Broken Windows Theory Justifies Voter ID Laws?

30 11 2007

Voter ID proponents say the strangest things.

Take, for example, Capital University law professor Bradley Smith who tried to rationalize his support for Indiana’s onerous voter ID law by comparing it to the broken window theory.

First a little background on the Indiana law.

Prior to the enactment of the Indiana voter ID law in July of 2005, Indiana election officials verified the identities of voters by comparing photographed signatures or by satisfying other HAVA requirements which included both photo and non-photo IDs.

But under the new law, voters must present a government-issued photo ID before casting a ballot, such as drivers license or a passport. Other forms of identification even a military or a Congressional ID will not cut it. Additionally, even provisional ballots can only be counted, if a government issue ID is provided. With the sole exception of Georgia no other state voting identification requirements are as restrictive.

Now onto the broken windows theory. This theory was first articulated by James Q. Wilson and George L. Kelling in a 1982 article in the Atlantic Monthly, where they describe the theory in the following manner:

Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and if it’s unoccupied, perhaps become squatters or light fires inside.

Or consider a sidewalk. Some litter accumulates. Soon, more litter accumulates. Eventually, people even start leaving bags of trash from take-out restaurants there or breaking into cars.

Apparently, in Bradley Smith’s mind there is a link between the pending anarchy due to rampant crime and the scant evidence of voter fraud. You can find his explanation in an online debate with law professor Edward Foley of Moritz law school. But the most striking example of his line of argument can be found in this passage:

It may be true that a voter ID law prevents very little fraud in a direct sense, though a few such cases almost certainly exist; but like fixing broken windows and cleaning up litter and graffiti, such a basic procedure may prevent fraud from growing. It sends a message that voting is serious—at least as serious as cashing a paycheck or buying cigarettes, both of which require photo ID.

The mere sense that someone is likely to ask for ID may be perceived by would-be perpetrators as increasing the odds of being caught and identified in some other type of fraud (or, we should add, voter intimidation scheme). It brings a sense of order and modernity to elections, and as such may be perceived as indicative that other forms of fraud, such as absentee ballot fraud, are also being watched and are likely to be caught. Judge Posner’s Crawford opinion may inadvertently come closest to applying the “broken windows” analogy when it briefly compared voter fraud to littering, in that both crimes are exceedingly hard to catch in the act.

This struck me as odd for a number of reasons. First, why should we ever want to apply the broken windows theory to voting? Setting aside the debates about its validity, the broken windows theory was addressing neighborhoods with rampant criminality, not voting. Voting is about citizens participating in their own self government, not breaking into cars. It also unnecessarily invites the presumption that voters, particularly those who may lack a government-issued identification, should somehow be under criminal suspicion.

Plus, in the case of the state of Indiana there is very little evidence that voter fraud exists, at least not enough to merit the law’s enactment. In fact, there is scant evidence that voter fraud is much of a problem anywhere in the country.

Secondly, justifying Indiana’s voter ID law by claiming its a preventive measure is not particularly compelling either. As already mentioned its not a widespread problem and nor are there any signs that it is posed to be one. Plus, it conflates the mere presumption of a potential explosion of voter fraud with some actual increase in election crimes. This type of muddied thinking could lead to counter productive consequences such as deterring people from going to the polls.

Thirdly, arguing that one of the two most stringent voter ID laws in the country makes people take voting seriously is laughable. Stiff fines already exist for in person voter fraud. Perpetrators can get up to 5 years in prison and fined 10,000 dollars. How do we know people do not take voting seriously already? That’s never really explained in the rest of Bradley Smith’s piece.

If its because of low voter turnout, that might be a reflection of politicians failing to engage the public or because there are other obstacles to voting such as making election day on a work day, instead of on the weekend. But I digress….

Fourthly, just because someone may need a photo ID to purchase cigarettes, alcohol, or cash a check, does not mean that everyone necessarily has a government-issued photo ID. Such people may use a school or some other non-government issued ID to obtain certain goods and services.

And even if that were not true, there is no reason why we should necessarily appeal to the standards of the marketplace whenever making decisions concerning political and civil rights. In other words, just because the market demands something of its consumers for certain transactions does not mean that the state should make similar demands of its citizens. If anything, it should be the other way around.

The Supreme Court will weigh in on the Constitutionality of Indiana’s voter ID law this term when it rules on Crawford v. Marion County Election Board. If it agrees to uphold the law, a number of people, particularly the poor, people of color, the disabled, and the elderly could marginalized from the voting process.

To see the stats of those who do not possess a government issued ID in the state of Indiana and could potentially be disenfranchised, click here.




One response

18 01 2008
Kal Palnicki

Voter fraud is not, and has not been, much of a problem. Electoral fraud committed by politicians and their lackeys is and will continue to be. It is the electoral fraud that is being ignored and obfuscated by politicians and their lackeys harping on securing elections by fighting the virtually nonexistent voter fraud.

Like a mgician they point to something somewhere away from the action so that no one will notice what they are doing. I feel I can trust voters. I have no such faith in pwer hungry politicians. Who does? Why does the media go along with this subterfuge? Is the media that overrun by naive ignorant people? Is the media colluding with them?

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