Opinion: Fight voter 'fraud' without voter suppression

Originally published: September 14, 2012 12:36 PM
Updated: September 14, 2012 6:58 PM
By SOL WACHTLER AND DAVID GOULD  

Photo credit: Paul Tong / Tribune Media Services | "Perhaps the most outrageous aspect of these voter identification laws is the lack of outrage from the general public," write Sol Wachtler and David Gould.

The Pennsylvania State Supreme Court heard arguments on Thursday in a challenge to the state's new voter identification law. During this past year, more than two dozen new such laws have passed in 19 states, according to the Brennan Center for Justice at New York University School of Law. These laws impose various burdens, all requiring voter I.D.s. Some have been ruled unconstitutional by federal courts, but others remain on the books.
Proponents of these laws say they prevent fraud by keeping noncitizens from the polls and others from voting in the name of another person. But in most of those 19 states, there was not a single documented case of a person voting in the name of another, and no state could point to more than a handful of any alleged incidents of fraudulent voting. One is drawn to the conclusion that these laws were put in place to suppress certain voter groups. And given that many members of poor minority communities don't drive cars and therefore have no driver's licenses, or cannot afford the fee for voter ID cards, or may not have been born in hospitals, making it harder to obtain birth certificates, it doesn't require genius to discern which voters are being suppressed.

The supporters of the identification laws and their claim of a goal to suppress voter fraud, not to burden the voting rights of traditionally Democratic voters, is as believable as the bygone supporters of the poll tax who claimed the (now outlawed) tax was not meant to suppress the black vote but was an essential means of having a "reliable indicum of continued residence."

Recently Rush Limbaugh told his listeners that the "Democrat Party is encouraging voter fraud," which must be stopped. Of course, he offers no proof of this outrageous charge. In addition, employing the kind of voter fraud these statutes purport to combat is something in which no sentient person or organization would engage. The risk-to-reward ratio is all out of whack. The unlawful voter risks a felony conviction and the political organization that sponsored it risks a ruinous scandal. The upside is one vote.

Stalin reportedly once said that it's not important who votes, it's important who counts the votes. Remember that in the last "election" before his downfall, Saddam Hussein received more than 99 percent of the vote. Do you think he accomplished that illegitimate victory by using identity voter fraud? There are too many far more efficient ways of actually influencing the outcome of an election, where the reward is exponentially greater and the risk is close to zero.

One such way is passing voter identification laws that effectively disenfranchise many thousands of opposition voters with no risk at all. Indeed, the Republican House leader in Pennsylvania was caught on tape bragging that the Pennsylvania voter identification law would be responsible for Mitt Romney winning the state.

In 1964, this country abolished the poll tax by the 24th Amendment to the Constitution. A year later, a unanimous Supreme Court invalidated a Virginia statute meant to sidestep the 24th Amendment by allowing for the filing of a certificate of residence six months before the election as an alternative to the poll tax. Would the self-proclaimed "Constitutional conservative," strict constructionists who have spearheaded the state voter identification laws proclaim that the 24th Amendment and subsequent Supreme Court decision only outlawed the poll tax, not other nefarious means of voter suppression, the spirit of the Constitution be damned?

Yet, it is not only the spirit of the Constitution that would condemn these voter identification laws. They should also be condemned by the bedrock American belief that voting is one of our most cherished rights. That right should not be burdened absent solid proof of a great overriding need, which has not been proven. Even if identity voter fraud were a significant problem, there are many ways to deal with it that do not result in massive de facto disenfranchisement as collateral damage.

One solution to this "problem," if it existed, would be something we all see every day in stores, doctors offices and at ATMs. Small cameras take the picture of everyone undertaking a transaction. Having your picture taken in coordination with your sign-in at the polling site would chill even the most determined false voter bent on identity fraud. The fly in the ointment for sponsors of the voter identification bills is that the camera method would not disenfranchise even one voter.

If a 7-Eleven can run such a system, surely our boards of elections can do so when the benefit -- protecting our right to vote -- is so important.

Perhaps the most outrageous aspect of these voter identification laws is the lack of outrage from the public. We are Republicans, and we are outraged. Everyone ought to be.

Sol Wachtler is a former chief judge of New York State and is a professor of constitutional Law at Touro Law School. David Gould is a practicing attorney and a former assistant U.S. attorney for the Eastern District of New York.