As the election cycle draws to a close, we start to hear more folks–those on the right especially–raising the issue of Voter Identification as a requirement for voting. While there has yet to be evidence of a significant voter fraud case in terms of Federal and National elections in this country, many who are harboring soreness from the results of the 2012 Presidential Election are quick to claim that there was a large and invisible movement of folks moving across district lines and voting multiple times. Of course, the amount of work that would be required for the kinds of number skewing in the 2012 election would have required about 5 million votes to be fraudulent in the final tally. Generally speaking, when voter fraud does occur, you can measure it–for example back in 2000 when thousands of disenfranchised black Floridians were denied their vote, these people spoke up and were simply not heard by the Congress as several factors of collusion obstructed the vote counting process. I don’t know who would have won the 2000 election had it not been ended early, but I do know that the events in Florida of 2000 have more corporeal and empirical evidence to support it than anything asserted to the 2012 election. (It should also be stated that voter fraud and the disenfranchisement and the Supreme Court intervention of 2000 are not the same thing).
Now, we have a climate where many are again gearing up for a loss. The polls in this mid-term election are wishy washy and the remainder of the Obama Administration hangs in the balance of Congressional seats won and lost. I don’t know exactly how Democrats might consider spinning a crushing defeat (or even a margins-yet-decisive one), but the Republicans will without a doubt raise the issue of Voter Identification again and look to levy their own brand of unconstitutionality to the Federal Government–which perhaps might be turnabout as fair play for the Democrats and the Legislative Supreme Court. Some argue that Voter Identification is the only way to ensure the fidelity of elections in this country, while others assert that it is simply a racist and possibly classist way to diminish voter turnout.
In the spirit of exploring the idea, I read up on the arguments and, honest, at first shot the pro-Identification argument seems reasonable. The argument is simple: make sure that each person gets one vote and make sure that everyone voting is a United States citizen with a photo identification card requirement at the polls when showing up to vote. It hinges however, on the premise that Photo Identification is an infallible system. Many Americans have fond memories of “fake IDs” that they used to gain entrance into clubs or to purchase alcohol when underage. While technology around IDs has evolved in the past 20 years, it still is possible to “chalk” or create false identification cards for minors. When compounded by the lack of security of Social Security numbers, bank accounts, and other kinds of identity theft, voter identification seems less and less reliable as a means to reduce the possibility of massive voter fraud.
Logistics and actual efficacy aside, there is still the issue of the law of the land and the Constitution. The 24th Amendment to the Constitution of the United States says:
“Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
Which clearly restricts the ability of any government–State or Federal–in this country to charge any kind of tax or hold any tax as a reason to prohibit the vote of citizens. What does that have to do with Voter Identification you may ask? Well Attorney General Eric Holder compared voter identification to poll taxes and said he considers them illegal and unconstitutional. The language, many in support of the reform assert, says nothing about identification and therefore isn’t applicable…and they are right. Unfortunately for them there are additional rulings and precedent to the 24th Amendment that can be applied almost directly the Voter Identification issue that make the called-for reforms more readily unconstitutional.
Following the ratification of the Amendment, several states still had Poll Taxes on the books but instead applied them only to state-level elections as the Amendment expressly refers to Federal office. After the ratification of the amendment, the Supreme Court ruled in Harman v. Forssenius that Virgina’s so-called “escape clause” to poll taxes was additionally unconstitutional. The “escape clause” allowed for voters to prove their residency in the state six months prior to the election in order to avoid the tax. This residency issue is essentially paramount to the argument for voter ID, and indeed providing identification is the heart of both measures. However, according to the 1965 ruling by the Court “the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed.” Clearly the Supreme Court regards proof of residency as a prerequisite to casting a ballot as either an equivalent or milder substitute to the poll tax and therefore if Voter Identification is to get any real traction in regards to legality would require a Constitutional Amendment.
While there is some advisement that widespread voter fraud similar to what is being asserted to have taken place is possible and could potentially and illegally swing the direction of a close race, the legality of the “simple” measure is anything but simple. There would be much in terms of hoops to jump through and a large, non-existent consensus would have to be found. In the meanwhile, the possibility is there for great fraud but also a measure against systemic racism at the polls remains in place. The issue is complicated and requires more finesse than historically surmountable approaches than photo identification cards if it indeed needs remediation and reform at all. At the moment that approach is entirely illegal based on what has come before it…then again, that’s never stopped any politician before…