2012/08/17

Most voter ID statutes unconstitutional

Most proposed or enacted voter ID statutes include a requirement to prove eligibility to vote by presenting proof of identity, and require that proof to be some kind of government issued ID. Such requirements are unconstitutional. Voters may constitutionally be asked to prove eligibility, but not identity. The two are not the same.  Eligibility can be proved without revealing identity. It is unconstitutional to deny a right or privilege for failure to present something one is not constitutionally required to possess, and there is no constitutional authority that requires anyone to even have a name.

Eligibility can be proved in various ways that do not disclose identity. The traditional way was for a notary or other official who knows the person to testify that he is eligible. His testimony, such as an affidavit, would be the proof. The individual's identity would be disclosed to the notary, but need not be disclosed to anyone else. Now of course the witness has to be trustworthy, but that is no different from trusting the clerk who prepares and issues an ID card.

Some go so far as to propose a national ID system. Proponents of such a system suffer from a naive faith that government is benign, with only rare exceptions, and can be trusted with the power that would come with control of personal identification in their hands. But such an ID would immediately become a national ID card for all other purposes as well, as the convenience of it would drive the emergent behavior of people everywhere.

Suppose such a proponent says something critical about some government official. Suppose some anonymous clerk then amends his record in the central identification database. Now he is a "fugitive, child-molesting cop-killer terrorist, armed and dangerous". Suppose he goes in to vote, and, just as he is raising his pen to sign the register, a swarm of cops pours in and guns him down, pointing to the pen and saying, "He was holding a weapon!" Cops who shot him are put on paid administrative leave pending the investigation, which finds the shooting justified, and the cops return to duty without even a negative comment on their records.

The elevation of personal identity to the importance accorded it today is an innovation in our legal tradition. Historically it has had much less importance, usually where ownership of property was involved.

Be careful what you ask for. What I described is not some paranoid rant. All of the elements of it are things that are happening to real people right now.
You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered. — Attributed to Lyndon B. Johnson or Hubert Humphrey, but unconfirmed.
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