sorts of arguments on the internet. But I am pretty confident that no lawyer ever has, or ever will, make that argument in an American courtroom.

[Rebecca Borgstrom]

Isn't it really practices that are or are not constitutional, and laws are struck down or upheld as proxies for them? I mean, if we all agree to interpret "the death penalty" as "the cake or death penalty," then it ceases to be contentious under the cruel and unusual punishments clause; if we find that prosecutors are systematically misreading the convicts' formal choice of cake *as* a request for death (perhaps due to a butterfly ballot), it becomes contentious again.

The plain meaning of the law isn't.

Authorial intent discussions are every bit as . . . plain, plain kitten-eatin' wrong . . . as Incertus (Brian) observed, but so is the notion of an implacable true meaning of the text. What gives the law meaning is not just the plain text or a given person's understanding of it but rather institutional and legal precedents, secondary evidence of intent, and that conscious effort of integrity by the servants of the law and the citizenry that privileges just and/or honest readings of the law over self-serving ones.

(What is an honest reading? What is a just one? The secret, I think, is that it doesn't matter so much whether a judge or lawyer or legislator or cop finds an objectively just or abstractly honest reading of the law. What matters is how often they look for such a reading before adopting a self-serving one.)

[Chuchundra]

Brett, just because something is free doesn't mean that it has no cost. For the general classes of people who are likely to not already have photo ID, the poor and the elderly, getting transportation to the DMV or other government offices and finding the necessary documentation to obtain the ID can be no small challenge. The law requiring ID to vote puts an obstacle in the way of people's right to vote in order to remedy a problem (voter fraud) that is negligible to non-existent.

[Turbulence]

Brett,

I find it difficult to meet the documentation requirements for getting a new drivers' license. Not impossible, mind you, but difficult and stressful. I've got a lot more time and energy than your average member of the working poor or elderly and parsing the documents that specify what documentation is required is quite tricky. Add to that the fact that at least in my state, the DMV keeps standard business hours (Monday to Friday, 8:30 - 5:00).

I don't really understand how you can expect people that need to work one or two jobs to make those hours, especially if the complexity of the identity requirements necessitates multiple trips. I actually know people who have graduate degrees that have been forced to make multiple trips because they misinterpreted the documents online; of course, for poor or elderly folks that don't have internet access to begin with, multiple trips are an absolute requirement.

I'm not saying its impossible; if the government decided that it was going to execute every single person who didn't have an ID, then I promise you, almost everyone would get an ID. But in practice, there are no executions; there are just hard working people who can't afford to vote if you raise the cost of voting too high, where cost includes things like the ability to take hours off in the middle of the work day and the ability to understand and acquire needed documentation.

[Incertus (Brian)]

For example, a recent district court decision rightly found that a facially-neutral regulation against pharmacists refusing to fill prescriptions for "moral" reasons, was actually targeted at pharmacists who refused to fill birth control pills for religious reasons. This was fairly obvious, what with the governor and the head of the agency writing letters and press releases that said just that.

My point is that if the regulation is facially neutral, then it shouldn't matter why it was passed. If it passes constitutional muster, then the motivation for passing it is irrelevant. The example about restricting the vote based on race is obviously unconstitutional, so the motivation for passing it doesn't matter.

[Bruce Moomaw]

Would a signature be acceptable as a substitute for reliable voter-ID purposes? If so, then there is no need to force anyone to traipse down to the DMV and stand in line interminably for photo ID.

[Turbulence]

Bruce,

A signature sounds to me like a complete joke: it only works if you have something to compare it with (possibly the signature on the corresponding voter registration card?), there are no uniform standards for comparison whatsoever, there is a lot of temporal variation in people's signatures, etc. Do we really want to live in a world where the deciding factor on who gets to vote is whether a random elderly volunteer decides that two signatures match?

Then again, I find the whole fixation on ID to be a joke, so I'm probably not a good judge of what proposals will be persuasive to the voter ID crowd.

[Bill]

Washington is still kicking Madison for failing to codify voter eligibility requirements.

Hindsight George, hindsight.

[David Moisan]

In MA ID's are not costless. It cost me $35 to get a non-driver ID 10 years ago after I turned in my driver's license due to deteriorating eyesight.

No cash or plastic; checks only.

There should be a high burden on the government to justify ID requirements; I just don't see the need for that at the polls.

Not looking forward to REAL ID.

[Daniel Merritt]

I didn't read through all the comments, so perhaps this was already discussed, but the problems here in Ohio the problems don't just involve photo ID. It also involves proving you live at a certain address, theoretically to avoid voting across congressional district lines one would assume. One group this really, really hurts is students (who I thought we were trying to ENCOURAGE to become involved and engaged) since they're often moving between dorms, apartments, campus housing etc.

Students also tend to be less comfortable (less experience) handling and using official documents, so they're more likely to just be befuddled by the requirements and go home. In '06, I worked with a group trying to help students - and others, of course - negotiate the new requirements at a polling place close to the state university. There were a lot of people who had issues, were turned away, or had to cast provisional ballots. The problems with any semi-complex set of requirements is compounded by the poor training of many of the poll workers inside, who are given only the most cursory of training on the new rules and often misunderstand them.

[Hartmut]

Just for comparison
The German Supreme Court has invalidated some laws not because they were unconstitutional when they were enacted but because the context changed over time. In other cases parliament was informed that the court would invalidate a law, if certain context factors stayed as they were ("you can keep this law, if you do the following changes in other places/laws/etc.").
The court (considered one of the least partisan and most respected institutions over here) obviously considers text and context as inseparable and demands that to be constitutional the balance has to be kept and cosntantly observed.
I think there were a few "undue burden" cases too. In the last few years it has become common that the court gives advice what changes would remedy an invalidated law but usually combined with an added reprimand that it is not the job of the court to do the repair work for the legislators. The judges also are very un-pleased, if a law is actually made with the purpose of being overturned by the court for political reasons (oh happy America where things like this could never happen ;-) ).

[rea]

My point is that if the regulation is facially neutral, then it shouldn't matter why it was passed. If it passes constitutional muster, then the motivation for passing it is irrelevant.

The law is not that much of an ass. "All comentators who post on Obsidian Wings at 10:16 p. m." and "Incertus (Brian)" essentially describe the same thing, although the former is the more facially neutral formula. The law is permitted to look behind the face of things . . .

[Jackmormon]

So, what's that leave to be concerned about? That some small number of people who are currently lacking in ID won't bother to get it even if it's free, and will thus be disenfranchised?

Well, "lazy" isn't a suspect class.

I didn't have any valid ID for a couple of years. It was a combination of depression and anxiety and crippling fear of the process that would be necessary to replace the paperwork. The DMV in my state requires an original SS card, the SSA requires valid ID for a replacement card, etc. All of these institutions have confusing websites and offices in strange places with odd business hours like 11 to 4, or 9 to 2. It ended up being easiest to get a passport, roping in a US citizen to vouch for me. Of course that was the most expensive way to do things. Fortunately, I had a notarized copy of a birth certificate (when they took that away for verification by the State department, I nearly panicked). Anyway, ID isn't easy, and especially not if you've been moving around.

[Patrick]

I am of mixed opinion.

On one hand, I can imagine a facially constitutional law passed with the intention of achieving an unconstitutional result, but which does not in fact achieve that result, and therefore does not violate the constitution. It seems like that shouldn't be tossed out.

On the other hand, in terms of the institutional struggle between the branches of the federal government, I can see a certain logic to a court bouncing a law on the grounds that "If you TRY to violate the constitution, I'm going to assume you DID violate the constitution, and kick you in the head."

G'kar, would your opinion on the desirability of bouncing a law as unconstitutional due to the intention of those passing the law change if that intention were clearly and unequivocally stated in legislative history?

[Turbulence]

Whether or not a law is constitutionally valid on its face (which I take to mean exclusive of what its drafters or proponents might have said about it) cannot be decided in a vacuum. Oftentimes, these questions hinge on matters of fact which cannot be easily determined by the courts but can be determined by the executive or legislative branches.

For example, in the voter id cases, constitutionality might hinge on conducting small scale studies, or on hiring a demographer or statistician to run some numbers on a particular model that relies on census data to extrapolate what the likely effect of a law will be. Judges don't generally have statisticians or demographers on their staff. Legislators often do (GAO or CBO) and the executive branch certainly does.

While the courts can hear expert witnesses testify if a well funded party sues (and if that party has standing and meets lots of random requirements), courts generally are not able to call such witnesses on their own (how would you even pay for such a thing? experts are not cheap...).

The bottom line is that the legislative and executive branches are equipped to conduct the investigations of fact needed to demonstrate constitutionality and that courts are not. In light of that fact, it is perfectly reasonable for courts to rely on "intent", especially if the legislature or executive branches fail to supply compelling evidence that the factual questions at hand indicate constitutionality.

[Turbulence]

As an aside, one of the most shocking moments in my education was reading a supreme court case relating to my area of expertise. I'm an engineer, not a lawyer, and I distinctly recall thinking: "OMG these people are complete idiots". I strongly recommend the experience to all non-lawyers.

Subject knowledge matters in some cases. It matters a lot. The process by which the legal system in the US moves subject knowledge from experts into the heads of judges is...problematic. Some of these problems stem directly from the nature of the adversarial process: party A makes insane obviously untrue claims 1, 2, 3, 4, 5, 6, 7 and 8; party B counters that claims 1-6 are obviously wrong and here are expert witnesses to prove it. Claims 7 and 8 don't get disproved either because party B ran out of time/money/experts or because those claims are still crazy but slightly less crazy than the preceding claims, and party B doesn't want to muddy the waters by introducing slightly weaker arguments that party A can then hammer them on. Consequently, you end up with supreme court justices espousing really bizarre and occasionally ridiculous beliefs about how the world works or what will likely happen in the next N years.

[peggy]

Another note on the ID problem.
Many elderly Southern black people were born in their mother's home, not in a hospital. As a result, a birth certificate never existed.

[farmgirl]

@ Rebecca, 9:35pm -- love the Eddie Izzard ref...

[trilobite]

My point is that if the regulation is facially neutral, then it shouldn't matter why it was passed. If it passes constitutional muster, then the motivation for passing it is irrelevant

Yes and no. The motivation is irrelevant, but the purpose of the law is always very relevant. We don't generally care whether a legislator passed a law because he wants to help kittens and babies, to help his favorite team win, to get an earmark, or to bring about the Apocalypse. But we care very much what the purpose of the law is, because that tells us how to interpret ambiguities and what its likely effect will be. For practical purposes, the effect of a law IS the law. But in the interest of justice, consistency, and efficiency, we don't demand that a law stand for a few years so we can get data as to its effects before we can decide whether it is unconstitutional. That tends to leave purpose as what we can look at.

The purpose is shown first and foremost by the text, but also by the circumstances, because it's usually very easy to come up with some facially neutral way to frame an unconstitutional law.

Just to be clear, bad purpose does not necessarily make a law invalid, and good purpose does not necessarily make it okay. Purpose helps decide what standard to apply. Loosely speaking, a law may have an official purpose -- here, to prevent fraud, which is surely a "legitimate state interest" in the language of these cases -- and an ulterior (but obvious) purpose, a target -- in this case, poor (Democratic) voters. If a law is targeted at the exercise of a constitutional right, then the court uses "strict scrutiny" -- it asks whether this law was really the necessary & minimally harmful way to effect the legitimate state interest. If the law is not targeted at a right but impedes it anyway, the court will just ask whether the law has a rational relationship to some legitimate purpose. In practice, strict scrutiny generally means you lose, but there's some wiggle room and a lot of narrow exceptions. So it's never as simple as "they had a bad reason, so the law must go."

[Brett Bellmore]

I think I'm going to stick with "lazy isn't a suspect class". I am not troubled by requiring somebody to actually exert themselves to exercise a civil liberty, especially one of a procedural nature, and where the exertion is logically related to the exercise of that liberty.

It's simply reasonable to require you to prove that you're Robert Hassenfeffer before you cast Robert Hassenfeffer's vote. End of story.

[trilobite]

Brett, it's simply reasonable not to fix something if it ain't broke. End of story. :)

Nobody said anything about protecting the lazy, it's just a question of whether there's any good reason to put people to extra effort. Especially when the effort required rises sharply for the poor.

[Turbulence]

It's simply reasonable to require you to prove that you're Robert Hassenfeffer before you cast Robert Hassenfeffer's vote. End of story.

Um, why? Why is that simply reasonable? Given that we know that there are costs to imposing such requirements, what evidence do you have indicating that the benefits would be substantial? Or even marginal?

Right now, every state and municipality in the country has the freedom to review the voting logs after an election and send agents to people's houses to ask them if they went to polling station X at time Y to vote. Doing so would give you an upper bound on the prevalence of voter fraud. This isn't a hard investigation to perform. So if vote fraud is such a huge problem, can you point to even a single case where a study like that has been conducted? I mean, before we disenfranchise even one person, shouldn't we have at least one simple study that indicates there is a problem? Or is this an area of policy where evidence is not necessary?

[Turbulence]

Also, Jackmormon's comment resonated with me. More than half of adults are going to experience at least of episode of a major depressive disorder in their lifetime. It seems stupid to make voting harder for depressed people without any serious indication of a problem.

For that matter, voter ID laws (and the bizarre fixation on identification) really go against all the trends in American life. Every year, people are busier, more stressed, and more mobile. People don't stick around working the same job for decades like my parents did. People move around a great deal more often than they used to and that trend is only going to continue. Given all that, voter ID laws just raise pointless barriers to voting for all kinds of people. It is particularly problematic for the poor and elderly, but I'm not exactly thrilled with making voting harder or more time consuming for lots of middle class and young folk either.

[liberal japonicus]

Another point to consider is negotiating bureacratic requirements in a second language. The response of 'learn English' is not really valid because the distance between everyday language and the procedural language is huge.

[OCSteve]

Turbulence: Um, why? Why is that simply reasonable? Given that we know that there are costs to imposing such requirements, what evidence do you have indicating that the benefits would be substantial? Or even marginal?

Number one – I do not want to listen to Jes go on about yet another stolen election until 2012. ;) I want Jes to be an election observer next year. I want Jes to bless whatever the outcome is. That is only half snark – I do not want anyone in the entire world to have any reason to doubt the outcome of this next election.

In terms of substantial or even marginal – with our system we have seen elections go one way or the other these past two cycles based on very few relative votes. The country is so divided that a few hundred votes can swing an election.

Right now, every state and municipality in the country has the freedom to review the voting logs after an election and send agents to people's houses to ask them if they went to polling station X at time Y to vote.

Isn’t that kind of late? Who is going to reverse the outcome if there is fraud? Again, we have seen incredibly tight elections recently. How much do those investigations cost? Could that money be better spent insuring that everything is kosher before hand? Is it better to make people insure they are legal or prosecute them for screwing up?

For that matter, voter ID laws (and the bizarre fixation on identification) really go against all the trends in American life.

Well no, IMO. I don’t understand that. I do understand your point about the hassle. But the issue of proving who you are hits closer to home with me than just elections. I have been the victim of identity theft not just once but twice now. It just happened to me again this holiday season. I have thousands of dollars in credit card debt that I am not responsible for, and I’ll likely be fighting it for years, and it will screw up my credit rating (again) and it will cause me a lot of grief (again). It is really simple – if you want to charge something as OCSteve or cast a vote as OCSteve – prove that you are OCSteve!

Is a vote really less important than a credit card charge?

[Bruce Baugh]

Steve, a lot of people don't have credit cards but are entitled to vote.

[OCSteve]

Bruce: a lot of people don't have credit cards but are entitled to vote

My point was that it should be at least as difficult to commit voter fraud as it is to commit credit card fraud. That seems to be a rather low threshold…

[Bruce Baugh]

The thing is, the barriers in place demonstrably work. There is no significant rate of retail vote fraud. People have been looking really, really hard for it, and straining at every available gnat while swallowing every available camel, and the sucker's not there. The significant vote fraud happens elsewhere in the process: in manipulating the rolls, and in manipulating the tabulation. The ID requirement is a solution to a problem that doesn't exist, and I'm opposed to fixing non-existent problems.

[Turbulence]

Isn’t that kind of late? Who is going to reverse the outcome if there is fraud?

It may or may not be late depending on what you want to do. If you want to find out whether there is a problem and get a rough idea of how big it is so that you can implement better security for the next election, then it is not late at all. If you want to just impose sweeping measures to ensure that it is extremely difficult to carry out election fraud, then it is very late indeed.

I personally am of the opinion that it is completely pointless to try and solve problems until you've made an effort to characterize them. Do you disagree with that? I'm sure you have some really good "hunches" about how much voter fraud there is, what forms it takes, and how best to combat it, but would it be so bad for us to conduct actual investigations?

Look, people often want to solve "problems" that don't really exist outside their own mind. If a thousand people committed individual uncoordinated voter fraud in 2004, does it really make sense for us to care? No system is ever going to be perfect anyway, and the cost of reducing fraud from 1000 cases to 100 cases is going to be astronomical (unless you're willing to disenfranchise lots of people).

How much do those investigations cost?

Spot investigations cost far, far less than enforcing any kind of ID rule globally. Yeah, spot investigations won't uncover all possible instances of fraud, but, using the magic of statistics, we can get decent numbers.

Could that money be better spent insuring that everything is kosher before hand?

Again, I really believe that money spent "fixing" problems is money wasted until you've gone to the trouble of doing basic analysis characterizing the problem. I would point out that we spent a lot of money supporting our Iraqi ($8 billion) and Pakistani ($5 billion) allies that has basically disappeared without doing us any good at all: this is what happens when you rush to "solve" problems without stopping to think first.

There is always going to be a tradeoff between election integrity, low cost, and arbitrary restrictions on the franchise. You can pick any two. You cannot pick all three. Sorry. That's just the nature of life. All I'm suggesting is that making your choice without collecting information first is unwise.

Is it better to make people insure they are legal or prosecute them for screwing up?

There is no way to ensure that people are legal with high fidelity that is not either costly or likely to disenfranchise enough people to throw an election. If ensuring the integrity of elections was so vital, I would expect there would be a larger focus on that last point.

It is really simple – if you want to charge something as OCSteve or cast a vote as OCSteve – prove that you are OCSteve!

Is a vote really less important than a credit card charge?

OCS, I feel your pain, I really do. However, I would note that the current credit card system we have today has utterly failed to protect your identity, has it not? If we made voting as secure as the credit card system is today, then we'd still allow trivial voter fraud.

Also, in general, when people preface something with "it is really simple...", they're completely wrong. Stuff that is actually simple rarely requires an explanation of how simple it is ;-)

Faking a identity is trivial: any 15 year old in search of beer can tell you how to do it. Actually checking identity is quite difficult and probably requires infrastructure far beyond what we have now: I'm thinking of a real national ID card with built in biometrics. Anything lower than that is going to be a joke. There's a reason that credit cards are insecure: the cost of making them secure far exceeds the losses.

Finally, proving identity isn't really helpful by itself. What you want is to prove not only identity but that you voted once and only once in any election, which means collating data across multiple polling places and enforcing those constraints in real time. Note that you can't store too much temporal information regarding when someone shows up to vote because that could be used to later determine how they voted in conjunction with some electronic voting systems. And note that you need to do all that using highly reliable equipment that is cheap and simple enough to be used by your average polling place worker who is 897 years old and has only gotten 30 minutes worth of training. Oh, and you now require that all polling places have internet access so that you can prevent people from showing up in multiple polling places with the same ID on the same night. But wait! Your internet access had better be reliable or else you have to stop signing people in to vote. Let's hope there are no major attacks against internet infrastructure on voting day because it would really suck if a warhol worm launched by a botnet took out enough of the root servers to knock out 15% of voter check in attempts; that would generate extremely long queues that would likely prevent millions of people from voting.

This is a hard problem. Elections look simple, but they are actually quite complex, especially if you plan on maintaining the secret ballot.

[Brett Bellmore]

"The ID requirement is a solution to a problem that doesn't exist, and I'm opposed to fixing non-existent problems."

I doubt it's utterly non-existent, but I'll agree that the rate of impersonation vote fraud is low enough that it effects very few elections compared to other forms of ballot fraud.

I just don't think that solving a problem that doesn't exist is a constitutional infirmity.

[Turbulence]

I do not want anyone in the entire world to have any reason to doubt the outcome of this next election.

All systems operate with some margin of error, and I would guess that our current system has a margin of error of 5,000-20,000 votes per state (on average). That means that if two candidates get tallies that are less than 5K votes apart in any swing state, you don't know who won: the only correct thing to do is to throw the election out and try again (unless you live in a world where there are meaningful paper ballots to recount). The point is, this system is not accurate enough to give us results we can be confident in, even absent individual fraud.

And the changes we're making are reducing our confidence in the system not increasing it. See electronic voting machines that are a complete joke and are sold by crooks.

Getting a voting system that has the requisite accuracy is going to be shockingly expensive. That's because building any kind of low error margin system that meets the myriad constraints a voting system has to meet is going to be very expensive.

[Chuchundra]

I just don't think that solving a problem that doesn't exist is a constitutional infirmity.

Sure it is, if fixing the non-existent problem interferes with some people's right to exercise their franchise by imposing and unnecessary burden. This goes double if the burden disproportionately affects protected classes of people, minorities, the poor and the elderly. And it goes triple if the stated purpose of the law is to impose such a burden.

I don't know why this seems like such a difficult concept for you, Brett. Voting is a right of all citizens. You can't just start requiring people to jump through hoops to exercise their franchise because it doesn't seem like such a big deal to you.

[Hartmut]

One great help would be a constitutional amendment that actually states an unalienable right to vote combined with a duty to help in the excercise of that right and very stiff penalties for violation*. The wide range of disenfranchisment rules for e.g. felons** or ex-felons (from no-vote-while-in-prison*** to you-will-never-vote-again) alone throws a spanner into any meaningful solution.

*that is for deliberate disenfranchisment
**in 2000 this allegedly included people living in Florida who got a parking ticket when living in Texas at an earlier time.
***I would do without that but I would consider it tolerable, provided it is not abused by doing a round-up right before the elections and letting the people go without charge one day after the elections (which I hear has happened in places [not necessarily during the last few elections]).

[Patrick]

The sort of fraud that IDs would stop is ridiculously rare, for reasons that should be obvious. That really, really, REALLY should be obvious.

My state has a voting population of approximately 4.5 million. To swing a state election by 1% of the gross votes, you'd need approximately 45,000 fake votes.

Casting a vote in person, where IDs are checked, takes time. You have to show up in person, wait in line, and fill out the little bubbles. Even if I wanted to vote multiple times, had a map of all the voting locations so my face didn't become known at any particular one, and could talk my way into the booth each time, I'd only be able to vote a handful of times if I started in the morning and worked at it all day. Lets say that if I were ambitious, I could vote 10 times.

That means that coordinating a 1% swing in the election outcome would require me to find 4,500 like minded people willing to drive from location to location all day to fraudulently vote multiple times.

This is unlikely.

I suppose it would be easier to use this sort of fraud in a city election, except that anyone willing to do that has better choices- just have partisans handle the vote collection and counting. Its much easier for a ballot box from a partisan neighborhood to "go missing." That just takes one guy.

[OCSteve]

Bruce: The ID requirement is a solution to a problem that doesn't exist, and I'm opposed to fixing non-existent problems.

Turb: I personally am of the opinion that it is completely pointless to try and solve problems until you've made an effort to characterize them. Do you disagree with that?

In the broader sense I’m in agreement with this. But I have trouble holding these two ideas in my head simultaneously:

1. Voting is one of the most important if not the most important responsibilities we have as citizens.
2. People should be able to walk into a polling place on Election Day, register on the spot without proving who they are, then proceed to the booth.

Notice I say responsibility. That is my view of it and it includes such things as registering well in advance of an election. And when you register it should be incumbent on you to prove you are who you say you are.

Turb: All the rest of your points are well taken. I do understand that I’m wishing for a pony here.

[Turbulence]

Notice I say responsibility. That is my view of it and it includes such things as registering well in advance of an election. And when you register it should be incumbent on you to prove you are who you say you are.

I don't really understand why so many of these "should" statements must hold. Why should I have to register far in advance? Why can't I just show up the day before? My life is hectic enough, so where on Earth would this obligation to make it more complicated by adding arbitrary restrictions come from? I can't see who it benefits...

I still don't get why I should have to prove who I am when registering...the real obligation that matters to me is that I should not commit electoral fraud. That's the point of all this: fraud reduction.

Let me pose a hypothetical: should a returning Iraq war veteran who is suffering from PTSD and getting screwed over by the government also have to register far in advance? Should he also have to provide extensive documentation on registering? What happens if he doesn't have his stuff together well enough to meet these arbitrary requirements because he's using ever spare cycle just to keep things from flying apart?

I ask because when I read your statements, I get the feeling mixed in with all the vote integrity issues, there's an undercurrent that demands people should demonstrate fealty to the system, that they should publicly signal their respect and comprehension of how great a privilege they can enjoy in voting. Am I reading too much into your writing or is that undercurrent actually present?

[OCSteve]

Turb: Am I reading too much into your writing or is that undercurrent actually present?

Probably an undercurrent yes, although “demonstrate fealty to the system” and “publicly signal their respect and comprehension of how great a privilege they can enjoy in voting” takes it way too far.

Let me simplify: Do rights come without responsibilities? IMO the answer is no.

When I exercise my right to free speech I also have responsibilities. Is the press free from responsibilities? Are there responsibilities incumbent in freedom of assembly? Many people in this country believe that I have the right to keep and bear arms. Should I be able to exercise that right without bearing any responsibility? Should I be able to walk in, buy a gun, and walk out without establishing my identity?

Look – I don’t want a poll tax or literacy test to vote. I would be against any unreasonable requirements. But I don’t think that requiring a modicum of responsibility from those who wish to exercise their right to vote is unreasonable.

[Turbulence]

I don’t think that requiring a modicum of responsibility from those who wish to exercise their right to vote is unreasonable.

I think we're approaching the nub of disagreement here. Well, maybe not THE nub, but a nub. I've heard vague allusions from other people, but I've never seen it presented so clearly and concisely.

If we're going to require "responsibility" from voters before voting, then I'd much prefer that they spend extra time studying candidates' positions and educating themselves as opposed to making sure they register really early. Registering early doesn't accomplish anything at all.

I would be against any unreasonable requirements.

What is reasonable for you may not be very reasonable at all for our hypothetical PTSD-afflicted veteran. Or Jackmormon. Or myself when I'm depressed. Or someone like Gary Farber.

Should I be able to exercise that right without bearing any responsibility? Should I be able to walk in, buy a gun, and walk out without establishing my identity?

This strikes me as very strange. The government imposes limitations on the exercise of fundamental rights in order to satisfy a compelling state interest. In fact, restrictions on such rights are only permissible if the interest is compelling and there are no alternatives that would not restrict the exercise of such rights.

In the examples that you gave, the restrictions don't exist because the government wants to see people demonstrate responsibility. They exist to keep innocent people from getting shot by lunatics, which is a pretty compelling state interest, no?

If we haven't bothered to conduct any investigation into the scope and nature of the voter fraud problem, then why should any judge believe that ID requirements addresses the compelling state interest of electoral integrity? Without the investigation, there's no reason to believe that mandatory IDs will improve electoral integrity significantly, is there?

You talk about rights and responsibilities, but a given right doesn't automatically have responsibilities attached to it by God. We negotiate, as a society, what the responsibilities go with what rights on an ongoing basis. Some people have proposed disenfranchsing some people (group A) in order to combat a voter fraud problem that effectively disenfranchises others (group B). Whether or not that proposal makes sense really does hinge on how big groups A and B are and how representative they are of the electorate. If you can't answer those questions (or even give plausible guesses), then there's no point talking about responsibilities.

[OCSteve]

Turb: I’ve had this argument many times now, and you have, by far, supported your case better than most.

I have to give it some thought. I may be wrong.

[Brett Bellmore]

"Why should I have to register far in advance? Why can't I just show up the day before?"

For that matter, why do you have to go to a polling place, rather than having it go door to door? Why do you have to fill out the ballot yourself, rather than having a clerk fill it out for you according to your verbal instructions? Why don't we initiate a crash program to build a functional NMR voting machine that reads your mind?

Clearly, it's acceptable to require a voter to make SOME level of exertion to vote. What we're arguing about is where the line gets drawn, and, frankly, I'm comfortable with putting "Prove you're who you say you are!" on the acceptable side of the line. Most people are comfortable with that, because we're so used to being required to prove who we are before doing things.

Not everybody who's physically present in this country is entitled to vote in every election. Some are not citizens. Some are minors, or disenfranchised by reason of criminal record, or residents in other voting districts.

Verifying that you ARE a person entitled to vote in THIS PARTICULAR election is thus perfectly reasonable. We don't have some kind of free floating right to vote whenever it enters our head to do so. Particular people have a right to vote, once, in particular elections. This inherently requires verifying identities in some manner.

We're only arguing about the manner, and I think requiring photo ID is a reasonable manner.

[Bernard Yomtov]

Brett,

Let's be blunt.

There are lots of problems with voting in the US. These include things like an inadequate number of voting machines in some (mysteriously urban, Democratic) districts, inaccurate lists of ineligible voters (mysteriously mostly minority, likely Democratic voters), unreliable, easily hacked voting machines (manufactured by heavy Republican contributors), highly partisan officials in charge of voting (Katherine Harris, Ken Blackwell), etc.

On this list voter fraud and ID problems are pretty low in impact. So I'm not interested in pious proclamations of concern about maintaining the integrity of voting by those who make voter ID a big deal.

Quite honestly, I doubt their sincerity. I think the intent is to disenfranchise some voters. Why do I think this? Am I a mind-reader? No I am not. I think it because I see no sign that those raising a ruckus about ID requirements are in the slightest concerned about other, bigger problems affecting the integrity of voting.

When I see such signs, as well as evidence that the ID issue is actually important, I'll start to pay attention. Until then, I'm not interested.