Context for the Voter ID Case: Machines Old and New

Lines-in-the-Rain.jpgHaving written compellingly on the topic, Rick Hasen has a good roundup of materials on the recent Voter ID case decision. John Fund (via Jonathan Adler at the VC) suggests that Justice Stevens’s experience with the Daly machine may have led him to be sympathetic to fraud-prevention measures. It strikes me that more recent history provides just as (or perhaps more) relevant context for deciding the case. Consider this excerpt from Steven Rosenfeld’s essay in the book Loser Take All:

The Brennan Center for Justice at New York University Law School has found that 25% of adult African-Americans, 15% of adults earning below $35,000 annually, and 18% of seniors over sixty-five do not possess government-issued photo ID. . . .

Jim Crow has returned to American elections, only in the twenty-first century, instead of men in white robes or a barrel-chested sheriff menacingly patrolling voting precincts, we are more likely to see a lawyer carrying a folder filled with briefing papers and proposed legislation about “voter fraud” and other measures to supposedly protect the sanctity of the vote. . . .

While various studies — such as a 2006 Election Assistance Commission report by Tova Andrea Wang and Job Serebrov, and a 2007 study by Lorraine Minnite of Barnard College — have found modern claims of a voter fraud “crisis” to be unfounded, that has not stopped states from adopting remedies that impose burdens across their electorate and on voter registration organizations. “Across the country, voter identification laws have become a partisan mess,” Loyola University Law Professor Richard Hasen said in an Oct. 24, 2006 Slate.com column. . .

***

According to a Brennan Center and Lawyers’ Committee for Civil Rights Under Law report, there were four “connected pieces of strategy” to politicize the enforcement of voting rights by the Department of Justice from 2004 through 2007: “fomenting fear of voter fraud;” “dismantling the infrastructure of Justice;” “restricting registration and voting;” and “politically motivated prosecutions.” . . .

[In 2004,] thousands of African-Americans wait[ed] for hours outside in a cold rain to vote the previous November in Ohio’s inner cities. Many elected Democrats and voting rights attorneys saw the delays as intentional voter suppression resulting from partisan election administration. To some, it stirred memories of the segregated south.

I’m glad Justice Stevens has a long historical memory–perhaps that’s the upside of an aging Supreme Court. But current events are key here. With the recent Voter ID case, the old Ely-an ideal of a “representation-reinforcing” Supreme Court takes one more step into the twilight.

Photo Credit: Uncounted: The Movie.

UPDATE: For the case’s privacy implications, check out Bill McGeveran here; for the inadequacy of current remedial schemes, see Howard Wasserman.

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