Notice & Comment

Accuracy About Voting—Needed on Both Sides of Debate, by Edward B. Foley

foley-33This recent tweet from Professor Larry Tribe caught my eye:

As soon as I read it, I said to myself, “That can’t be right.”

First of all, no voter ever should be “turned away” for lack of ID.  Instead, the Help America Vote Act of 2002 (HAVA) requires that voters lacking required ID receive a provisional ballot. To be sure, some poll workers may fail to enforce the mandates of HAVA, but in volumes exceeding Trump’s margins of victory in Michigan (about 11,000), Wisconsin (about 23,000), and Pennsylvania (about 44,000)??? If there had been a massive failure of election administration on that scale, which could have accounted for the outcome of the presidential election, presumably we would have heard news reports of it by now.

Just because voters cast provisional ballots does not mean, of course, that those provisional ballots will be counted. In some states, a voter who casts a provisional ballot because the voter lacked a required form of ID is not permitted simply to sign an affidavit to get the ballot counted, but instead within a limited period of time must find a way to get the required ID and show it to local election officials. It is accurate to say that provisional voters who are unable to procure the required ID within the available amount of time are disenfranchised because of the ID requirement. But in Michigan, Wisconsin, and Pennsylvania, are there more voters who fall in this category than Trump’s margin of victory in each of these states? If so, then the number of rejected provisional ballots in each state would exceed Trump’s margin of victory there. I have seen no reports of provisional ballots rejected in such volumes in any of these three states—much less rejected for the particular reason of lacking the required ID, rather than for some other reason (like not being a registered voter, or casting a ballot at an improper polling place given the voter’s home address).

Instead I saw this report about provisional ballots in Wisconsin: “618 were issued because the voter didn’t have an acceptable photo ID,” of which 502 were not counted. It is unfortunate for any eligible citizen who took the trouble to go to the polls to be disenfranchised, but 502 is a far cry from Trump’s 23,000-or-so margin of victory.

It is possible, also, that the number of voters deterred from going to the polls to cast a ballot, because of a required ID law, is greater than a winning candidate’s margin of victory.  If so, then one credibly could argue that the suppressive effect of the ID law was responsible for that particular electoral outcome. Did something like this occur in Michigan and Pennsylvania and Wisconsin? I know of no evidence attempting to make this case for any of these three states. Of course, conclusively proving the deterrent effect of an ID law might be a difficult task (how would you show that the reason that a citizen didn’t go to the polls was because of the ID law?); even so, I’m not aware of any effort to make this connection.

Moreover, there are sound reasons to doubt that any such effort could be successful for any of these three states, much less all of them. According to the National Conference of State Legislature’s very useful website, Pennsylvania’s supreme court invalidated that state’s voter ID law, and thus there is no such enforceable obstacle in place there. Michigan, moreover, is one of the states that permits a voter who lacks the required ID to sign an affidavit instead. And with respect to Wisconsin’s strict ID law, for this year’s election the Seventh Circuit required the state to provide a temporary form of ID to any eligible citizen who attempted to get the required ID but was unable to do so. While the Seventh Circuit’s temporary remedy is not as voter-friendly as Michigan’s affidavit option, it does indicate that many voters who really wanted to vote this year—and thus were not easily deterred—had an available mechanism to do so and thereby could avoid disenfranchisement as a consequence of the ID law. As a result, even in Wisconsin, do we have sound reason to believe that about 20,000 would-be voters were actually thwarted from casting a ballot because of the state’s ID law?

Finally, yes, it is possible that the number of otherwise eligible citizens lacking required ID might exceed a winning candidate’s margin of victory.  But that’s a far cry from saying that this number of citizens was deterredfrom voting because of the ID requirement.  They might have been eligible citizens who, for whatever reason, decided not to vote in the election.  For an ID rule to cause disenfranchisement, it must be an obstacle that prevents, or at least deters, a citizen from voting.  It’s not enough to say more potential voters lack the required ID than Trump’s margin of victory.  That’s like saying all of Jill Stein’s voters, if she had not been on the ballot, would have voted for Hillary Clinton, as opposed to exercising the option of just not voting for president at all.

In sum, I think Tribe’s tweet is wildly irresponsible—indeed demonstrably false. The assertion that “the # of voters turned away for not having required forms of ID exceeded margin of T’s victory in MI, Pa & Wis” simply does not square with HAVA, the applicable ID rules governing these three states, or available data.

Ordinarily, I would ignore such misinformation, except that it comes from a “big name” source—a prominent Harvard Law professor, who (among other well-known accomplishments) served as one of Al Gore’s leading lawyers in the 2000 recount litigation.

As celebrated as Tribe may be, he certainly is not as well known as Donald Trump. Nor is Tribe’s tweet as egregiously false as Trump’s claim that he would have won the national popular vote were it not for “the millions of people who voted illegally.” Still, if one is to decry Trump’s blatant falsehoods about the electoral process, one must also call to account leading figures on the other side of the political aisle when they also propagate outright untruths about elections. In this context, as so many others, the Golden Rule fully applies: speak truthfully about voting as you would have others also speak truthfully about voting.

In this regard, I am also deeply disappointed about the League of Women Voters, whose website prominently displays the declaration of the League and its president, Chris Carson, that the “the 2016 presidential election WAS rigged”—a declaration subsequently reported by the Washington Post.

The League of Women Voters should know better. It is supposed to be a responsible organization about the nature of the voting process. It has a venerated history that it should not squander by sullying itself with Trump-like falsehoods about the nation’s voting process.

What is the League’s evidence that this year’s election “WAS rigged”? Among the assertions that the League makes to support its outlandish allegation is the fact that several states, including Ohio and Wisconsin, cut back the amount of early voting that they previously offered—not eliminating early voting completely, but not offering it as generously as they had before. While one certainly can disagree with this rollback of early voting as a matter of policy, it is impossible to say truthfully that this rollback disenfranchised any voter or rigged any election.

I, for one, refuse to accept the proposition that we live in a “post-truth” world, at least when it comes to talking about voting. Democracy depends on the ability of reasonable people to accept a certain set of shared premises about their electoral procedures, even if they sincerely disagree about matters of social policy, like taxes and economic regulations. Some of these essential shared premises are empirical facts about how elections actually work.

Another element of these essential shared premises is a willingness to use language carefully and precisely when talking about voting procedures. Don’t say “disenfranchisement” when you are talking about voting laws that may make voting less convenient than previously, but which do not actually prevent anyone from participating in an election. Don’t say that voters were “turned away” from the polls “for not having the required forms of ID” when, in fact, that is not what actually happened.

The overheated rhetoric of the “voting wars” has transgressed the realm of exaggeration and reached the danger zone of willful dishonesty. This must stop.

Whoever utters demonstrable falsehoods about the voting process should be condemned for doing so, whether these falsehoods come from one side or the other.


Edward B. Foley is the Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law at The Ohio State University Moritz College of Law and Director of Election Law @ Moritz. His newest book Ballot Battles: The History of Disputed Elections in the United States was published last year by Oxford University Press. This post originally appeared on the Election Law @ Moritz website. Follow Professor Foley on Twitter here: @Nedfoley.

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