Burden of Proof

One of the most predictable characteristics of the battle over voting rights in this country, which now largely centers on Republican efforts in a number of states to institute various photo ID requirements, is a very different take on the burden of proof. Again and again, progressives point to the signal lack of evidence of any “voter fraud” problem anywhere. In Texas, the state that has filed suit to strike down the entire preclearance procedure of the Voting Rights Act of 1965 because the Justice Department refused to preclear its new photo ID law, there have been during the last two election cycles a grand total of four allegations made to the Attorney General’s office of people ineligible to vote impersonating qualified voters. As Think Progress’ Josh Israel notes, these are pretty damning statistics:

Though [Gov. Rick] Perry has claimed Texas has endured “multiple cases” of voter fraud, even of the paltry 20 election law violation allegations the state’s attorney general handled in the 2008 and 2010 elections, most related to mail-in ballot or campaign finance violations, electioneering too close to a polling place, and a voter blocked by an election worker.

It is unclear how many Texans attempt to illegally check out library books while impersonating neighbors or dead people, each year. But in a state of more than 25 million people, the odds of being even accused of voter impersonation in the Lone Star State are less than one in 6,250,000.

Conservatives typically ignore these numbers and instead of answering “why” new and burdensome voting requirements need to be instituted, ask “why not,” comparing proposed voting hurdles to the identification often demanded for various legal or commercial transactions, or more indirectly, asking why honest people would object to verification of their identities? Others rely on public opinion polls to “prove” the reasonableness of voter ID laws, a particularly shaky argument for conservatives who in other contexts believe unnecessary regulations and mandates are intolerable regardless of public support for their purposes.

Aside from the obvious fact that people in both parties understand these requirements would have a disproportionate impact on people more likely to vote Democratic, this kind of dispute often misses the rather obvious point that many conservatives do not view participation in elections as a fundamental right of citizenship. Occasionally they even admit it, but more often that conviction is simply reflected in how the question of “voter fraud versus voting rights” is framed. Anyone viewing the right to vote as fundamental is most unlikely to support burdens placed upon it without a compelling case to show the burden is necessary. “It wouldn’t hurt you” arguments or comparisons to other transactions that do not involve the exercise of fundamental rights are irrelevant.

No wonder a growing number of conservatives favor repeal of the Voting Rights Act altogether. The reasoning is closely parallel to the now-common-place argument on the Right that the discrimination against people of color is largely a thing of the past, and that exceptional government efforts to fight such discrimination amount to a racist effort to discriminate against white people. If that’s the case, then “why not” make access to the ballot just like any other public service, many of which are conditional on compliance with all sorts of rules?

So while the debate over voting in this country often sounds like a competition of people with competing views of the facts, it’s really not: it’s a matter of basic values, and of the burden of proof borne by those who support or oppose a right to vote.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.