Ohio State’s Tokaji Proposes “Grand Election Bargain” of Expanded Voter Registration, Voter ID


[Image courtesy of moritzlaw]

Yesterday, Ohio State law professor Dan Tokaji posted a draft of his forthcoming piece in the Harvard Law & Policy Review entitled “Responding to Shelby County: a Grand Election Bargain”.

The paper surveys the options available to Congress in the wake of the Shelby County case and makes the case that a “Grand Election Bargain” can and should be possible to re-establish key parts of the Voting Rights Act and resolve some of the ongoing partisan warfare over election policy. That bargain would, in essence, trade expanded voter registration (including same-day registration) for imposition of a federal voter ID requirement, which would “unite Democrats and Republicans behind a compromise package, combining the changes that each side cares about most.” (p. 937)

What’s most interesting to me, however, is the short section of the paper that actually discusses the voter ID requirement. First of all, it is far less an endorsement of voter ID than an acknowledgement that some people (i.e., Republicans) support it:

Photo-ID laws have been the primary focal point of the access-versus-integrity debate, with Republicans arguing that they are needed to prevent fraud and Democrats arguing that they will suppress the vote, particularly among racial minorities, poor people, young people, and other groups with relatively low rates of participation. The evidence that voter ID laws are an effective means by which to prevent voting fraud is practically nonexistent. The only subcategory of voting fraud that such a law could hope to prevent is in-person voter impersonation fraud, but it is extremely uncommon for voters to go to the polls pretending to be someone they are not. Even in the Crawford litigation, the supporters of photo ID were unable to document even a single incident of voter impersonation fraud in the state that the law would have prevented. Nor do voter-ID laws appear to give voters greater confidence that elections are being conducted fairly. The best argument for voter ID is the “broken windows” theory suggested by Brad Smith. He posits that requiring ID serves as a visible demonstration of the state’s commitment to stamping out fraud, which “may prevent fraud from growing,” just as cleaning up graffiti may discourage street crime. There is, however, no empirical support for the proposition that voter ID actually reduces the perception, let alone the reality, of voter fraud. (p. 932, citations omitted)

Then, Tokaji reviews the research to date on the empirical impact of voter ID and finds that it is inconclusive:

Estimates of the percentage of people without photo ID vary–and the answer depends in part on how strict the law is (for example, whether public university IDs are acceptable). A study by the Brennan Center for Justice, widely cited by voter-ID opponents, estimates that approximately eleven percent of eligible citizens lack photo ID. While some studies have found that an even higher percentage lack photo ID, supporters of strict ID requirements claim that the number is significantly lower.

Determining the impact of ID laws on turnout has proved to be difficult–and almost as contentious as the political debate. Some studies have found that strict voter-ID laws have a negative impact on turnout. Others have found no impact, a modest negative impact, or (quite surprisingly) a positive impact on turnout. The best explanation for these differing conclusions is offered by Robert S. Erikson and Lorraine C. Minnite, who conclude that the complexity of the problem and “likely marginal effect of photo ID rules makes statistical outcomes quite sensitive to research designs.” Reviewing studies touted by both sides, they conclude that it is wise to be wary of claims by both sides. While there may be some effects, “the data are not up to the task of making a compelling statistical argument.” (pp. 932-933, citations omitted)

Finally, Tokaji’s proposal on voter ID is structured to include an affidavit requirement:

Congress might use as a model the modified version of South Carolina’s voter-ID law, which was ultimately precleared after being softened significantly. In particular, the state’s photo-ID requirement was understood–and authoritatively interpreted by state authorities–to have an affidavit exception. This exception, which South Carolina has in common with several other states, should be sufficient to ensure that few voters are kept from voting or having their votes counted. Such a compromise would have the beneficial effect of settling this debate, while preempting more restrictive laws like those adopted by North Carolina and Texas. (pp. 934-935)

It’s obvious, then, that Tokaji is figuratively holding his nose when he makes ID part of the proposal, but he deems the bargain worth it:

[I]f Democrats’ acceptance of voter ID is the price that must be paid for Republican agreement to registration liberalization–including same-day registration in federal elections–then the deal is worth making. Any harms are likely to be modest, while the benefits will be substantial. (p. 935).

What isn’t clear to me is why a Republican supporter of ID would make this bargain. If Tokaji has summarized the research correctly (which I think he has), he’s observing that voter ID is likely to have little negative effect on voters. Moreover, his bargain includes an ID proposal that uses the affidavit exception that was basically imposed on South Carolina under preclearance rather than the more strict versions being challenged in Texas and North Carolina (and which could still survive judicial scrutiny).

If nothing else, this paper suggests that Democrats aren’t giving up much if they make this offer. As a negotiation strategy, that makes sense – play up the pain of your concessions in order to attain as big a benefit as possible – but I don’t know why you would admit that in advance of sitting down at the table. I’m a big fan of compromise, but I’m not really sure even the most die-hard supporter of voter ID would see this Election Bargain as all that Grand.

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