Both Brad Smith and then Dan Lowenstein replied to the posting here yesterday on the politics of voter ID—which it defined as "the use of state power to produce outcomes advantageous to one political competitor over another."  Both sets of comments were thoughtfully and skillfully stated, and with Dan’s and Brad’s permission, the links are provided here, together with this response.  My answer to Dan comes first, if only because he questions, sharply and intriguingly, my "populism"—finding it very similar to that the brand practiced (as he sees it) by John Edwards and Mike Huckabee (!). 

     The Politics of ID:  Dan goes further and says that my questioning of legislative motive is "troubling."  He argues that improper political purpose is rarely enough to carry legislation:  that some who support measures like voter ID are sincere in their worries about vote fraud.  Moreover, the public approves of ID measures, when polled on the point, and politicians tend to listen to public opinion, and should.

     On legislative motive, Dan seems to me simply wrong. Legislatures over the course of history have acted consistently to serve the political interests of the majority controlling them.  No doubt they gave themselves reasons and believed in them—reasons close to or the same as those given to the public at large.  But it cannot do to say that because a legislator can give such a reason—the least we would expect from a politician—that we should not look closely at motives where the predictable effect of an enactment nicely serves a majority’s political interests. 

     Dan Lowenstein believes that it is all too "popular" today to suspect incumbents of self-dealing, and he quarrels with Justice Scalia for sharing in this suspicion.  But, of course, Scalia can hardly be faulted:  in his McConnell dissent, he merely reported what incumbents had to say about their reasons for imposing a blackout on corporate and union pre-election advertising that referred to federal candidates—advertising, to be clear, that referred to them.  Their true feelings were there to be discovered, in the pages of the Congressional Record. 

     Nor is it persuasive that the public, when asked, will favor ID and that politicians are sensitive to public judgment.  It may comfort a legislator to know that the public can be brought along.  But at no time in the recent past has the public demanded this type of legislation, which is welling up from the professional political ranks and producing not a peep among the rank and file.  The ID "movement" is a movement only in the sense that it is being moved by partisans.  Are there among them those who might also believe that it is the right thing to do?  We must assume so:  but this does not alter the organizing principle of the "movement."

     Lowenstein deplores "populism," by which he means the character of argument he believes me to have made.  I am not sure which definition of populism he is working with.  Nothing consciously "populist" is driving the case made here, in this space.  That case, simply stated, is that legislatures should be held critically to account when placing restrictions on participation; and in this instance, as the dissent in Crawford asserted unqualifiedly, the legislature’s purpose is suspect and all too familiar—a majority acting to burden a class of voters aligned with the opposition.  In other circumstances, we see the same will to power displayed by a class of politicians, incumbents, reshaping the electoral rules in their own favor.  If the objection to these activities is "populist," so be it.  On this point, I have at least consistency to plead:  I am as concerned with this form of abuse of power in every corner of the field of election law, in campaign finance regulation as well as in the definition and administration of voting rights.

     "First Principles."  Brad Smith defends his position by bypassing these political considerations and arguing first principles.  He denies that any right is being violated:  without proof of disenfranchisement, the laws can be seen to protect against the potential of fraud which, by effectively "diluting" lawful votes, produces the real disenfranchisement.  Smith argues that this is not a case where one right is in tension with another.  The same right to vote is being urged on both sides of the disagreement over ID, and on the evidence and the best guess, the right to vote is better served by ID laws—unless more can be shown about their disenfranchising effect.

     As well put as his case is, Smith is merely presenting as the stronger position the one he happens to prefer.  He seems to suggest that where the evidence is lacking, entirely or in quality or in extensiveness, the government is free to replace it with "policy."  It can come up with a restriction for which a plausible argument can be made—e.g., that we need protections against impersonation fraud—and then challenge those on the regulated end to prove serious harm.  We could have this be otherwise:  putting the government to its proof, asking more of it as a condition of action.  This is not Brad’s preference.

     Now the Supreme Court in the Purcell case has given the states a helping hand, and Brad’s position a boost, by suggesting that the state can legislate these restrictions to ease mere anxiety in the electorate about voter fraud.  The very disquiet among voters fearing fraud, which might in turn prompt them not to vote, is cause for the state to step in and sharply restrict eligibility.  A neat trick:  by restricting the franchise, the government is standing up for it, reassuring voters that their votes are safe from dilution.  This seems to me to show the bad end to which Brad’s argument can lead.  Give the state an inch and, just like that, it takes much, much more.

     Smith is right to point out that, in the ordinary course, the regulation of elections puts burdens on the voters.  He questions why this, the demand for photo ID, would be different.  It is different because it is targeted, not neutral, in its impact on different communities of voters.  Poll closings, one of his examples of another and accepted burden, span a stretch of the day, giving most voters a fair chance on a workday to get to the polls.  They have to close some time.  Photo ID requirements, strictly applied as in Indiana, have a predictably focused effect, more disruptive to certain populations—minority, low income and elderly—than others.

     The emphasis here is on "predictably," which is why we ought to worry when politicians, with all they have to do, decide that this type of regulation must command their attention.  The elected officials who pass these laws, over the opposition of their political competitors, have a predicted political effect in mind.  And Brad, more than many, has never trusted politicians or parties too much when they pass laws that are helpful to themselves and their interests but solemnly presented as in the interests of us all.

Bob Bauer