There is no such thing as a magical unicorn that trots into polling places and casts illegal votes. Unicorns are not real.
Nonetheless, under the logic of a federal judge’s decision in Greater Birmingham Ministries v. Merrill, the state of Alabama may lock many legitimate voters out of the polls — disproportionately targeting young people, low-income voters, and people of color in the process — to prevent mythical creatures that don’t actually exist from committing voter fraud.
Greater Birmingham Ministries involves Alabama’s voter ID law — a common method of voter suppression often favored by conservative lawmakers because such laws have a greater impact on groups that tend to prefer Democrats over Republicans. Voter ID proponents often justify these laws because, they claim, voter ID policies are necessary to prevent voter impersonation at the polls. But study after study has shown that this kind of fraud is virtually non-existent.
A two-year investigation by Iowa’s Republican former Secretary of State, for example, uncovered exactly zero cases of voter fraud at the polls. A similar study examining each of the 3 million votes cast in Wisconsin in 2004 reached the same result. It uncovered only seven cases of voter fraud, and none of these cases was the kind that can be stopped by requiring voters to show ID at the polls. The state of Texas, which is currently embroiled in a legal battle over its voter ID law, convicted only two people of in-person voter fraud over the course of ten years — a period when 20 million votes were cast.
In fairness, as Judge L. Scott Coogler explains at length in his opinion, Alabama’s voter ID law is much milder than the laws enacted by Texas and many other states. Alabama makes it relatively easy for people without IDs to obtain them. And it allows someone without ID to vote if two election officials “positively identify” that voter. The primary thrust of Coogler’s reasoning is that Alabama’s voter ID law is kosher because it is easy to obtain ID in Alabama, and fairly few voters are actually disenfranchised.
Alabama’s law also requires most absentee voters to “include a photocopy of their photo IDs, in a separate envelope, when they mail in their absentee ballots.” Unlike voter impersonation fraud at the polls, absentee ballot fraud is a real problem, and Coogler cites some dated evidence that it is a problem in Alabama. The case for upholding a restriction on voting is stronger in the context of absentee ballots, when that restriction targets a problem that may actually be real.
But Coogler makes a number of questionable choices in his opinion. He gives little significance, for example, to the fact that one senior lawmaker who supported the voter ID law referred to black voters as “aborigines,” or that a retired lawmaker who spend years pushing for such a law claimed that “absence of a voter ID law is ‘beneficial to the Black power structure,'” and “referred to black voters as ‘illiterates.'”
At one point in his opinion Coogler, who was appointed by President George W. Bush, also refers to Democratic lawmakers as “Democrat Legislators.” The word “Democrat” is considered an epithet when it is used as an adjective, in part because it implies that Democratic officials are rat-like.
Judge Coogler’s most remarkable statement, however, is a paragraph in which he explicitly states that voter ID laws are acceptable even if they do target an imaginary problem.
The Court finds that Alabama had “important regulatory interests” in enacting a photo ID requirement, namely, to combat voter fraud, increase confidence in elections, and modernize election procedures. The Eleventh Circuit, adhering to Supreme Court precedent, has held that these policies are legitimate. The undisputed facts show that voter fraud, albeit almost entirely in the context of absentee voting, did exist in Alabama prior to the law’s enactment. In any event, the Supreme Court has held that deterring voter fraud is a legitimate policy for a State even in the absence of any record evidence of voter fraud occurring. Thus, Secretary Merrill is not required to prove that voter fraud exists (although he has done so), that the Photo ID Law helps deter voter fraud, or that the law increases confidence in elections. Supreme Court precedent mandates that Alabama’s justifications for the law are valid.
Secretary Merrill has not, in fact, proved that voter fraud at the polls exists to any meaningful degree. Early in his opinion, Judge Coogler admits that “cases of proven in-person voter fraud in Alabama are extremely rare,” though he also notes that “there are some documented cases of absentee voter fraud in Alabama in recent history.”
This is a very important distinction because Alabama’s voter ID law targets both in-person voters and not absentee voters. If the right to vote means anything, it should mean that a state should have to offer some kind of evidence that it is restricting the right to vote in order to solve some legitimate problem. Yet Coogler’s opinion explicitly denies this notion.
Under Coogler’s logic, it is far from clear why Alabama could not disenfranchise voters to prevent leprechauns, gorgons, or rakshasas from casting an illegal ballot.
In any event, Coogler does not deserve all of the blame for this surprising conclusion, because the judge is correct that the Supreme Court has not enforced the right to vote with any vigor in cases involving voter ID.
Prior to the Supreme Court’s 2008 decision in Crawford v. Marion County Election Board, the Supreme Court determined that “a State may not burden the right to vote merely by invoking abstract interests.” Rather, it must “make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed.” Thus, under the old rule, a state that wished to burden the right to vote in order to target voter fraud at the polls had to demonstrate that voter fraud at the polls was actually a real problem justifying a law making it harder to vote.
Crawford largely abandoned this framework in order to uphold Indiana’s voter ID law. And it did so despite the fact that the Court’s plurality opinion was only able to identify a single example of in-person voter fraud in over a hundred years.
So, while Coogler’s sweeping logic may shock anyone who believed that Americans have a right to vote, it is less shocking in light of the fact that the highest Court in the nation has given precious little respect to each American’s right to choose their own leaders.