NRO's John Fund: Overly Burdensome Voter ID Laws Are So Cool

National Review Online contributor John Fund used anecdotal evidence of voter fraud and specious legal analysis to continue to advocate for oppressive voter identification laws.

On January 17, a Pennsylvania judge ruled that the state's voter ID law was unconstitutional under the state constitution because “hundreds of thousands of qualified voters ... lack compliant ID,” and that the state had failed to ease the burdens associated with obtaining one. As The Nation recently reported, “getting a voter ID in Pennsylvania was a bureaucratic nightmare” after the statute went into effect because "[t]here are 9,300 polling places in the state, but only seventy-one DMV offices."

But Fund apparently didn't find this scenario all that nightmarish. In a recent editorial, he dismissed the number of voters without appropriate ID as “inflated” and argued that the law should still be rescued by the state legislature:

In 2008, the U.S. Supreme Court upheld on a 6-to-3 vote the constitutionality of laws requiring voter ID at the polls. Justice John Paul Stevens, one of the left-of-center judges on the Court, wrote the opinion in a case involving Indiana's voter-ID law: He found that the Court could not “conclude that the statute imposes 'excessively burdensome requirements' on any class of voters.”

But our Constitution decentralizes our election procedures over 13,000 counties and towns, and states themselves are in charge of writing voter-ID laws should they choose to do so. Some do it better than others.

Last Friday, Judge Bernard McGinley of the Pennsylvania Commonwealth Court found that his state's voter-ID law violated Pennsylvania's constitution because the manner in which it was implemented placed an unreasonable burden on voters. The law, passed in 2012, had been blocked from taking effect while the court case against it ground forward. McGinley's decision is likely to be appealed to the Pennsylvania Supreme Court. Or the legislature could pass a new version of the law that would answer the judge's objections.

McGinley concluded that the law had been implemented in a sloppy, haphazard way and that the state had not done enough to help provide IDs to voters who lacked one.


When Pennsylvania's voter-ID law is either appealed or rewritten, let's hope that the state does a better job debunking the inflated estimates that hundreds of thousands of Pennsylvanians lacked an ID.

The state should also emphasize that even when voters show up at the polling place without an ID, they can vote on a provisional ballot. The state will count that ballot if the voter mails, faxes, or e-mails a copy of acceptable ID within six days of the election. If a person lacks the money to obtain the background documents necessary to acquire a voter ID, he can sign an affidavit attesting to that fact, after which his vote will be counted without further questions.

Fund's claim that the Supreme Court upheld the constitutionality of strict voter ID laws is misleading -- the case he references is Crawford v. Marion County Election Board, which challenged an Indiana voter ID law specifically, not the constitutionality of ID requirements in general. In the Pennsylvania case, the judge made sure to note that Crawford was not particularly relevant to his analysis, because the underlying facts that supported the legal challenges were so dissimilar. But Fund ignores this important distinction between the two cases in favor of his preferred narrative: that discriminatory voter ID laws are awesome.

Fund relies on sparse anecdotal evidence to support his claim of rampant voter fraud -- that the late Arlen Specter “may once been a victim of voter fraud” in 1967, and relies on a quote from MSNBC host Chris Matthews that he “know[s] all about it in North Philly.”

But Fund's selective quotes are a bait and switch. The type of in-person voter impersonation that strict voter ID might prevent is "virtually non-existent" -- a fact that has been extensively explained due to right-wing media's incessant misinformation on this topic. Indeed, the bipartisan Presidential Commission on Election Administration -- co-chaired by Benjamin Ginsberg, one of the most famous Republican election lawyers in the country -- recently re-confirmed its rarity. As reported by Talking Points Memo:

Voter fraud is “rare” and mostly occurs by absentee ballot, concluded a report Wednesday by the Presidential Commission on Election Administration.

“Fraud is rare, but when it does occur, absentee ballots are often the method of choice,” the report said, proposing expanded access to early voting as a measure to ease the sorts of long lines seen at the polls in the 2012 election.

The finding is likely to fuel an ongoing partisan debate across the country about the extent of voter fraud and the appropriate measures to deal with it. It is backed by other studies showing that fraud occurs but is extremely uncommon. A Justice Department study found that between 2002 and 2005, just 40 voters (out of 197 million votes cast for federal candidates) were indicted for voter fraud, and just 26 resulted in convictions or guilty pleas.

“That's my conclusion too,” wrote election scholar Rick Hasen, commenting on the commission's finding about the rarity of fraud, “but it is not the typical line of hard line Republicans like [Kansas Secretary of State] Kris Kobach.”

Fund goes on to rebuff claims of “scant evidence” of voter fraud by citing a Seventh Circuit Court of Appeals opinion that Indiana's voter ID law was necessary to prevent “voter impersonator[s]” from voting. What Fund doesn't mention is that the author of that opinion, conservative Judge Richard Posner, now questions his ruling in that case and admits that strict voter ID laws of the sort Fund champions are "now widely regarded as a means of voter suppression rather than fraud prevention."

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