Former Republican FEC Commissioner Bradley Smith says that “voter ID” laws designed to suppress voting among Democratic-leaning demographic groups (poor people, old people, members of racial minorities, women) are really just fine, even though they don’t actually prevent any actual voting fraud. (Because there’s no significant amount of voting fraud committed by going to the polls and pretending you’re someone else.) Why? Because such laws make it clear how seriously we take election fraud, and therefore discourage election fraud generally. Anyway, since democracy is just one approach to government (dictatorship is just as good) the argument that the voter ID laws are undemocratic holds no water.
No, seriously. [Juicy quotes at the jump.]
Remember, this isn’t just some random wing-nut law prof. He was chosen by the Republicans as one of their three members of the Federal Election Commission. When Chief Justice Roberts casts the deciding vote to uphold the Indiana law, remember what that vote is really about.
It may be true that a voter ID law prevents very little fraud in a direct sense, though a few such cases almost certainly exist; but like fixing broken windows and cleaning up litter and graffiti, such a basic procedure may prevent fraud from growing. It sends a message that voting is serious—at least as serious as cashing a paycheck or buying cigarettes, both of which require photo ID. The mere sense that someone is likely to ask for ID may be perceived by would-be perpetrators as increasing the odds of being caught and identified in some other type of fraud (or, we should add, voter intimidation scheme). It brings a sense of order and modernity to elections, and as such may be perceived as indicative that other forms of fraud, such as absentee ballot fraud, are also being watched and are likely to be caught.
Paraphrasing Judge Posner:
… whether or not a particular individual votes, or has a ballot counted, does little to protect that individual’s rights. And from the standpoint of a single individual, the right to speak, to bear arms, or even to assemble with others is probably a far more effective tool for preserving other rights than is voting. An individual’s single vote will usually be far less effective in changing government policy than his ability to speak and publish, allowing him to convince many of his fellow citizens that government policy is wrong; or than his ability to own property, allowing him to protest government policy without fear of material deprivation by the government. For any given individual, voting is also ineffective as a means of political expression, due to the secret ballot.
If, as the ultimate logic of Judge Posner’s Crawford opinion suggests, voting has little value as an individual “right,” then what is it? It is a power granted to participate in governance of the state—a collective, instrumentalist tool that exists to assure good government, part of which includes, as Yick Wo might have stated, protecting individual liberties, such as freedom of religion or the right to property. But such rights and liberties may also be protected—indeed, better protected—in other ways, such as through the structure of government (including bicameralism, separation of powers, and federalism) or limitations on government power (including the Bill of Rights and the doctrine of enumerated powers), though in fact many of these protections have been seriously eroded over the last seventy-five years.
Furthermore, though voting is one means among many to protect rights and liberties, if unchecked it is also the power to destroy rights and liberties. Individuals who violate our rights, through robbery, criminal assault, torts and the like, are subject to punishment. But who is punished when the government violates substantive rights through acts of the legislature, serving as the duly elected representatives of the people? Private citizens may not lawfully turn the right to bear arms into a means to seize the property of some and give it to others (through armed robbery, theft and the like), but they may use their votes to empower their legislatures to do so, as the Supreme Court’s Kelo v. City of New London decision starkly reminds us. Thus, while voting is not terribly important as an individual right, there may be powerful reasons to check its use as the power to destroy liberty.
The logic of Judge Posner’s Crawford opinion, therefore, suggests that the Court’s longstanding treatment of voting as something akin to an individual “super right”—a treatment that has underscored nearly every judicial opinion in the area of voting rights from Reynolds through Bush v. Gore—is fundamentally in error. While it is highly unlikely that affirmation would result in a sudden sea change in the Court’s jurisprudence, Crawford could be the thin edge of the wedge that calls for long-term adjustment in the Court’s voting jurisprudence. Such an adjustment would place greater emphasis on the role of voting in creating good government, granting governments, in some ways for better and in others, potentially, for worse, more leeway in crafting redistricting and voting procedures.
Got that? It’s OK to make voting rules in order to disenfranchise people you think will vote the “wrong” way.
And here’s the plum, from Bradley’s reply to his interlocutor:
Professor Foley’s conclusion that, because “people don’t always agree about what justice . . . requires,” democracy is the only process that can “resolve their differences of opinion about justice . . . in order to live together,” does not follow. Societies may, for example, rely on monarchy, dictatorship, the reign of judges, or some other form of social arrangement to assure social peace. Democracy is not the only option. We have adopted it because we have concluded in light of theory and experience, and rightly in my view, that it is the best option. But if democracy is adopted because it is seen as the best way to sustain political peace and valued substantive rights, it does not follow that there can be no restriction on voting.