It’s almost 2016, so it’s time now for the quadrennial attempts to alter election laws to benefit a specific political party or candidate. This time, it’s the Democratic Party, attacking voter ID laws in Virginia, filing suit in Federal District Court in Richmond. This brings to four the number of suits Democrats have filed against photo ID laws, beginning with North Carolina, Ohio and Wisconsin. The effort is being led by the Democrat’s lead election lawyer, Marc Elias, who I first met in November 2013 during the Attorney General recount in Fairfax.
Then, as now, he was zealously advocating on behalf of his clients. And then, as now, he was wrong. Fortunately, I could vote against him then. Now I can only comment. Needless to say, the photo ID laws championed by Mark Obenshain will undoubtedly pass muster and won’t be overturned. This lawsuit isn’t actually about the merits of the law.
I won’t get into the legal details of the lawsuit – David Rivkin over at the Wall Street Journal has a good piece that runs through those for you, if you are so inclined. Another good resource is Rick Hasen’s Election Law Blog, a must read for those who care about these issues.
There’s nothing wrong with Virginia’s photo ID law. It works as intended, provides voters with greater confidence that their right to vote isn’t being stolen through fraud and abuse, and there’s been little evidence in the 12 elections since last July (yes, 12) that the photo ID laws were depressing turnout or otherwise making it impossible for certain people to vote. Unlike some other states’ laws, photo IDs are made available at the taxpayer’s expense to anyone who doesn’t have one, and in the elections I oversaw in Fairfax County – Virginia’s largest and one of its most diverse jurisdictions – we saw no noticeable uptick in provisional voters due to lack of ID at the polls. No one is turned away on Election Day for not having an ID.
Marc knows this, as does George Soros, who is apparently bankrolling the efforts to get photo ID attacked in the courts prior to 2016.
Speaker Howell, Mark Obenshain and other Republicans who have commented on the case have said the cases are politically motivated, which they obviously are. Senator Obenshain has also raised the specter the Attorney General Mark Herring, the most political Attorney General in recent Virginia history, might choose not to defend the photo ID law in this suit. That’s a good question, given General Herring’s dislike in defending laws with which he personally or politically disagrees, and we’ll have to keep an eye on him throughout this litigation. Regardless, there is no question that this suit is politically motivated.
This has become a serious problem in election law, and a serious problem in American politics. While there has always been some nibbling around the edges, the number of laws being passed every year at the state level, not just in Virginia but across the country, is skyrocketing (109 bills in Virginia alone last session). While there has always been a philosophy of “winning isn’t everything, it’s the only thing” in politics – Too Conservative’s Vincent Harris has a piece up about the loss of ethics in politics today – the trend towards trying to alter the rules by which elections are held in order to get a little edge is getting out of hand.
Democrats accuse Republicans of this all the time. Republicans accuse Democrats of this all the time. Sometimes, even Republicans accuse Republicans of this. In the end, regardless of which side is doing it – and I’m man enough to admit that both sides play these games, especially in nomination fights – it’s a bad thing and it’s time that voters start paying attention and start holding elected and appointed officials accountable for it.
Our laws regarding elections are complex and are difficult to administer. They have to be, because they have to be fair, and they have to balance the competing needs of efficiency at the polls with the security of the ballot and integrity of elections. That’s not easy. We can have completely secure elections, but expect long lines and very low turnout. We can have very efficient elections, where every voter gets a chance to cast their ballot quickly, and every fraudster has a chance to cast your ballot for you quickly, too. We have to balance our laws out as best we can to reduce and deter fraud while ensuring that elections don’t take years.
Photo ID in Virginia is a good example of a bill that properly balances efficiency with integrity. It increases faith in the process while having little to no real impact on voter turnout. It’s been the law for a year now, and the sky hasn’t fallen. Leave it alone.
Those who want to use election laws as just another tool in the belt of a political campaign to squeak out a few more percentage points are driving nail after nail into the coffin of representative government. They may win a battle or two, but they are losing the war. We, as a body politic – not as Republicans, Democrats or everything in between but as voters – need to step up and demand that our elected and appointed representatives stop playing games with election laws to win elections.
If you have to change the rules to win, you don’t deserve to win.
