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Fixing "Broken Windows" - the Wrong Ones - in Voter ID PDF  | Print |  Email
By Bob Bauer   
November 28, 2007

This article appeared on Bob Bauer's Blog and is reposted here with permission of the author.


In the debate so far on voter photo ID laws, the views on both sides have clustered around two broad lines of argument about how much "evidence," and of what kind, the government must have to impose these requirements.  It is not unfair to sort them into one line that passes over the question of evidence and takes no notice of partisanship, and the other that demands evidence and finds partisanship close to the heart of the matter.  Brad Smith and Ned Foley, in their recent debate, stand back from this conflict over evidence and put their cases on a more philosophical plane. How does well does this philosophical stand-off illuminate the choice the Supreme Court has to make?


Smith has a theory, a novel application of the "broken windows" policing strategy, that holds that voter identification requirements are useful in forcing citizens to take elections seriously.  According to Smith, voters should keep this space in reasonable order.  The absence of the minimal demands made of voters—e.g., an expectation that they will have ID and to bring with them to the polls—will encourage a contagious lack of respect for the electoral process that cannot but fail over time to damage it.  Soon, by this carelessness, the whole neighborhood may run down and larger problems will develop.  Smith agrees that evidence of impersonation fraud is slight.  He is not sure that this is all the state should care about, and he gives the state the room to ask for "order," within reason, to protect against large, systemic disorder, fraud included, later.


A voter disenchanted with the performance of the electoral process as it has been exposed in recent years would be struck by the incongruity of Smith’s position.  Election law changes occur at particular points in time, to respond to concrete questions and issues in the experience—the living, breathing experience—of real voters.  Broken windows and the disorder of which Smith complains are everywhere in evidence, regularly beyond the capacities of the state to deal with them, but the disarray that has become so obvious is far different from the kind that Smith would fix.  This is a capsule summary supplied by Heather Gerken:

Our election system is in scandalous shape — lost ballots, inadequate registration lists, malfunctioning machinery, and poorly trained officials. The kind of intense political battles we have seen recently have put more pressure on this creaky system than it can handle. In 2000, we almost couldn’t choose a president. In 2004, we were several thousand votes away from a similar disaster. Had just one of November’s close Senate races occurred in a state with the most serious problems, we still might not know who controls that chamber.

Now here are all the signs of poorly tended territory, a wasteland in places, and Gerken points out that elected officials have a very inadequate response to show for it.  This is the "broken windows" of our times, a process left in dismal condition by elected and appointed officials who, with a host of excuses and for all manner of asserted reasons, can’t quite get the necessary repairs underway.


How in these historical circumstances do we find that the clean-up begins with the voter and specifically with measures to make sure she is who she says she is?  A neat trick, this one; and it is a trick popular with governments and parties ready always to disown their responsibilities and shift them, by a redefinition of the problem, to voters and political opponents. 


Now Smith has more to say, which he does well and thoughtfully.  He is fair about the evidentiary issues; he presents a critical perspective about the right to vote that puts to shame the glib performance Judge Posner turned in in Crawford.  But his comments about "broken windows" rationale for voter ID is what will grab the readers’ attention.  More than he expects, perhaps, Smith’s theory exposes what so enrages critics of photo ID:  the gall of this "movement," pursuing nakedly political objectives in the name of reform, when the reform issue for our time is not the verified identification of the voters.  It is government’s failure to treat them with respect.


Ned Foley accepts that voter identification requirements might have their place, but only if done the right way, so as not to impair the franchise role in expressing, symbolically, "the equality of citizenship upon which democratic fairness depends."  Foley argues for recognition that the stricter the ID requirement, the more the flexibility the system should exhibit to the voter who, not unreasonably, cannot satisfy it.   Foley argues that a voter in Indiana who has not been able to arrange for the necessary documentation the states requires for an ID should have an affidavit option.  This is where he hopes that the Court will invest its energies—in a tailoring analysis, perhaps with a remand for the lower court to take the tailoring task seriously, as the Seventh Circuit, behind Posner’s breezy philosophizing, did not.


Another concern of Foley’s is the way that the Court decides the issue, and he hopes for a consensus decision that avoids one putting Justice Kennedy yet again in a starring role.  Three cheers to that:  he is absolutely right.  Nothing speaks more to the poverty of election law jurisprudence than first the O’Connor and then the Kennedy "solution," each excusing as acts of "moderation," a brand of judicial statesmanship, simple exertions of personal will.  It can be judged by its fruits: incoherent constitutional law. 


This Foley-Smith exchange is stimulating and fruitful, but it can give cause to worries that the "philosophical" approach can make things easy on politicians.  Elected officials and partisans, in this nationwide movement, are not acting as philosophers.  There is little sophistication in their arguments, and their goals and motives are pretty clear.  It will be telling if the Justices so rightly skeptical of politicians’ motives when reviewing campaign finance enactments will relax their standards in judging Indiana’s voter ID requirements.

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