The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Many of the commenters on yesterday's post about The Real Enemies of Democracy seized on something I said about voter ID laws, which have been upheld by the Supreme Court, but also much criticized by various scholars and voting rights groups. Some people were very angry that I seemed to be criticizing those laws as undemocratic, other people seemed not to understand what the paper said, so I thought I'd offer two clarifications.
Are voter ID laws good or bad? I don't really know. The scholarship I know on the topic suggests that voter ID laws don't really have a measurable effect on fraud or perceived election integrity; but they also don't really have a measurable effect on turnout. See, e.g., Cantoni & Pons; Highton; Ansolabehere (feel free to supply more and/or better studies in the comments). So maybe that means they are just a political distraction, not particularly good or bad, not important.
On the other hand, the fact that so many political groups with real skin in the game spend time fighting about voter ID laws makes me wonder if the studies are missing something. Why would legislatures spend political capital enacting them if they didn't do something? Why would groups spend scarce resources fighting them if they didn't do something? So maybe the groups who are affected by the laws know something that isn't showing up in the studies.
Yet back to the first hands, sometimes it happens that the studies are right and the people with real world experience are wrong. For instance, this fascinating investigation by Scott Alexander into weight-lifting rest periods, ultimately concludes that peer reviewed research was at least as reliable as the folk wisdom among committed bodybuilders, and indeed ultimately incorporated into some of their practices. Maybe the same thing is true of voter ID laws, and ten years from now political activists will have moved on to something that matters more. So I just don't know.
But in my view, none of that is necessarily relevant to the constitutional question about voter ID laws. To clarify my views on that, here's what I wrote in another part of the paper that I didn't quote yesterday:
Instead, there is a different vision . . . that may now hold favor at the Court. It is more modest in some respects, and more radical in others. That vision is one where the judiciary is neither championing particular substantive values nor pursuing procedural values such as perfecting democracy. Instead, it is focused on following the rules enacted by we the people and our agents. This vision explains the Court's general lack of enthusiasm for unenumerated voting rights cases. Professor Karlan focuses on Crawford v. Marion County Election Board, where the Supreme Court upheld Indiana's voter ID law. In her objection to the decision, she quite plausibly argues that the voter-fraud justifications for such laws are overstated, and that the partisan motivation for the laws are understated. But the decision makes much more sense when viewed from one step further back. The Constitution contains many different provisions dealing with the franchise – a rule tethering the right to vote in federal elections to the right to vote in state elections, rules against discrimination on the basis of race, color, previous condition of servitude, sex, or age, and so on. But it contains no universal suffrage principle and no anti-partisanship principle. And it is unlikely that these principles can be found stashed away in the original meaning of other constitutional principles either. The Court's deferential test in Crawford may thus reflect a skepticism about the positive law pedigree for the entire enterprise.
We could say the same thing about some of the more recent Supreme Court decisions repeatedly stopping the lower federal courts from stopping states from burdening the right to vote, such as the 2020 decision in Republican National Committee v. Democratic National Committee. There, the Supreme Court quite controversially intervened to stay a federal court decision, early in the COVID-19 pandemic, extending a Wisconsin deadline for counting absentee votes. Much ink has been spilled about the Court's use of the so-called Purcell Principle as a justification for such interventions. But I suspect that a more fundamental formalism animates those decisions as well. What in the Constitution actually authorizes federal district judges to extend state deadlines, and otherwise micromanage the franchise? A skepticism about that kind of judicial activity makes it especially natural to stay the lower courts.
This same vision also explains the Court's unwillingness to supervise partisan gerrymandering . . .
(For more, read the whole thing.)