Does Voter ID Inherently Discriminate?

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Dara Lind highlights a new study illustrating the subtle ways in which race influences white Americans’ opinions of voter ID laws:

The study, which was conducted by two University of Delaware professors and a Pennsylvania high school student, was fairly straightforward. It asked people whether they supported or opposed laws that required people to show a form of government-issued ID at the polls.  Some respondents were shown a picture alongside the question, of either a white voter or a black voter, and others weren’t shown a picture at all. The researchers found that black and Hispanic respondents were about equally likely to support or oppose the laws regardless of who was featured in the picture. And white respondents were as likely to support the law when they saw a picture of a white voter as they were when they saw no picture at all. But when the picture alongside the question showed a black voter, more whites supported voter ID .…

The study isn’t too surprising. Similar research has shown that whites are more likely to support harsh criminal justice policies, like stop-and-frisk, when they see images of or hear statistics about black prisoners. And voter ID is like stop-and-frisk in one important respect: it’s a race-neutral policy in theory, but in practice it ends up disproportionately harming people of color.

Bouie puts the study in context of a growing body of evidence that voter ID laws have discriminatory effects, even though that may not be their intent:

Likewise, a 2013 study from researchers Keith G. Bentele and Erin E. O’Brien found a tight relationship between race, Republicans, and voter ID. If a state elected a Republican governor, increased its share of Republican legislators, or became more competitive while under a Republican, it was more likely to pass voter ID and other restrictions on the franchise. Moreover, states with “unencumbered Republican majorities” and large black populations were especially likely to pass identification laws.

For Bentele and O’Brien, this comes down to partisanship. “These findings demonstrate that the emergence and passage of restrictive voter access legislation is unambiguously a highly partisan affair, influenced by the intensity of electoral competition,” they write. Even with the context of the other studies, I think this is right. Voter ID boosters don’t hold anti-minority animus as much as they want to maximize political advantage.

Chris Ingraham hopes the tide is turning against these laws:

The legal justification for voter ID laws stems from a 2008 Supreme Court ruling that the laws are generally applicable and nondiscriminatory, meaning that they’re not meant to reduce turnout among a particular group. But studies this year have demonstrated strong evidence for discriminatory intent behind the laws. The University of Delaware study adds to this body of evidence. It also seems that the judiciary is starting to agree: Courts have blocked the enactment of voter ID requirements in Wisconsin and Texas this year, citing these disproportionate impacts.

Even more notably, Judge Richard Posner, the Ronald Reagan appointee whose 2008 ruling in favor of voter ID was upheld by the Supreme Court, has had a change of heart. In a blistering opinion released last week, he concludes that the case for voter ID laws is at odds with the evidence.

Michael Hiltzik digs into Posner’s opinion and explains why it’s such a BFD:

Posner’s dissent in the Wisconsin voter ID case is especially telling, because he wrote the so-called Crawford decision in 2007 upholding Indiana’s voter ID law, in which he was upheld by the Supreme Court. But he has since recanted. In a 2013 book, he accepted the view that such laws are properly regarded as “a means of voter suppression rather than fraud prevention.” That’s the view that informs his latest opinion.

“There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud,” he writes, “and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.” More specifically, he observes, photo ID laws are “highly correlated with a state’s having a Republican governor and Republican control of the legislature and appear to be aimed at limiting voting by minorities, particularly blacks.” In Wisconsin, according to evidence presented at trial, the voter ID law would disenfranchise 300,000 residents, or 9% of registered voters.

On the other hand, Noah Feldman argues that Posner’s heart hasn’t changed – the evidence has:

A close reading of Posner’s opinion indicates that the judge hasn’t so much reversed his earlier view as he has taken seriously data that were unavailable in 2007. The numbers, as Posner now interprets them, do strongly suggest that the purpose of voter ID laws is to make it more difficult for poor people, especially blacks and Latinos, to cast votes. According to Posner, he wasn’t wrong in 2007. It’s just that then, there was no basis to assume that Indiana was trying to exclude minority voters. Now, there’s evidence in favor of that view.