The Legitimacy of Elections and Voter ID Laws

As we approach the 2016 elections - after a Democratic Party primary season now thought to have :

been - um - manipulated. See here

On July 22, 2016 WikiLeaks released around 20,000 emails apparently from top DNC officials, illustrating that Democratic officials favored Hillary Clinton over Bernie Sanders. The email release, only days away from the Democratic Primary, shed light into potential election fraud (the DNC hasn’t confirmed the accuracy of the email release) and questions regarding how Clinton won the presumptive Democratic nomination.

Or here.

Of course, these allegations are mostly from frustrated Sander supporters who now feel the burn that their votes did not count because of various types of putative fraud.

A timely topic, even from a national security point of view, because one of the potential effects such fraud in the voting process may have on how people view the legitimacy of their government - if they decide it was not really elected at all, but imposed on them by powers beyond their control, they may not support it.

And this doesn't even begin to touch the conspiracy theories that hold the recent Wikileaks revelations were some sort of Russian plot to favor Mr. Trump over Hilary - see Hillary Clinton campaign blames leaked DNC emails about Sanders on Russia, a theory which seems to suggest, as some would have it, that the real corruption was the revealing of the corruption and not the primary corruption itself, if you follow me.

Well, now, there comes before us the challenges to voter identification laws - as now represented by the 20 July 2016 Fifth Circuit Court of Appeals case Veasey v. Abbott specifically Texas Senate Bill 14:

In 2011, Texas (“the State”) passed Senate Bill 14 (“SB 14”), which requires individuals to present one of several forms of photo identification in order to vote.
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Plaintiffs claim that SB 14’s photo identification requirements violate the Fourteenth and Fifteenth Amendments to the United States Constitution and Section 2 of the Voting Rights Act because SB 14 was enacted with a racially discriminatory purpose and has a racially discriminatory effect.
Plaintiffs also claim that SB 14’s photo ID requirement places a substantial burden on the fundamental right to vote under the First and Fourteenth Amendments, and constitutes a poll tax under the Fourteenth and Twenty-Fourth Amendments. The State defends SB 14 as a constitutional requirement imposed to prevent in-person voter fraud and increase voter confidence and turnout.
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The State’s stated purpose in passing SB 14 centered on protection of the sanctity of voting, avoiding voter fraud, and promoting public confidence in the voting process. No one questions the legitimacy of these concerns as motives. The disagreement centers on whether SB 14 was passed with impermissible motives as well.
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Impermissible motives apparently including discrimination against protected classes by denying the right to vote to people for whom the burden of providing one of the various permitted forms of voter ID is too heavy and would exclude "disfavored" groups of people from participating in the election process.

There's much better analysis of the current state of voter ID laws in Richard A. Epstein's Are Voter ID Laws Racist?

There are few things as controversial in American political life as voting rights. The issue surged to the fore this past week in Veasey v. Abbott when the Fifth Circuit, by a 9-6 vote, delayed the enforcement of Texas Law SB 14. This law limited the forms of photo identification that could be used when registering to vote to state driver’s licenses, U.S. passports, military photo IDs, concealed weapon permits, and U.S citizenship certificates with photographs. Although the law provided for some exceptions for poor and disabled persons, it has been attacked as the most restrictive voting rights law in the United States.
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The issue of the constitutionality of photo IDs arose in 2008 in Crawford v. Marion County Election Board, where the Supreme Court, by a 6-3 vote, upheld an Indiana ID law that required voters to show either state or federal picture ID by denying that such a requirement unduly infringed on anyone’s right to vote. The Court only looked at the constitutional challenge and did not consider the 1982 Voting Rights Amendments, presumably because none of the parties thought it could support a claim. Instead, Justice Stevens wrote that the law was neutral on its face, and had a permissible justification of preventing voter fraud that could upset the results of individual elections and undermine public confidence in the electoral process.

One way to look at Crawford is that preventing voter fraud is important enough to justify the small burden on individual citizens of showing photo ID—a burden no greater than that faced for getting on an airplane. The record makes this view attractive. In Texas, the required IDs were held by over 95% of the population, but among the registered voters, “Hispanic and Black voters were respectively 195% and 305% more likely than their Anglo peers to lack SB 14 ID.” No one claimed this differential rate of registration was attributable to any form of state discrimination. Texas did not charge for the required ID, though there was evidence in the record that some individual plaintiffs had difficulty in navigating the system. It was also agreed that the Texas law passed in 2011 only after tremendous political struggle on a straight party-line vote, which reflected the dominance of Republicans in both houses of the Texas legislature.

There is little question that the Fifth Circuit could have easily dismissed the entire case by a respectful citation to Crawford. But instead, it took out the heavy artillery to upend the Texas statute. If Veasey survives, it will be exceedingly difficult for any photo ID law to pass muster in the United States, at least in the absence of heavily documented instances of fraud, and perhaps not even then.
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The decision in Veasey is a careless condemnation of the current system on racist grounds. It may well be that the Texas system is far from ideal, and it would be foolish for any outsider to be overconfident that the ideal set of precautions has been adopted in this case. But based on the weak evidence presented here, it is surely a mistake for a majority of the Fifth Circuit to block the law within months of a presidential election. The Supreme Court should stay Veasey and review the outcome in light of its own now denigrated decision in Crawfold. The odds are 4-4 that this will not happen.

You should read the whole 203 page decision to understand how the Fifth Circuit balanced the risk of voter fraud against that of "voter suppression."

Apparently it decided that it may be necessary to destroy fair elections (no fraud) to insure fair elections (no suppression). Or something.

UPDATE: Part of one of the dissents is priceless: From page 102 -

No one doubts our unwavering duty to enforce antidiscrimination law. But in this media-driven and hyperbolic era, the discharge of that duty requires the courage to distinguish between invidious motivation and shadows. The ill-conceived, misguided, and unsupported majority opinion shuns discernment. Because of definitive Supreme Court authority, no comparable federal court precedent in over forty years has found a state legislative act motivated by purposeful racial discrimination. Even more telling, the multithousand page record yields not a trace, much less a legitimate inference, of racial bias by the Texas Legislature. Indeed, why would a racially biased legislature have provided for a cost-free election ID card to assist poor registered voters—of all races—who might not have drivers’ licenses? Yet the majority emulates the clever capacity of Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the “truth.”

UPDATE2: NC Voter ID law struck down, too.