John Fund and Hans von Spakovsky, "Democrats Losing Long War Against Voter ID," Washington Examiner, October 6, 2014. Copyright © 2014 Washington Examiner. All rights reserved. Reproduced with permission.
Formerly on the editorial board for the Wall Street Journal, John Fund is currently a national affairs columnist for National Review and a senior editor at The American Spectator, a conservative political journal. He is the author of several books, including Stealing Elections: How Voter Fraud Threatens Our Democracy. Hans von Spakovsky is a senior legal fellow at The Heritage Foundation's Edwin Meese III Center for Legal Judicial Studies. He is a former litigator and served on the Federal Election Commission for two years. His work has appeared in the Wall Street Journal, Washington Times, and National Review Online.
Voter ID laws are gaining support and polls show that the public rejects the notion that they are inherently discriminatory. Providing free photo ID to minorities will have a positive impact, empowering marginalized citizens, and will not only increase voter turnout but will safeguard the integrity of the voting system.
In one month [November 2014], voters will go to the polls to elect the entire House of Representatives and a third of the Senate. Will the midterms be clean? Could some elections be stolen? Everyone ostensibly agrees that voters have a right to know that their decision is not being ignored. And a clear majority supports a simple way to make sure: voter ID.
You would not know it if you read only the New York Times or watched only MSNBC, but the Left and President [Barack] Obama are losing their fight to block the widespread introduction of voter ID cards. In courts of law and the court of public opinion, the issue is gaining traction. With few exceptions, liberal pressure groups have lost lawsuits in state after state, with courts tossing out their faux claims that ID laws are discriminatory, unconstitutional or suppress minority voting.
A Majority of Americans Support Voter ID Laws
Polls show that large majorities including Republicans, Democrats, whites, blacks and Hispanics support voter ID as a common-sense reform. The myth that voter ID is a new Jim Crow-type effort to reduce minority voting is widely rejected for the rubbish that it is—except by academia and the glitterati of the mainstream media. One Rasmussen poll found that 72 percent of the public believes all voters should prove their identities before being allowed to cast ballots, and also that when it comes to voter ID, "opinions have not changed much over the years."
Many good people are mistakenly convinced that voter ID laws and other measures to buttress the integrity of elections are discriminatory.
Properly drafted voter ID laws, with safeguards against absentee ballot fraud and strict limits on laws that allow people to register and vote on Election Day, improve public confidence in elections. Even though in-person voter fraud isn't rampant, it is easy for fraudsters to commit it without getting caught. New York City's Department of Investigation last year detailed how its undercover agents claimed at 63 polling places to be individuals who were in fact dead, had moved out of town, or who were in jail. In 61 instances, 97 percent of the time, they were allowed to vote. (To avoid skewing results, they voted only for nonexistent write-in candidates.) How did the city's Board of Elections respond? Did it immediately probe and reform them sloppy procedures? Not at all. It instead demanded that the investigators be prosecuted. Most officials don't want to admit how vulnerable election systems are, but privately they express worry that close elections could be flipped by fraud.
Take Al Franken's 2008 victory over incumbent Republican Sen. Norm Coleman. A watchdog group matched criminal records with the voting rolls and discovered that 1,099 felons had cast ballots illegally. A local TV news reporter found that nine of the 10 felons he interviewed had voted for Franken. State law allows prosecutions only of those who admit knowingly committing voter fraud, and 177 were convicted. Franken's victory margin was just 312 votes. It gave Democrats their 60th Senate seat, creating the filibuster-proof majority that helped make Obamacare law.
Many good people are mistakenly convinced that voter ID laws and other measures to buttress the integrity of elections are discriminatory. Many also say fraud isn't a serious issue. Rather than fighting such laws, however, they should be working to ensure that everyone can easily obtain an ID.
Focus Should Be on Getting Proper ID, Not Opposing Voter Laws
There is sharp disagreement over how many people lack proper identification. Former Ohio Secretary of State Ken Blackwell, who is himself black, pointed out in the Wall Street Journal that "one of the most often-cited factoids—something that sounds authoritative but is not fact-based—is the NAACP's claim that 25 percent of black American adults lack a government-issued photo ID. Think about that for a moment. This would mean that millions of African-American men and women are unable to legally drive, cash a check, board an airliner or participate in everyday activities of modern life." Hyperbole of this sort perpetuates the patronizing view that minorities are helpless victims. Liberals say Blackwell doesn't understand how high the barriers are for some people who lack ID. But if he were really wrong, it is difficult to see why so few voters apply for a free ID in states with such requirements.
The Right-Left stalemate can be broken. Former Presidents [Bill] Clinton and [Jimmy] Carter, at a voting summit in Texas in April , endorsed the idea of adding a picture ID to Social Security cards. Carter said he would "support the idea in a New York minute." Clinton said, "The idea behind this agreement is to find a way forward that eliminates error and makes the best possible decision that we can all live with."
I cannot emphasize enough the positive impact a free and easy-to-obtain photo ID will have for those who are marginalized.
The two former presidents were joined by Andrew Young, former U.N. ambassador and confidant of Martin Luther King Jr. Young told the summit: "It is our obligation to make sure that every citizen has the ability to obtain a government-issued photo ID, and the Social Security administration is ideal for making that happen effectively and efficiently." Social Security has 1,300 offices around the country, and adding a photo option for cardholders would cost just 10 cents a card, he said.
In the Georgia state legislature in 2007, Young said voter ID was not a symbol of discrimination but a "freedom card," a natural extension of President Johnson's efforts to elevate the poor and disadvantaged. "In today's world, you can't board an airplane or get into most buildings or cash a check without predatory fees or get Medicare without a photo ID," Young said. "Ensuring people have one allows them to enter the mainstream of American life and would be a help to them."
Martin Luther King III, son of the civil rights leader, adds, "If we embrace Andy's idea, we help marginalized citizens secure independence from predators and ensure them our nation's most fundamental right to vote. My father used to talk about ending the silence of good people. I cannot emphasize enough the positive impact a free and easy-to-obtain photo ID will have for those who are marginalized."
On the other side of the political spectrum, Republicans also see promise in a photo ID Social Security card. "This would help tone down the debate over who is trying to manipulate the system and actually get real ID into the hands of whoever doesn't have one—something we should all agree on," said Don Palmer, former secretary of the Virginia Board of Elections who is now with the Bipartisan Policy Center.
Election law experts say more safeguards might be necessary to curb identity theft. The Social Security Administration warns people they should "not routinely carry your card or other documents that display your number" because "someone illegally using your number and assuming your identity can cause a lot of problems." A photo ID Social Security card would thus be limited mostly to those people without any other form of ID.
Voter ID Laws Upheld by Courts
So if both sides agree, why isn't the photo ID Social Security card already available? For one thing, Obama has been silent on the issue. White House spokesman Josh Earnest told reporters last spring that the issue was being studied. But sources say the idea is disliked both by Justice Department lawyers, who automatically oppose any voter ID requirement, and the Rev. Al Sharpton, who is helping the president find a new attorney general.
The latest big loss for voter ID opponents was in Wisconsin, where a voter ID law will be in effect for the November election. The Wisconsin Supreme Court had upheld the law against a challenge based on the state constitution in July, but it remained suspended because of an injunction issued in April  by Lynn Adelman, an activist judge and former Democratic state senator. Adelman claimed it violated the 14th Amendment and the Voting Rights Act as an "unjustified burden" on the right to vote.
[Georgia's] voter ID law went into effect in 2008 after it was challenged and upheld in both federal and state court. With the law in place, voter turnout has consistently increased.
But on Sept. 12, shortly after Attorney General Eric Holder announced his intention to intervene in the lawsuit, the U.S. 7th Circuit Court of Appeals dissolved the injunction, noting in a stinging rebuke to Adelman that he had held the law invalid "even though it is materially identical to Indiana's photo ID statute, which the Supreme Court held valid in Crawford v. Marion County Election Board." Adelman had even written that he did not consider the Crawford case a "binding precedent."
It was shocking to voter ID opponents that the Supreme Court's 6-3 majority decision was written not by a conservative justice but by John Paul Stevens, a liberal. The court held that Indiana's photo ID law was constitutional and did not "qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting."
Attempts by the NAACP and the American Civil Liberties Union to persuade the Indiana Supreme Court to toss out the voter ID law also failed. Indiana's law has been in place ever since, with none of the problems that plaintiffs predicted.
It was the same in Georgia. The state's voter ID law went into effect in 2008 after it was challenged and upheld in both federal and state court. With the law in place, voter turnout has consistently increased, with 65 percent of the black voting-age population casting ballots in 2008, compared with 54.4 percent in 2004. Even without Obama on the ballot, the pattern held: While only 42.9 percent of registered black Georgians voted in 2006, 50.4 percent voted in 2010.
And Tennessee? Yes, another failure for voter ID's opponents. Tennessee's law went into effect in 2012. U.S. District Judge J. Ronnie Greer applied the rule set out by the U.S. Supreme Court, noting that "whether the plaintiff likes it or not, Crawford is the controlling legal precedent."
On the eve of the 2012 general election, South Carolina won a $3.5 million battle to protect its voter ID law against Holder's efforts to kill it. A three-judge panel dismissed the attorney general's claim that the law was discriminatory under the Voting Rights Act [VRA]. The law went into effect with no reports of problems.
Justice Department Continues to Fight Voter ID Laws
The Justice Department is also suing North Carolina and Texas over their voter ID laws. But the department suffered a setback in August when a federal judge refused to issue an injunction against North Carolina's new requirement. The Justice Department has appealed that decision and Holder may get a reversal from the 4th Circuit Court of Appeals, which Obama has stacked with liberal judges. Even if Holder wins in the 4th Circuit, however, North Carolina's law will ultimately be upheld by the U.S. Supreme Court.
The Texas case is still in court. Holder originally objected to it under Section 5 of the Voting Rights Act, claiming it was discriminatory. A federal district court in Washington, D.C., refused to dismiss his objections. But that opinion and the objection were rendered moot in 2013 when the U.S. Supreme Court, in Shelby County v. Holder, held that the coverage formula for Section 5 of the VRA, which dictated the state's inclusion under the Section 5 pre-clearance regime, was unconstitutional.
The trend is clear. Voter support for cleaner elections is strong and is attracting support in some Democratic states.
So the Texas voter ID law immediately went into effect for the November 2013 state elections. Contrary to the claims made in Holder's new lawsuit, which was swiftly filed under a different provision of the VRA, turnout in the 2013 election went up, not down, and there is no evidence that anyone's vote was "suppressed."
Holder, who is in his last weeks as Obama's top lawyer, has opposed election integrity measures despite clear evidence that voter ID laws do not disenfranchise voters. His mind was not changed even after a white 22-year-old videographer was able to obtain Holder's own ballot at his Washington polling place. The attorney general breezily dismissed the incident as "a stunt," ratcheted up his rhetoric and defied the nation's highest court, saying he would not "allow the Supreme Court's recent decision [in Shelby County] to be interpreted as open season for states to pursue measures that suppress voting rights."
Support for Voter ID Continues to Increase
Other states including Arizona, Alabama, Mississippi and Kansas have been able to implement their voter ID laws without hindrance. One of the few successes opponents can claim is in Pennsylvania, where the state government decided not to appeal a court decision to enjoin the state's voter ID law. This was no surprise given that the state attorney general, Kathleen Kane, a Democrat, reportedly dropped an investigation in 2013 into Democratic legislators who took bribes in exchange for votes or contracts, including opposition to the ID law. The Republican governor, Tom Corbett, who is losing his re-election battle, decided against an appeal apparently to avoid alienating liberal voters.
But the trend is clear. Voter support for cleaner elections is strong and is attracting support in some Democratic states. Rhode Island Secretary of State Ralph Mollis, a Democrat, persuaded his state's left-leaning legislature to pass a photo ID bill in 2011 to address problems of voter fraud in Providence and other cities. It included extensive outreach efforts, with members of Mollis' office going to senior centers, homeless shelters and community centers to process free IDs. The law has been implemented smoothly, Mollis says, and he views it as a national model.
"When the day is done, my job is to maintain the integrity of elections," he says. "Even if a state doesn't have an immediate problem with fraud, doesn't it make sense to take sensible precautions rather than wait for someone to abuse the system, and then it's too late?"
The same thinking might apply across the country, so that all citizens can become full participants in American life. Many on the Left and Right occupy common ground on the issue. Voter ID laws improve the honesty and efficiency of elections. They can also empower people on the margins of society.