Nobody argues against the government’s right to require that airplane passengers show a photographic identification; yet when government tries to impose the same reasonable requirement on voters, liberal lawyers and activists scream bloody murder.
So it is that when the U.S. Seventh Circuit Court of Appeals ruled 2-1 in January (and effectively affirmed the decision by denial of a rehearing in April) that Indiana was within its rights to require photo IDs at the polls, the state Democratic Party and would-be voters represented by the ACLU decided (just last week) to ask the U.S. Supreme Court to reverse the decision.
But the U.S. Constitution gives to state legislatures the responsibility to “prescribe” the “times, places and manner of holding elections,” and the high court has consistently held that states have the right to impose regulations on voting in order to ensure the integrity and fairness of the balloting.
In the 1992 case of Burdick v. Takushi, the Supreme Court ruled that courts should not “subject every voting regulation to strict scrutiny” in a way that “tie[s] the hands” of states trying to ensure their elections’ integrity.
Plaintiffs in the Indiana case (Crawford v. Marion County Election Board) argued that the requirement for a photo ID would disenfranchise a fairly large number of voters. But, writing for the majority, acclaimed Judge Richard Posner noted that “the principle evidence on which the plaintiffs relied … was declared by the district judge to be ‘totally unreliable’ because of a number of methodological flaws.”
Against Posner’s logic and multiple citations of relevant case law, dissenting Judge Terence Evans struggled to find enough flexibility in Burdick to allow him to overrule the district court and the state Legislature and thus find the ID requirement invalid.
Most of his five-page dissent, however, is devoted neither to case law nor to citations of constitutional clauses, but rather to what he called “anecdotal tidbit[s]” and to his own impressions of how things ought to be.
Precise facts do not seem to matter to him: “This law will make it significantly more difficult for some eligible voters — I have no idea how many, but 4 percent is a number that has been bandied about — to vote.”
Evans also asserts, rather cavalierly, that “the percentage of eligible voters participating in elections has, for many years, been on a downward trajectory.” Wrong: From 1996 to 2000 to 2004, the voter turnout percentage in presidential elections rose from 49.1 percent to 51.3 percent to 55.3 percent, and the percentages in the last three off-year elections rose from 36.4 to 37 to 41.3 percent.
Facts may be unimportant to Evans, but his own policy advice to the elected state legislators does seem to matter: “Constricting the franchise in a democratic society, when efforts should be instead undertaken to expand it, is not the way to go.”
And again, without citing evidence, he writes: “I believe that most of the problems with our voting system … [he gives multiple examples] … are suggestive of mismanagement, not electoral wrongdoing.” This isn’t judging; it’s legislating from the bench.
Posner, on the other hand, sticks to facts, the case law and the Constitution — and he rightly notes that the Legislature has a legitimate interest in protecting against vote fraud of the sort that has been found in at least five other states that he lists.
He does not give details, but the Wall Street Journal’s John Fund wrote a whole book about the problem, “Stealing Elections: How Voter Fraud Threatens Our Democracy,” providing example after example.
For instance: “CBS’ ‘60 Minutes’ created a stir in 1999 when it found people in California using mail-in forms to register fictitious people or pets, and then obtaining absentee ballots in their names.
“By this means, for example, the illegal alien who assassinated Mexican presidential candidate Luis Donaldo Colosio was registered to vote in San Pedro, Calif. — twice.”
By both law and logic, legislatures have every right, and indeed have a responsibility, to write laws guarding against such shenanigans. The Supreme Court ought to decline the ACLU/Democratic appeal, and let Posner’s opinion stand. For if the right to vote is sacrosanct, so is the right to have one’s vote not be diminished by fraud.
Examiner columnist Quin Hillyer is a senior editor of The American Spectator.
