The Presumption of a Fraudulent Democracy

The Supreme Court’s decision in  Crawford v. Marion County, which  upheld Indiana’s voter identification law, has been characterized as “unremarkable” or a giant leap toward  the disenfranchisement of hundreds of thousand of citizens.  For many, while it smacks of yet another step toward keeping the poor, the old, the student and the minority away from the polling booth, they can appreciate that it will be a significant weapon against voter fraud.

The New York Times editorial condemning the decision details the history of methods to keep people who don’t fall into the mainstream from voting.

[Florida’s] latest assault on democracy: a law threatening volunteer groups with crippling fines if they make small mistakes in registering voters.

Florida is not the only state trying to stop eligible people from voting. Georgia passed a law in 2005 that made voters pay for their voter ID cards — a modern poll tax. The fee was eventually removed, but the law could still block as many as 300,000 registered voters without the right ID from casting ballots. In 2004, Ohio ordered counties to throw out voter registration forms that were not on thick enough paper.

It is chilling to think that state legislators and election officials would intentionally try to make it harder for Americans to vote, but they always have — with poll taxes, literacy tests and gerrymandering. There was a time when the Supreme Court regularly struck these restrictions down. In 1966, it held Virginia’s $1.50 poll tax unconstitutional. In 1972, it ruled that Tennessee’s one-year residency requirement for voting violated the Constitution.

For most of us, these efforts won’t stop us from going to the polls and casting out vote.  And no one champions the idea of dead people voting, or live people voting multiple times.  So while we may disagree with the burdens placed on voter registration and challenges at the polls, we just can’t get too worked up about it.

But Crawford, a notable change in direction for the Supremes, is different.  Belying the decision is the presumption that everyone who comes to vote is engaging in fraud unless they prove otherwise.  The Court has institutionalized the idea that we are presumed criminals when it comes to voting, and has shifted the burden to us to prove that we are entitled.

The franchise is a bedrock of democracy.  The individuals who are elected to make decisions as to what our government does are put in place because people vote for them.  The Supremes have now held that the Constitution permits states to demand that those same people prove their worthiness to vote by satisfying its rules.  From any constitutional perspective, originalist or living, democracy was never intended to become dependent on proving one’s worth to the very government one was electing.  It’s been turned upside down.

Some will ask, then how do we stop voter fraud?  Aside from whether it’s as grave a problem as the name sounds, noting that the Supreme Court couldn’t find any contemporary proof of the evil it was purportedly curing, that’s the wrong question.  The right question is how do we protect bedrock principles of democracy when others try to tweak minor problems around the edges.  If the tweak conflicts with the free exercise of voting, then it’s not a good tweak.  Go back to the drawing board and find another one, if you can.

It may be that there is no good tweak that will prove capable of putting an end to the potential for voter fraud.  But until the consequence of voter fraud is shown to be of such a magnitude that it would undermine the bedrock principles of democracy, by diluting the legitimate vote of the People with fraudulent votes to the extent that democratic elections have lost their integrity, it’s not in the ballgame.  We don’t let the tail wag the dog (though it seems to happen constantly).

Then we come face to face with the “mainstream” problem.  The fact that “normal” people have picture IDs that they carry around with them all the time anyway, making this issue a tempest in a teapot as far as they are concerned.  I know I do.  In fact, I have a few.  So why should I care, or make a big deal out of this ruling?

Ah, the tyranny of the majority.  If that’s how we live, then everyone must live just like us.  We can’t imagine why anyone would want to live differently.  Isn’t this why the Iraqis will welcome us as heroes and adopt western democracy within weeks of throwing out the old evil dictator? 

Us normal guys don’t seem to mind being presumed criminals because we can readily prove otherwise.  And if anyone needs to be so “radical” that they can’t manage to assimilate, screw ’em.  They are probably all felons, illegals or frauds anyway.  Because we can’t imagine that there are hundreds of thousand of American citizens who don’t live exactly like us.  And if there are, then it’s their own fault for adopting some ridiculous lifestyle that creates their own problems.

But bedrock principles of democracy keep getting in the way.  Each person has an indisputable right to live the way he chooses.  Many can’t adapt so easily to our lifestyle, even though we can’t conceive of how they could not.  There is nothing “common” about common sense, and everyone does what they think best or can within the limits of their circumstances.  We can’t condemn them because we can easily live in the mainstream.  They have as much right to vote as we do.

So even though people in the mainstream may not mind that they are now presumably criminals in the eyes of their own government, anyone who strays from lifestyle orthodoxy just got screwed by the Supreme Court’s decision.  Even you better hope you don’t forget your driver’s license when you show up to vote, because then you’ve become “them”.\

There’s a  new radio program in Connecticut doing a point/counterpoint debate, with our good buddy Norm Pattis playing the role of “Shayna, the ignorant slut.”  The first debate is about the Indiana voter ID decision, with Karen Torre, the local Federalist Society wag.  Listen to the debate, and it’s important that you stick around for the end to hear Torre’s final salvo. 

When pushed to the edge, Torre explains that this voter ID law is no problem because the good people, the honest law-abiding people, the people smart enough to elect our government officials, the ones she wants to vote, all have IDs anyway and the people without IDs aren’t worthy of the vote anyway.

And that, in a nutshell, sums it up.

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