Beer, Cigarettes and Voting: ID, Please

On Monday, the U.S. Supreme Court ruled that states can require voters to present a photo ID at the polling place. Rick Hasen of Loyola Law School in Los Angeles says the push for voter ID laws hinges on the question of voter fraud.

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MIKE PESCA host:

You can't get into an airport, cash a check or drink a beer without showing some photo ID. Yet in many states, you can participate in the cornerstone of our democracy just by saying your name and signing in. Actually, almost half the states require some ID to vote, but only a few require photo ID. The strictest state is Indiana, which requires a current, government-issued photo ID.

Democrats say the laws keep poor and elderly voters - meaning their voters - away from the polls because it's hard for those people to get photo IDs. But Republicans say such laws prevent voter fraud. The debate might explain why the voter-ID law in Indiana got all its "yes" votes from Republicans and all its "no" votes from Democrats.

So, after an appeal of this law, the fight went all the way up to the Supreme Court, and yesterday, the Court upheld Indiana's law. Let's hear a clip from a report by NPR's Nina Totenberg in which she breaks down the Court's ruling.

NINA TOTENBERG: The lead opinion, written by Justice John Paul Stevens, for himself, Chief Justice Roberts and Justice Kennedy, conceded that Indiana has no history of in-person voter fraud. But Stevens pointed to the 1868 Boss Tweed elections in New York as an example of flagrant voter-impersonation fraud that's been documented elsewhere.

Stevens also conceded that the new voter-ID requirement may have been enacted from partisan purposes and may place a heavier burden on some citizens. But he said there's no concrete evidence of the number of the voters who are disadvantaged. And without such proof, a law that's nondiscriminatory on its face and has a legitimate anti-fraud purpose cannot be struck down.

Justices Scalia, Thomas and Alito wrote separately to say that, in their view, no voter has a valid claim against a law like this unless the voter can prove discriminatory intent. Justices Souter, Ginsburg and Breyer dissented. They said that those challenging the law had provided adequate evidence of significant burdens on the poor and the elderly.

Said Souter, the requirement that people who are poor and without cars travel potentially long distances without public transportation to their county seats within ten days of each election to sign an indigency affidavit in order to vote translates into an economic burden, uncomfortably close to the $1.50 poll tax that the courts struck down 42 years ago.

PESCA: Well, Professor Rick Hasen is a voting law expert from Loyola Law School in Los Angeles, and he filed a friend-of-the-court brief opposing the Indiana ID law. The Court's majority essentially said, thanks, friend, but no thanks.

Hello, professor. So, the argument that I put forth, that in a security-conscious world, you need ID for everything, why not voting? It's an argument put forth by everyone from Karl Rove to the Indianans who passed the law. What do think of that argument?

Dr. RICK HASEN (Loyola Law School-Los Angeles): Well, I mean, a couple of reactions. One is that, in fact, you know, you can go through airport security without an ID. You just have to go through a very intrusive check.

But the more important point is that you have constitutional right to vote, and entering into government buildings, all of these things, probably not at the core of the Constitutional right as the right to vote. I actually don't think that voter ID by itself is necessarily a bad thing, or unconstitutional. It's just the particular way that Indiana did it that I thought was very troubling.

PESCA: They made it pretty onerous, or it's fairly onerous on people trying to get a license, and also they were pretty strict about what kind of ID you had to have.

Dr. HASEN: Well, and I would say the strictest part is that, suppose you were indigent, you couldn't afford the birth certificates that you needed to get the free ID from the Bureau of Motor Vehicles, or suppose you had a religious objection to bring photographed. Under this law, you have to, every time you want to vote, you have to make two trips to the polls.

First, you show up to the polls, cast your vote. Then within ten days, you have to make a separate trip to the county seat and fill out a second affidavit. And this seemed to me to be not very closely related to any interest in preventing fraud or anything else. It just looked like an unnecessary burden being put in front of some of the most vulnerable voters in our society.

PESCA: Well, how many people are in that category? Maybe not the religious objection to a photo ID, but just so indigent that they can't get an ID.

Dr. HASEN: Well, this was a big problem with the case because the way that the Indiana Democrats brought this case, was they brought it as a facial challenge. They said this law should not apply to anybody, and they didn't produce any people who they said would actually face this kind of problem.

PESCA: You've got to have a victim.

Dr. HASEN: I'm sorry?

PESCA: You should - it helps to have a victim if you want the courts to listen to you.

Dr. HASEN: Well, that's right. So this is a great case where neither side had any evidence. That is, Indiana, in its history, had never prosecuted anyone for impersonating someone else at the polls. And in fact, that's a very inefficient way to try and steal an election.

I'd have to try to figure out who's not voting, go in and pretend I'm that person, and then someone's going to pay me to do this, not knowing how I'm going to vote. Usually, the kind of fraud we see is absentee-ballot fraud, and this doesn't apply to absentee ballots. So the state didn't have a lot of evidence of voter fraud, and the plaintiff didn't have a lot of evidence of people who are burdened.

And the Supreme Court said in that kind of situation, the state doesn't have to produce any evidence and the challengers to the law have to show that they really are burdened and maybe a narrow exception can be carved out for a small group of people who face these serious burdens.

PESCA: Voter fraud has been exaggerated for political purposes. Karl Rove has called it a terrible blight on democracy, and yet, there are instances where it's undeniable that voter fraud has occurred.

Now, I know that some people - you know, there was an article, or an op-ed, in the Washington Post, titled "The Myth of Voter Fraud," and that was written by some people who were also involved in the case. What do you think? Is voter fraud a myth?

Dr. HASEN: Well, I certainly think voter fraud occurs, but almost all of it occurs through absentee ballots. Because, look, if you want to influence the outcome of an election, you've got to make sure that people are voting the way you want them to vote. So what better way than to actually look at their ballot, collect the ballot, and pay them after you see they've voted the way you want?

So when someone's trying to influence the outcome of an election, it happens with absentee ballots. Well, these new voter-ID laws not only don't apply to absentee ballots - it'd be tough to check someone's ID when they're sending something in the mail, although you could require a thumb print or something else - but there are no other safeguards that are put in place to stop the kind of fraud that we know occurs.

So I think the myth is that there's a lot of voter fraud going on at the polls. People just don't show up at the polls claiming to be someone else. The evidence that Justice Stevens pointed to - he had to reach back to 1868, in one instance, and in another instance, he found a single instance of an unreported court case out of Washington State involving their governors' race. It's pretty thin evidence.

PESCA: Well, Justice Stevens, to be fair, is quite old.

Dr. HASEN: Well, I was worried when he was going back to 1868 that he was using his personal memory of this, of Boss Tweed.

PESCA: You know what's interesting about Justice Stevens agreeing with the majority? If you look at the votes thus far in the bill, like I said, only Republicans voted yes. Then if you look at the appeals court, it was a two-to-one decision. All the Republican-appointed judges said this law should be on the books. All the Democrats didn't.

Up until Justice Stevens, who was appointed by a Democrat, basically everyone with a Republican connection said, we're for this voter-ID law. Everyone with a Democratic connection said we're not. Does this kind of point to, I don't know, a hypocrisy in people who say that the court is - that justice is blind and doesn't look at partisan politics?

Dr. HASEN: Well, let me just correct you first. Justice Stevens was appointed by President Ford, a Republican.

PESCA: This is true, but he's a very liberal member of the Court.

Dr. HASEN: He's independent, and Justice Souter, who was in the dissent, was appointed by the first President Bush, who is a Republican. But certainly this was a liberal/conservative split, although Justice Stevens is usually on the other side of that.

PESCA: Yeah. He's the one, right - because Souter is, you know, liberals - Republicans feel betrayed by Souter. So, Stevens is the unusual vote, yes.

Dr. HASEN: That's true, but what I would say is, you know, these are not judges who are voting to think about, you know, what's going to be best for their parties. But I think these judges come to these cases with the same worldview as the rest of us do. And so many people who are Democrats believe that these voter-ID laws are an effort at vote suppression and are unjustified.

And many Republicans come in thinking, what's the big deal? You have to show ID in all these places, and there's a lot of fraud going on. So these kinds of laws impose just a minimal burden. So, I think the judges - and we saw this in Bush versus Gore - judges are not immune to being subconsciously weighed by their underlying worldview of their own political party.

PESCA: Do you think that there is a chance - if we could be very quick about this answer, but the question is, fine, this seems weird now and it's unusual and maybe votes will be suppressed, but eventually the political organizations will just know getting people to the polls also means getting them an ID and eventually this will all be kind of absorbed into the definition of politics?

Dr. HASEN: Well, I think some people will fall through the cracks, and more importantly, the case is just opening up the door to both the Republicans and Democrats in state legislatures passing laws aimed at trying to game the system.

PESCA: All right. Rick Hasen of Loyola Law School in L.A. Thanks very much, Rick.

Dr. HASEN: My pleasure.

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