The Supreme Court of Missouri yesterday invalidated, on state constitutional grounds, a voter identification law, and the power of the analysis lay in its simplicity and clarity.  Weinschenk v. Missouri, Case No. SC88039.  Approved government identifications, if not already (as in the case of a driver’s license) possessed, may be acquired only with effort and expense that fall proportionately on those least able to bear them.  The Missouri legislature was prepared to put people to this trouble for no well documented reason.  Any fraud reasonably anticipated, such as absentee vote fraud, would be unaddressed by the ID requirement; and there was indeed no proof that voter impersonation, the only justification for this requirement, had become a problem in the State of Missouri.

     The dissent was provided by a judge named Limbaugh, and its clarity was no less telling.  His primary complaint was that the law provided a transitional period when voters without ID could still vote provisionally, so long as they had could provide of one of the more numerous types of ID permissible under the predecessor statute.  Only with the passage of the transitional period, he ruled, would the new ID requirements be ripe for review. 

     But Judge Limbaugh does not stop there, and because he does not, he lays out the essential architecture of the case most commonly made for ID requirements.  He argues statistics, in selected Missouri jurisdictions, tending to show more recorded registrations than citizens eligible by age to vote.  But of actual demonstrated fraud—other than the kind hypothesized to be possible—there is little known or agree upon.  What might be shown are ineligible or duplicate registrations, or flawed, dated or mismanaged registration rolls.

     Limbaugh then moves to his central argument:  we can infer the potential for fraud, and imagine the intent to commit it, and this is enough.  For "why else does voter registration fraud occur if not to vote persons fraudulently registered?"  And if this is not sufficiently persuasive, as Limbaugh seems to sense, he does away with the need for any demonstration at all. 

It must be said, too, that even if there were no substantial evidence of existing voter impersonation fraud, legislatures are permitted to respond to the potential for such fraud, and they may do so ‘with foresight’ rather than ‘reactively’.  [citations omitted].  In any event, as the Carter-Baker Commission recently concluded, ‘there is no doubt that [in-person fraud] occurs and that such fraud ‘could offset the outcome of close elections.’

     The only substantial evidence before the Court, however, established that real voters—low-income, disabled and elderly—would be severely disadvantaged by Missouri’s ID requirements in seeking access to the vote.  There is even less doubt of this, and none at all that the loss of these votes—the votes of the vulnerable—could also "offset the outcome of close elections."  Some legislatures, peopled with practical politicians, do have this much "foresight," though not at all to their credit. 

Bob Bauer