Crawford and ID Creep

Thanks to the Concurring Opinions gang for inviting me back for another visit!

I will leave it to the likes of the incredible Rick Hasen and SCOTUSBlog’s Lyle Deniston — among many, many others — to talk about the important election law elements of Monday’s Supreme Court decision on voter identification in Crawford v. Marion County Election Board. But if you are a hammer everything is a nail, and if you are a privacy scholar every newspaper story is about privacy. And the privacy implications here are rather clear.

Quite appropriately, the case was briefed, argued, and decided on the basis of the burden that Indiana’s identification requirements placed (or didn’t place) on the right to vote. The seminal cases were Harper v. Virginia Board of Elections, which held the poll tax unconstitutional, and its progeny. Other key sources cited in the opinions included the Carter-Baker Commission report and two recent federal electoral reform statutes, the motor voter law and the Help America Vote Act. The burdens considered by both the lead opinion and the dissents were pragmatic ones, largely monetary cost and inconvenience.

What about privacy burdens?

Election law doctrine does not leave much room for their consideration. In other contexts, identification requirements are viewed as potential privacy intrusions. The continuing controversy and the backlash in state legislatures against the federal Real ID Act (see, e.g., here and here) is one such area. Likewise, the 2004 decision in Hiibel, though it upheld state “stop-and-identify” laws allowing police officers to demand that a suspect disclose his or her name, was also analyzed primarily as a privacy issue.

But in Crawford, there is no mention of the privacy impact of turning voting into yet another important activity that you cannot accomplish without “showing your papers.” And since it is now basically impossible to board an aircraft, enter a federal building, or cash a check without showing ID, voter ID requirements become just another event in an accelerating trend toward an ID society.

I’m not necessarily saying that Crawford was wrongly decided. But it is remarkable that “ID creep” has played such a small role in both the legal argument and the news coverage related to this controversial case. Indeed, I suspect that crabwise movement toward a de facto ID requirement, through individual rules that necessitate ID in more and more settings, is worse than a straightforward debate on a national ID card. Great Britain is going through that debate now (see, e.g., here and here); if the end result is a true national ID then at least all the arguments for and against will be fully aired. Just a thought.

[Cross-posted at Info/Law.]

You may also like...

8 Responses

  1. I’m not a privacy guy, so I wonder what privacy scholars say about the quid pro quo of ID’s. I would strongly oppose people being stopped on the street and asked for ID (which they sometimes are) and the logical and scary next step of badges, but the cases you mention – voting and entering secure areas.

    I won’t talk about security, but with respect to voting, I would expect that access to scarce and rationed resources would almost always logically lead to identification requirements to avoid fraud and/or over-rationing. It’s why banks ask for ID before you can withdraw money.

    There are few resources more rationed than voting – one person one vote. It seems like a natural consequence and a logical quid pro quo that in order to obtain the rationed resource one must show proof of identity to ensure that the resource has not already been claimed by another.

  2. First paragraph above should say:

    “but the cases you mention – voting and entering secure areas seem different.”

  3. Michael says:

    Perhaps the concern that voter ID laws will lead to a de facto ID state are a little overblown——it’s not as if you can currently vote in any state by providing zero identification. At the very least you are required to provide a signature (a form of ID) to receive your ballot. For folks who registered via motor vehicle registration, they likely already provided multiple forms of ID to have that process completed. Voter ID laws simply establish greater parity between the requirements at the time of voting with the requirements for registering to vote.

    That said, I still think you should not need to bring anything with you to vote other than your signature and knowledge of your name, address, and perhaps other key facts (e.g., SSN, PIN, or answers to “security” questions). Why not just use fingerprints? Oh, wait. I forgot——we can’t access a database if we insist of not using electronic voting machines.

  4. Thanks, good comments.

    I am not necessarily saying the outcome of Crawford should be different, even once privacy is weighed. What concerns me here is that it isn’t even weighed in the first place. Similarly, I don’t mean to say that any particular step toward more demands for ID — including this step related to voting — represents a tipping point of unacceptable pervasiveness of ID. But again, when we don’t examine each step, we may suddenly discover that we have arrived at that tipping point without thinking enough about the issue.

  5. Maybe you could be a bit more explicit about the privacy concerns: if I represent myself as MC for a function that requires I be MC, what expectation of privacy is damaged by having to prove I am MC. What am I disclosing that isn’t already disclosed?

  6. Miriam Cherry says:

    Yay! Welcome back! 🙂

  7. Sean M. says:

    I agree with Maryland Conservative. The crux of voting is that I can only vote as me. There is no right to vote anonymously in that people can’t know you came to vote, only the right to not have your ballot matched with your name.

    So what privacy concern?

  8. MC & Sean:

    After Crawford, voting becomes one more activity in which you cannot participate without government-issued identification. Now it is already pretty hard to function in the modern world without such ID, but this is one more step toward impossibility. Also, I think probably it is the first time a fundamental right has been made contingent on having and producing such ID (depending, I suppose, on how seriously you take a “fundamental” right to travel, where of course there are passports and airport ID requirements).

    Now, for the reasons you give and others (maybe including Michael Risch’s comments too), imposing that condition may be correct or at least defensible. That’s why I tried to make clear I am not commenting on whether the outcome of Crawford is correct. Again, I am noting a narrower — but I think still remarkable — point: the complete absence of any discussion of this tradeoff. Maybe we still would end up in the same place, but we would do so with more understanding that it is another (perhaps small but still real) step toward pervasive ID requirements.

    MC, since I think of you as a bit of a libertarian I thought you might be with me on this one!