Voter ID: Basing Policy on Appearances

Yesterday the House passed a national voter ID bill. Naturally, both sides said silly things, because it was, after all, a congressional debate. Republican Vern Ehlers said the bill making it marginally harder for a relatively small number of people to vote would increase turnout, insulting our intelligence. Democrat Steny Hoyer called it "tantamount to a poll tax," insulting our knowledge of history and the memory of real civil rights pioneers.

Bob Bauer, a Democratic lawyer always worth reading on election issues, had some harsh words for the bill. Bauer suggests that for many Republicans, voting is a "privilege," not a "right," and that this shapes their attitude toward the franchise. In doing so, he references a discussion on this list of election law observers, which you can browse.

While the idea that voting might be a "privilege" of living in our society seems abhorent to Bauer and to most of the aforementioned list discussants, I suspect it rings true to most Americans, which may be one reason why polls show overwhelming public support for yesterday's measure. As a legal matter, though, I think there is no meaningful distinction between calling something a privilege and calling it a right. In theory there is, or ought to be: a "right" is something that can only be restricted by the state for the most necessary of reasons - "compelling" reasons. A "privilege," however, can be restricted for most any reason at all, so long as the restriction is not arbitrary. But in practice, what counts as a "compelling" interest is so malleable as to mean little. A judge can pretty much find any state interest "compelling," merely by proclaiming it so.

Here, it is interesting to look at another example of government regulation of the political process: campaign finance.

I suspect that most of the Democrats and liberals who oppose a voter ID requirement (and the vote was mainly a party line vote) also favor restrictions on campaign finance, such as the McCain-Feingold bill of a few years back, which was also mainly a party line vote (though Mr. Bauer, whom I linked above, is very skeptical of that law - peruse his past posts for a bit). Those who have found McCain-Feingold limiting their speech are probably not consoled by the notion that they still have a "right" to speak, but the state interest is so "compelling" as to overcome that right. As a practical matter, may as well call political speech a "privilege." This is especially so given that the Supreme Court has adopted a nebulous "appearance of corruption" standard as a "compelling" state interest. The Court does not define the phrase. But because there are always, in any democracy, many people who think government and politicians are corrupt, there will always be an "appearance of corruption." No democracy has ever existed without the perception of corruption by a substantial percentage of the population - and this may be a good thing, as a vigilant public may help prevent actual corruption. Anyway, it has been on this flimsy rationale that the Court has upheld campaign finance and speech restrictions.

One interesting fact is that over the sweep of American history, it is voting that has been more likely to be treated as a "privilege," and campaign contributions and speech as a "right." At the time of the Constitutional Convention and state ratifications, voting was subject to a wide variety of restrictions, including often onerous property restrictions. The idea was, in part, that one had to "earn" the right to vote, and demonstrate the long term ties to the community needed to make one a wise, responsible voter. Until well into the last century, voting was highly restricted. Restrictions applied not only on race and sex, but even on those white males otherwise eligible to vote. Conversely, campaign participation and political speech were, until the last century, wholly unregulated - that is, treated as a "right." Those who now line up on the side of more campaign finance regulation and less regulation of the voting process are not lined up with the historic understandings of the Constitution, even if they have had remarkable success in the Courts over the past 40 years.

If the case that voter ID laws will actually prevent fraud is weak, the case that it will prevent the "appearance of corruption" in our elections is strong, as the polling data shows. Moreover, in a twist of poetic if inexact justice, those most opposed to voter ID laws include many of those who have claimed most loudly and irresponsibly that our recent elections have been "stolen," thereby creating the "appearance of corruption" needed to justify the Voter ID bill, whether one calls it a "right" or a "privilege."

Further, Ehlers' comments - remember, he was the GOP congressman who claimed the Voter ID bill will encourage more people to vote by increasing confidence in elections - no longer seem quite so silly when stacked up against the claims of campaign finance reform advocates, who often make the same argument - that if we restrict the participation of some, it will encourage others to particpate.

What goes around comes around, and for many supporters of campaign finance regulation who nonetheless oppose voter ID, it has just come around with some vengeance.