Regardless of where one stands on the merits of voter ID laws, I hope all would agree that the issue is too important, the stakes too high to merit more than shoddy arguments. Opponents of voter ID laws often start their arguments with a problematic and hidden presumption: they assume the very worst about proponents of the laws.  They presume a sinister partisan motive to make it more difficult for legitimate voters aligned with the Democrats to cast legitimate votes for Democratic candidates.

Judge Evans in his dissent in Crawford provides a great example of these fundamental assumptions.   

“Let’s not beat around the bush, . . . The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.”  Crawford v. Marion County Election Board, 472 F.3d 949, 954 (2007) (Evans, J., dissenting).

So does Tova Wang in her new book:

“Over the last fifty years however, Republicans have most frequently and deftly employed election law and procedures to help their party win elections…. Contemporary Republicans have made it a central part of the their election strategy to enact laws that call for practices that will reduce turnout among those who tend to vote Democratic, at least at the margins—where elections can often be won or lost.”  Tova Wang The Politics of Voter Suppression, Preface xiv. 

Do not get me wrong.  Republicans have partisan motives for passing the laws (Rhode Island notwithstanding). Republicans do believe that these laws will help them win elections. But those ideas do not discord with genuine belief that voter fraud occurs in many forms, and when it does occur, it benefits Democrats.   What I challenge is any automatic translation of that legitimate partisan motive as one to suppress legitimate votes.

Despite the fact that experts uniformly agree that our election system is broken, and that a significant majority of Americans are convinced that voter fraud and other voter shenanigans exist, ID opponents cannot wrap their minds around the possibility that Republican lawmakers were acting in good faith. Politicians are bad at many things; failing to embrace popular opinion is usually not one of them.

What about the supposed lack of evidence of voter-impersonation fraud? Doesn’t that prove that proponents could not possibly have good reasons to support the laws? We can debate the evidence issues another day. But even a total absence of evidence does not excuse the opponent’s assumptions. If the vast majority of people believe something to be true, why would lawmakers be any different? On the flip-side, I have no doubt that many opponents truly believe that voter ID laws suppress votes despite the total lack of credible evidence to sustain those convictions.

DOES IT MATTER?

If voter ID laws suppress legitimate votes, though, does it matter whether the critics simply assume that lawmakers acted in bad faith? Yes. A tainted analysis is a poor analysis. 

Imagine the law’s backers beginning their inquiry of the opposition’s arguments by assuming that opponents really just want to keep vote fraud alive. Surely some people do believe that, but not in respectable circles. Even voter ID’s strongest and most vocal proponents don’t think so little of their ideological adversaries.  

Some Republicans also believe that efforts to restrict military voting are attempts by Democrats to suppress Republican votes.  But I don’t think it sound to begin any analysis of military-voting issues by assuming nefarious, partisan voter suppression.

Consider another unrelated example: some people think that the President Obama and Democrats in Congress pushed the Affordable Care Act to destroy health care as we know it, so they could then usher in a single-payer national health system. Yet it would be silly for serious critics or judges to begin any serious critique of the law with that premise as a foundation.

Nevertheless, voter ID opponents make similar rhetorical errors.  They assume the worst about the motives behind voter ID and allow such assumptions to drive their conclusions. Furthermore, these arguments have become legal arguments too; they lie at the heart of the claim that lawmakers engaged in intentional discrimination when passing ID laws. Fortunately, the DC Circuit just rejected this argument in the Texas ID case.

I agree with Professor Hasen’s observation: “Objectivity is a [constant struggle] when analyz[ing] disputes in the voting wars.” Voting Wars, page 109. True enough. And the current critiques of voter ID provide a good example of subjective and loaded analysis.