Op-Ed: Are voter ID laws the next hanging chads?

Molly McGrath is laser-focused on a job no advanced democratic society ought to require: Making sure properly registered voters do not lose their right to cast a ballot on election day because of new, stringent ID requirements they may not even know exist.

McGrath is the national campaign coordinator for VoteRiders, a nonprofit founded by two Los Angeles attorneys that devotes itself to ensuring citizens are not tripped up by the voter ID laws, many of which are being introduced this year.

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FOR THE RECORD:
Voter ID: An April 20 op-ed about hurdles created by voter ID laws said the organization VoteRiders was founded by two Los Angeles attorneys. It was founded by one L.A. attorney. —
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Since last summer, McGrath and her team have been visiting food pantries, churches, university centers and high-end condo complexes in Wisconsin, one of the states with the strictest requirements. Some of the people the team helps are transient, poor or elderly; they not only may have no driver’s license or state-issued photo ID, but they also may have difficulty getting their hands on the underlying documentation required to get one.

Others are students whose college IDs may not conform to the new rules (only 3 out of the state’s 13 four-year colleges issue IDs that meet the requirements). Still others are newly arrived workers who struggle to understand why they can get on a plane with their out-of-state driver’s license but cannot use it to vote.

“Nobody’s immune to the confusion that these laws bring,” McGrath says.

By one estimate, as many as 300,000 — 9% — of Wisconsin’s registered voters fell short of the state’s photo ID requirements before the April 5 primary. That’s more than enough to decide a close race. If November’s presidential election comes down to a percentage point or two in Wisconsin — or another swing state with similarly strict voter ID laws, such as Indiana or Virginia — we could be looking at a rerun of Florida in 2000, with voter ID as the new hanging chad. The next occupant of the Oval Office might be determined not by the will of the people but by lawyers haggling in court over voter access and the constitutionality of the ID rules.

The haggling, in fact, has been going on since Georgia and Indiana first pushed for voter ID laws in 2005. It has only intensified in the last three years, as laws in North Carolina and Texas have either been modified or deemed unconstitutional in federal court because of the burden they place on voters, especially blacks and Latinos.

To date, 34 states, all with Republican-controlled legislatures, have passed some kind of voter ID law. Sixteen of them require voters to present photo ID, and eight states get specific about the kinds of photo ID. In Texas, another state where VoteRiders is active, a concealed-carry weapon license passes muster but a student ID from a state school does not.

Ostensibly, these laws crack down on illegal voting, but study after study has shown that in-person voter fraud is in fact vanishingly rare. The more likely explanation is that the laws give the GOP a partisan edge in close races by lowering overall turnout and targeting specific groups such as students, minorities and the poor that tend to vote for Democratic candidates.

The suspicion of naked partisanship has created a blizzard of legal cases that have gone up to the Supreme Court and back down again, and the resulting knot of contradictory rulings and opinions has only compounded the confusion created by the laws. In Wisconsin, where the law was enacted in 2011 but has come into effect only this year, voters had to endure long lines at polling stations, where poll workers were often as bewildered as they were.

Almost inevitably, the confusion has created its own voter disenfranchisement. An opinion poll published six weeks before primary day found that 16% of eligible Wisconsin voters either thought, erroneously, there was no ID requirement, or they weren’t certain — a sure-fire recipe for disappointment on election day. Some voters may even have stayed away believing they did not have the correct ID when in fact they did. A study in one hotly contested congressional district in Texas in 2014 found that 9% of registered voters there had been deterred in this way — enough to sway the outcome of just about any race.

This glaringly antidemocratic mess might have been avoided if the federal courts had not been so quick to accept the GOP argument that ID laws were strictly about preventing voter impersonation schemes. Some of the justices who waved Indiana’s law through in 2007 — including Richard Posner of the 7th Circuit Court of Appeals and John Paul Stevens, since retired from the Supreme Court — have struck a much more skeptical tone since. Now Texas finds itself in the strange position of enforcing an ID law that has been roundly condemned as unconstitutional in district court but is still in force pending appeal.

How much of a difference could voter ID laws make? According to the Government Accountability Office, which has studied the question in Kansas and Tennessee, they can suppress 3% of the vote or more. Some unusually frank Republican officials have even cited this figure as their goal, in House and Senate races as well as presidential elections.

A 3% shift would have upended Barack Obama’s victories in North Carolina and Indiana in 2008 and would have come close to threatening his reelection in 2012. Wisconsin, meanwhile, has a history of presidential nail-biters, including margins of less than 1% for the Democrats in 2000 and 2004.

The Supreme Court will have opportunities to right the egregious wrongs of voter ID laws, but it is unlikely to make a substantive new ruling before the 2016 election. And so we have to cross our fingers and hope for the best in November. Molly McGrath describes primary season as “a huge dress rehearsal.” Once the combat pits the two major parties against each other, things could get truly ugly.

Andrew Gumbel’s book “Down for the Count: Dirty Elections and the Rotten History of Democracy in America,” is out in paperback.

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