Voters take to the polls April 5 at Milwaukee City Hall in Milwaukee, Wisconsin.  A federal judge ordered the state last week to rewrite its voter ID rules.

Voters take to the polls April 5 at Milwaukee City Hall in Milwaukee, Wisconsin. A federal judge ordered the state last week to rewrite its voter ID rules.

The North Carolina voter ID law targeted African Americans with “almost surgical precision.” That’s according to a three-judge panel that decided Friday to strike down the law. Recent weeks have seen a slew of similar victories for challengers of voting restrictions: Federal courts also dealt blows to Republican-backed laws in Texas, Wisconsin and Kansas. Supporters of these laws say they address voter fraud and other issues at the polls. But is the tide now turning when it comes to voter restrictions? The latest on recent court decisions affecting voters, and what they could mean for the outcome of the presidential election.

Guests

  • Spencer Overton president, Joint Center for Political and Economic Studies; professor of Law, George Washington University Law School; author, "Stealing Democracy: The New Politics of Voter Suppression
  • Caleb Burns partner, Wiley Rein’s Election Law & Government Ethics Practice
  • Richard Hasen professor of law and political science, University of California, Irvine; author, "Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections"
  • Ron Elving senior Washington editor, NPR News
  • Jay DeLancy Director, Voter Integrity Project of North Carolina

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. We're approaching the first presidential election since the Supreme Court struck a key part of the Voting Rights Act in 2013. Now, challengers to voter restrictions are seeing a wave of legal victories with decisions in North Carolina and Texas among others. Here to talk about how these rulings could change the voting landscape before November, Spencer Overton of the Joint Center For Political and Economic Studies, Ron Elving of NPR and Caleb Burns of Wiley Rein’s Election Law & Government Ethics Practice.

  • 10:07:37

    MS. DIANE REHMJoining us from the studios of NPR West in Culver City, California, Richard Hasen of the University of California, Irvine. I'm sure you'll want to weigh in. I'll be glad to hear from you. After an extended vacation, it's good to be back with you. Give us a call at 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or send us a tweet. And welcome to all of you.

  • 10:08:12

    MR. RON ELVINGGood morning, Diane.

  • 10:08:13

    MR. SPENCER OVERTONGood morning.

  • 10:08:14

    MR. CALEB BURNSGood morning.

  • 10:08:14

    REHMGood to see you all. Ron Elving, give us a little bit of background on these recent court decisions. Is this as big a wave as it looks to be?

  • 10:08:29

    ELVINGIt's a significant wave and we should say right off the top that none of these is the Supreme Court and that all of these decisions will probably percolate and that some or all of them could come before the court. And the timing of when the court might actually weigh in, either to leave the status quo of the latest decisions or the status quo anti of what existed before these latest decisions, if they sort of put them on hold, that is all unclear at this point, but should become clear in the weeks ahead.

  • 10:08:59

    ELVINGAnd so we have, for the moment, the significant wave of what we're seeing in the district and appellate courts on the federal system and that looks very good for advocates of voting rights and kind of discouraging for people who have been pushing these voter ID laws and other forms of restrictions on voting access.

  • 10:09:17

    REHMSo you've got North Carolina. You've got Wisconsin.

  • 10:09:21

    ELVINGTwo cases in Wisconsin.

  • 10:09:22

    REHMYou've got Kansas and last night, or yesterday, North Dakota. What happened there?

  • 10:09:30

    ELVINGWell, and let's not leave out Texas because Texas, in some respects, was the most moving of all of these because you have in the fifth circuit court of appeals in New Orleans, perhaps, the most conservative or one of the most conservative appellate courts and they couldn't swallow everything in the most recent Texas law so they sent it back. Now, that doesn't mean it's "struck down" necessarily, but it did sent it back for further proceedings and presumably to pass muster, it's going to have to get a little less restrictive.

  • 10:10:00

    ELVINGSo there's that. But what we've seen all across here is a pattern of the courts saying if there is a disproportionate impact on a certain kind of voter, people of color, people of low income, that's going to trigger our interfering. And just because you may have a high-minded ideal of ballot integrity, if it has a disproportionate impact, we're going to strike that -- well, maybe not strike it down, but we're going to send it back to you and we want you to at least tinker with it.

  • 10:10:30

    REHMRon Elving of NPR. Rick Hasen, take us through the decision in North Carolina, which some say is the most important of all these decisions.

  • 10:10:48

    MR. RICHARD HASENNorth Carolina's decision is important for two reasons. First, this was in a single law, the largest consolidated rollback of voting rights that I think we've seen since at least the 1965 Voting Rights Act. The court said maybe back to Jim Crow. So it was a big law and all the parts that were challenged were struck down by the court. So not just voter ID, but also rollbacks of early voting, rollback on the ability to have your vote counted if you mistakenly voted in the wrong precinct, as to those races which you were eligible to vote for.

  • 10:11:25

    MR. RICHARD HASENSo that’s one aspect that makes it a big deal. But the other aspect that makes it big deal and an even bigger deal than Texas is that the court found that North Carolina engaged in intentional racial discrimination in voting. And the reason that's significant is that, first of all, it says that racism is still alive today, which is different from what we've heard from Chief Justice Roberts in the Shelby County case in 2013 that got rid of preclearance, but it's also a big deal because it could provide the hook in a future case to put North Carolina back under Voting Rights Act preclearance, getting federal approval to make voting changes.

  • 10:12:03

    MR. RICHARD HASENAnd that's also a possibility in the Texas case down the line because even the conservative fifth circuit, when they sent the case back, they gave instructions for that trial court to look at the question of intentional racial discrimination so that's still a possibility coming down the line.

  • 10:12:19

    REHMBut not all these decisions carried the same weight and some were actually struck down, while others softened a bit. Isn't that correct?

  • 10:12:32

    HASENYes, that's right. So in North Carolina, upon the finding of intentional racially discriminatory intent, the court struck all the parts of the law that were challenged. But in Texas the court said that the law itself could stand but that it had to be softened somehow. So someone who can't get one of the narrow forms of ID would have to be able to do something and it's up to the trial court to fashion that something is. It might be filing an affidavit under penalty of perjury that you are who you say you are.

  • 10:13:03

    HASENIt might be using an old style voter ID card that Texas had before the strict law. So we don't know exactly how that softening's going to go, but that's the way some of these cases have been coming out.

  • 10:13:11

    REHMRichard Hasen, professor of law and political science at the University of California. Turning to you, Spencer Overton, take us back to the Section 5 of the Voting Rights Act and why it was struck down three years ago.

  • 10:13:33

    OVERTONWell, Section 5 was important because it required preclearance of new law. So any time a new election law was put into effect in certain parts of the country, that law had to be submitted to the federal government, either the justice department or a federal court in D.C. to insure that it was not discriminatory. In Shelby County, the Supreme Court case, five justices found that that law was outdated because it was based on a coverage formula that the court said was, you know, leads back to 1965 and that things have changed and that the coverage formula was obsolete and out of date. And as a result, there is not preclearance procedure now because there is no formula. The court struck down that formula.

  • 10:14:26

    REHMBut in North Carolina, you have individuals and especially blacks being targeted.

  • 10:14:38

    OVERTONRight. That's right. So after Shelby County, North Carolina actually amended its voter ID law to tailor it so that African American -- the IDs that African Americans were likely to have would not be accepted, right? And this happened in parts of the country. And let me just also make an important note here. Part of this is state elections in terms of, you know, state legislative matters as well as presidential elections in impact. But really, this has a huge impact in local elections, which are also nonpartisan and which we often overlook.

  • 10:15:18

    REHMSpencer Overton is president of the Joint Center For Political and Economic Studies, professor of law at the George Washington University School of Law. And to you, Caleb Burns, what was your reaction to these decisions?

  • 10:15:39

    BURNSWell, I'm always a bit puzzled when I see these decisions come down and that's fundamentally because I think we have the courts placed in a very difficult position in terms of trying to render decisions in this very important, but very difficult and complex area of the law. We are asking the courts to provide consistent and predictable opinions in an area of law that I just don't know is really suited for that kind of adjudication. And I think the North Carolina case really sort of bears this out. I mean, the first point, as the panel's been discussing, the court held that there was a discriminatory intent on the part of the North Carolina legislature.

  • 10:16:26

    BURNSWell, the courts in all of these cases realize that they've got to like into what was the intent of the legislature and it's always very difficult to try and figure that out. Do we hook up every single individual legislator to a lie detector and say, you know, what, in your heart of hearts, where you really thinking when you voted for this and then, even if we had that information, how could we aggregate that and determine what the intent of the legislature as a whole is? We see this issue arise in other areas of juris prudence and it's pretty acute here.

  • 10:16:58

    BURNSThe second issue I would point to is -- and, again, in the North Carolina opinion we see it quite a bit, is that we're requiring judges to enter political judgments and make political predictions. In the North Carolina opinion, the judge writing for the majority mentioned that before these North Carolina laws were enacted that voter turnout among the African American population has surged in 2008 and 2012 and there's a line in the opinion suggesting that the African American community was, therefore, becoming a political force.

  • 10:17:37

    BURNSWhether or not that's true, that's really a political judgment. I'd argue or at least pause it that in 2008 and 2012, there was another significant event, which was the emergence of President Obama on the ticket.

  • 10:17:49

    REHMCaleb Burns, he's a partner in Wiley Rein's Election Law and Government Ethics Practice. We'll take a short break here. When we come back, talk further, take your calls, comments, stay with us.

  • 10:20:02

    REHMAnd welcome back as we talk about recent court decisions in various parts of the country, including North Carolina, Texas and Kansas, Wisconsin as well. There's a -- you talked just before the break, Caleb, about the idea that these are difficult decisions because you cannot really, without perhaps getting into political judgments, make clear decisions about these cases. Spencer Overton, how do you see that?

  • 10:20:47

    OVERTONWell, I think that the intent point that Caleb makes is, you know, a good one, although I would say that certainly one of the reasons we have an effects test that's, you know, supplemented with the Voting Rights Act in terms of Section 2, is this notion of manageability. And, you know, one of the problems with a constitutional intent test would be the manageability piece and some people have said we need to move more to an effects test and not focus solely on intent. I think another big issue is this race or politics question, right?

  • 10:21:21

    OVERTONSo some people say, oh, well, we're just trying to win an election as Republicans and we're trying -- it's not that they're black. It's that they are Democrats and that's why we erect this, is the argument. You know, the court in North Carolina found that basically elected officials use race to achieve political ends. When you have a situation where there's racially polarized voting, right, there is this overlap. And so I don't think you can dismiss the political piece. In Selma, Alabama, the reason black folks were not allowed to vote is not 'cause they were black. It's because they would vote to overturn segregation, right?

  • 10:22:02

    OVERTONSo it was a political objective to prevent them from voting. I know Rick has some deep thoughts on this as well.

  • 10:22:09

    REHMAll right, Rick Hasen, go ahead.

  • 10:22:12

    HASENYeah, I do think that the race or party question really is at the heart of this and it's why we would need the Supreme Court to weigh in. What do you do when, especially in the South, all of the Democrats or most of the Democrats are either minority voters or support minority voting rights and all of the Republicans are white. So it's really impossible to separate. So ideally we really need the Supreme Court to weigh in as it has not on how to apply the Voting Rights Act in this area. But as Ron said at the top, the Supreme Court, right now, is short-handed.

  • 10:22:43

    HASENIt's divided four to four and I, you know, if Justice Scalia were still alive, Texas, in its case, they would've already run to the Supreme Court looking for an emergency order. Right now, in this election, I think the buck stops with the appellate courts, with all the circuit courts, with the state supreme courts and it's a really different position than we've been in, that I can remember, in these voting wars.

  • 10:23:06

    REHMWhat I'd like to understand, because initially there was the use of the word fraud again and again and again. How many instances of fraudulent voting, fraudulent registration, fraud in the election process have we actually seen, Ron?

  • 10:23:29

    ELVINGWell, that's complicated question. It may not seem like one, but it is, especially if you get into registration, which is a little bit more of a thicket. If you're talking about false representation on election day, people coming in and impersonating someone they are not or trying to vote when they have not legal voting rights, either because they're not in the country legally or because they're a felon or for whatever reason, they're not a citizen or they're in the wrong place. They don't have a right to vote in the place where they say they can.

  • 10:23:55

    ELVINGAny of those things, actually that latter case seems to be rather rare. It's been, in some cases, described as statistically almost insignificant. There really aren't that many cases of it, but the fear of it and the fear of it being in the future, the immediate future has been a driving force behind many of these laws because there's a sense that an enormous number of immigrants are going to come in and even if they're living in the shadows, they're going to somehow sneak out of the shadows and attempt to vote for president every four years.

  • 10:24:24

    REHMAll right. And we are now joined by Jay DeLancy. He's director of the Voter Integrity Project of North Carolina. Welcome to the program, Jay, and tell us, very briefly, what it is you and your organization are attempting to do.

  • 10:24:48

    MR. JAY DELANCYWell, thank you for having me, Diane.

  • 10:24:49

    REHMSure.

  • 10:24:49

    DELANCYThe -- what we've been doing for the last five years, kind of part time, but some people have great talent, retired engineers, auditors and computer data processing type people. We have done, basically conducted a great deal of research and experimentation on voter roll analysis and we, basically, our goal has been to prove that there is wide scale vote fraud. And so we've entered it from the assumption that there is and we just haven't found it. And we have found it now, but at the time, when we started, we not only didn't know how to find it, we didn't know what we were doing.

  • 10:25:31

    DELANCYBut we've learned over the past five years and there is a great deal more vote fraud than anyone realizes. And I, you know, would love to debate the -- Ron, is it, the guy who just said there was none, you know, or very little statistically which is a misnomer that is not your fault, but it's certainly the way the data has been misinterpreted.

  • 10:25:52

    REHMWell, if you can explain that, please.

  • 10:25:56

    DELANCYOkay, thank you. Yes. First off, the procedure Justin Levitt famous study -- and I spoke with Justin personally on this before he went to work for the department of justice. He is the author of a study that said that there were just a very few, like 20 or 23, something like that, credible cases of voter impersonation fraud out of a sample of over a billion votes. and when I asked him what his criteria was for calling it credible, he said a prosecution. And that's when I laughed because our organization has found lots of people who voted in North Carolina and Florida -- and this is not voter impersonation fraud, but it is fraud.

  • 10:26:37

    DELANCYAnd what we found was we could not get -- we've had a hard time -- we found about 149 of them. We've had -- so far, we've had two of them prosecuted and only one of them has been prosecuted successfully. And so in his, you know, and when you start looking at prosecutions, the academics don't realize how difficult it is to get a prosecution so that's kind of the other end of the telescope, if you will. But to the point of voter impersonation fraud, there's massive data and one is more numerical than the other. The numerical one is people being required to vote provisionally because somebody already voted using their name.

  • 10:27:18

    DELANCYAnd we've seen that in alarming numbers across our state and I'm sure it's not unique to North Carolina where they have to vote provisionally. They walk in to vote and they're told, oh, you've already voted and they go, no, I didn't. And so as a result of that, a long argument ensues and probably they wind up voting provisionally. In some cases, they run away with their hair on fire because they think someone's stolen their identity and they run to the bank. I mean, we actually had a story of that. And that's the other area.

  • 10:27:47

    REHMOkay. So help me to understand, from your view, exactly how many double registrations you've had, how many dead people are on these citizen rolls and how much -- I mean, what we're talking clearly about millions of voters across the country. You're talking about a case of 149 double registrations. Now does that number really warrant the kind of restriction you've been talking about and in favor of?

  • 10:28:32

    DELANCYOkay. Well, first off, we, being a private group or private corporation, basically, we do not have the access to the same kind of data that the election officials have so we know that 149 is a very low estimate to what's really going on?

  • 10:28:51

    REHMHow do you know that?

  • 10:28:52

    DELANCYWell, because we did not have socials and they do, the election officials do and so it's a lot easier. Now, North Carolina...

  • 10:28:59

    REHMExcuse me. I don't understand what you mean when you say socials.

  • 10:29:05

    DELANCYI'm sorry. I get to jargon-y here. The Social Security numbers, some of the more personally identifying information that people have in their voting record is not available. In most states, it's not publically available. Like, for example, some states do allow dates of birth. North Carolina does not. And so it's a lot of work for us -- in fact, we had about 35 people doing crowd source research, sorting through over 100,000 names to get to the point where we could turn over 149. But on the high end, Diane -- this is the part that people are not willing to grasp because the numbers are so large.

  • 10:29:49

    DELANCYOn the high end, North Carolina -- and first off, as far as dead voters go, we found -- our group made news in 2012 when we identified to the state about 30,000 dead people who were on the rolls without their knowledge. And then...

  • 10:30:05

    REHMWell, excuse me, but would that not be the fault of those who keep the records rather than anyone intentionally trying to defraud the government?

  • 10:30:20

    DELANCYAbsolutely. That is not a -- that is nobody's fault except it was a data problem that we helped them identify. But that helped us move forward. And see, a dead voter is more of a metaphor when you've moved out of your state and you're still registered -- say you lived in Tennessee or Virginia or whatever and you moved to Maryland and then you're still on the rolls in Virginia. You are subject -- you're just like a dead voter, only you're not dead and your name is not on a registry of dead people, but you no longer live in that state, even though you're still registered on that voter roll and that is a problem because there's too many people in that area.

  • 10:31:00

    DELANCYBut the other is the vast number that North Carolina found who had the same first name, last name, date of birth and Social Security number and they had both voted. They had voted two or more times, once in...

  • 10:31:16

    REHMOkay. When you say vast number, can you be specific?

  • 10:31:21

    DELANCYWell, I can. There are two groups here. Those are -- okay, I just mentioned four things that matched. The four -- the matched four, the people that match is not a vast number, it's only 765, but the larger number was first name, last name, date of birth and that number was a staggering 35,650.

  • 10:31:44

    REHMSo from your point of view, you want to perhaps extrapolate the numbers that you got in North Carolina and apply them, perhaps, to other states?

  • 10:32:00

    DELANCYWell, the data already indicates that 2800 of the people whose first name, last name and date of birth matched were in Michigan and another 2800 were in Illinois. And so it's -- that is not a postulate or a theory. That is actual data and so it's got the names and address of people who appeared. Now, I'm not calling them fraudulent because it appears either they voted or someone voted in their place or it could be coincidental.

  • 10:32:32

    REHMOkay. Spencer, you want to comment.

  • 10:32:34

    OVERTONYeah. So a number of these issues are administrative challenges that we need to deal with in terms of the systems as opposed to fraud. That's number one. Number two, to the extent that fraud exists, often it exists in terms of absentee ballots and photo ID requirements at the polls don't address those problems. In fact, many of these photo ID requirements don't apply to absentee ballots at all so they're targeted in a way that excludes legitimate voters, many of whom are minorities and not really dealing with the problem.

  • 10:33:06

    OVERTONAnd let me just give you an example in terms of Wisconsin. In Wisconsin, there were 61 denials of people to get a photo ID. Of that -- of the 61, 60 were qualified and most of those people were people of color who were denied. 85 percent were people of color who were denied. The one person who was denied who was not qualified mistakenly thought that she could get an ID.

  • 10:33:35

    REHMAnd you're listening to "The Diane Rehm Show." Ron Elving, the issue of timing here, just before the election, how do you read that?

  • 10:33:52

    ELVINGTo some degree it's the calendar. These cases have been percolating. They have been adjudicated over a period of time. After the laws were passed, you cannot get a court challenge to a law the moment it takes effect. It takes some time. You need to get some evidence together. You need to get your case together and argue it. But I do believe some of these courts are reacting to the approach of November.

  • 10:34:14

    REHMAnd how important are these states where these decisions come down?

  • 10:34:20

    ELVINGWell, there are really three questions in that. First is what happens in the Clinton versus Trump race? I think that's paramount in a lot of people's minds and they're talking primarily a marginal effect because most of these states, say Texas for example, are not really going to be in question in November, but maybe some of them would be. North Carolina surely would be. Wisconsin surely would be. Possibly Michigan, if you listen particularly to the Trump campaign, they think they're going to be competitive in Michigan. Others would dispute that, but that's their view.

  • 10:34:49

    ELVINGThere's a second kind of election question in November and that's everything else besides president. State election, Senate elections, US Senate elections, governorships, all the things that we've talked about that are affected by this in November. And then, finally, there are all the elections that will come after November of 2016.

  • 10:35:13

    REHMCaleb Burns.

  • 10:35:14

    BURNSYeah, I think it's a great question in terms of the timing point. Ron and I were discussing before we got on the air. My theory on this is that this is the natural outgrowth of Bush v. Gore in 2000. Politicians have realized that the legal weapon in their arsenal can be a very, very decisive one. And we've seen in the 16 years since that time period, lawyers mobilizing. In this election cycle, far more in advance, as Ron said, to get these cases filed well in advance of an election day so that they can be tried at the trial court level and then taken up on appeal as necessary and if needed, and emergency stay sought from the United State Supreme Court.

  • 10:36:02

    BURNSSo this is really the evolution, I think, of the judicial process being used for increasingly intense political purposes.

  • 10:36:12

    REHMRick Hasen.

  • 10:36:14

    HASENYeah, I would just take it in a slightly different direction to the point of let's not focus on whether or not these court cases are going to lead to different outcomes in the election, but let's ask the question as some of the courts have phrased it, which is why is the state making it harder for people to register and vote without having a good reason to do so. And so on the question of fraud in the Texas case, in the North Carolina case, in the Wisconsin case, the states basically conceded they had virtually no evidence of impersonation fraud.

  • 10:36:48

    HASENSo this debate, I think, has already been settled. So it's a different thing to talk about public confidence and there, I think, too, states with voter ID laws don't show that they voting populations with greater confidence in the electoral process than states that don’t have it. I think the real question is does the state have a good reason to make it harder to register and vote and in these cases, the courts have said often, they do not.

  • 10:37:11

    REHMRick Hasen, professor of law and political science at the University of California. We'll take a short break here. And Jay DeLancy, thank you so much for joining us. He's director of the Voter Integrity Project of North Carolina. Your calls, your comments, coming up after a short break.

  • 10:40:02

    REHMAnd welcome back as we talk about court rulings easing voter ability to get to the polls. Here's a Facebook comment from James. What is Rick Hasen's take on how restrictive voting laws have influenced the current election cycle, or have they?

  • 10:40:32

    HASENWell, I don't think we know exactly what the impact is, but I did want to bring something in to the conversation, which just happened yesterday, which is Donald Trump, the Republican candidate for president, now saying that he's worried that the election is going to be rigged. And so I do think that all of this talk about voter fraud and about voter confidence in the process, to those who would buy into Donald Trump's side of the discussion, they're going to see these decisions as an attempt to make it easier for there to be cheating in the elections, and that can't be good for our democratic process or our confidence in it.

  • 10:41:08

    REHMCaleb, you're shaking your head.

  • 10:41:10

    BURNSWell, no, I agree with Rick. I mean, it is -- it's too early to tell. I'll be interested in what Rick and Spencer and a number of the other academics are able to discern after this election cycle. You know, it's a good question, I wish I had the answer for you, but we'll wait and see.

  • 10:41:27

    REHMYeah, well, what about Trump's comments and how they affect voter thinking about the process?

  • 10:41:35

    BURNSYeah, well I think -- you know, it's not dissimilar from the other types of comments that he's made as a presidential candidate, whereby he has clearly taken the approach that sowing seeds to anxiety is a good political tool for him and is going to be beneficial to him. So I don't see this being that far afield from his general campaign approach.

  • 10:41:59

    REHMWhat do you think, Spencer?

  • 10:42:02

    OVERTONThe United States is in the bottom 19 percent of all democracies in terms of turnout. Our problem, if we have one here, is turnout, and that's particularly a big deal, focus on these national elections, and we talked about the timing, you know, the parties have the resources to invest in these national -- these lawsuits, right. MSNBC and Fox, they're paying attention to the horse race. But these local elections, over 90 percent of local elections happen at a time other than the presidential, Diane, and that's where a lot of I'll just say bad stuff is happening, especially in the absence of Section 5 of the Voting Rights Act.

  • 10:42:43

    REHMGive me an example of bad stuff.

  • 10:42:46

    OVERTONI'll give you an example. Macon-Bibb County, basically they moved the polling place from the gym to the sheriff's office here, and, you know, it had an impact in terms of the minority community not participating as much.

  • 10:43:01

    REHMFearing to go to the sheriff's office?

  • 10:43:05

    OVERTONYes, fearing to go to the sheriff's office. Another example is in 2014, Pasadena, Texas, they moved two city council districts to at large and effectively diluted Latino voting strength. Latinos were growing in the population, and to prevent them from taking those seats, they moved to at large voting system. So these kinds of things are happening across the country, but it's not on national TV, and you know, there are real problems, and often these local voters don't have money to bring lawsuits.

  • 10:43:38

    REHMAll right, let's go to Dan in St. Louis, Missouri. You're on the air.

  • 10:43:42

    DANHi Diane. Rick, I've been reading your blog since 2008, I really appreciate it. In Missouri, in-person voter fraud doesn't exist. The supermajority Republican legislature has proposed to take away common-sense voter ID laws by changing Missouri's Constitution, which voters will decide in November. If passed, this is known to disenfranchise over 240,000 Missouri voters.

  • 10:44:08

    DANThe implementing statute, the laws by which how they would law out the restrictive photo ID, in the counties, which has a $20 million price tag, was vetoed by Governor Jay Nixon. My question is, what are the implications of constitutional changes without the implementing legislation or the statutes?

  • 10:44:29

    REHMRick Hasen?

  • 10:44:32

    HASENYeah, I can't speak to the specifics of Missouri. Missouri had a voter ID law. The state supreme court years ago struck it down as violating the state constitution. That's why they're trying to amend the state constitution. But I think the question points out that these are state-by-state battles, and every voter ID law is different and how the courts address them. Each one is going to be -- is going to be a different look. The stricter the law is, the more likely it is that the court's either going to strike it down or soften it, and that's what we've seen in this series of cases over the last few weeks.

  • 10:45:02

    REHMAll right.

  • 10:45:02

    BURNSAnd I think this is an important point that Rick makes. You know, we have ID laws across the country. The question is how strict are they, right, in terms of excluding particular populations, and how generous are they in terms of, for example could you bring an expired student ID to vote, could you sign an affidavit under penalty of perjury that you are who you say you are. So there are fraud measures in place, prevention of fraud measures, really across the country, and the question is where should we fall on the continuum, to what degree -- what degree is best.

  • 10:45:40

    REHMAll right, to Margarite in Skaneateles, New York. You're on the air.

  • 10:45:44

    MARGARITEGood morning.

  • 10:45:45

    REHMHi.

  • 10:45:46

    MARGARITEI'm wondering if Rick has looked into local issues. I happened to be in South Florida on election day 2012, and the local media had a vast amount of coverage of the Board of Election closing a large number of polling places in the minority neighborhoods. So the lines at the polls in those minority neighborhoods were two hours long. And they contrasted by the voting places in the middle-class and upper-class neighborhoods, where people were able to walk in and walk out and vote. And I was really surprised that that wasn't picked up on the national level.

  • 10:46:28

    HASENYeah, I think that this question nicely illustrates what we lost when the Supreme Court decided the Shelby County case in 2013. Before that case, if a jurisdiction with a history of racial discrimination in voting made any change in voting place, even moving a polling place across the street, they'd have to get federal government permission and show that the change would not make minority voters worse off.

  • 10:46:50

    HASENAnd so Spencer is exactly right that especially at the local level, these things fly under the radar, and now without the protection of Section 5, there aren't the resources to fight all of these. There was a great report in this week's New York Times on what's happening at the local level, and that is really the battleground for these kinds of problems going forward.

  • 10:47:11

    REHMAll right, let's go to a battleground state, Charlotte, North Carolina. Jeff, you're on the air.

  • 10:47:18

    JEFFHello, thank you for your -- taking my call.

  • 10:47:19

    REHMSure.

  • 10:47:20

    JEFFI think that it's very important. I think voting is one of our -- almost our best right, I mean, one we -- it's the most important. One vote counts, and we've always been told that. We can make a decision. I don't think this is discriminatory because in this state I have to show a photo ID to buy alcohol, I have to show photo ID to get certain medications, or if I pick up like a drug from doctor, a prescription, I have to carry it there, I have to prove who I am with a photo ID.

  • 10:47:55

    JEFFWe've had two years. People thought this was coming. We should prepare. It hasn't -- hasn't really (unintelligible) looked at this or even thought about this, and if it does prevent one case of fraud, then we've done something good.

  • 10:48:10

    REHMAll right, Ron Elving?

  • 10:48:14

    ELVINGThis really is the crux, isn't it, the idea that if we prevent one case of fraud, everything else that is necessary to do that is worthwhile. I suppose that you could say that at the other end of the spectrum there are people who think that one disenfranchised person who doesn't get to vote is so outrageous that we should have no ballot integrity efforts or voter ID of any kind.

  • 10:48:36

    ELVINGBut really what has driven these laws that have driven this conversation and taken us into the courts is this notion that there is a problem with fraud, and we've talked a little bit about whether or not that is statistically a significant problem or whether it exists, and we have to find someplace to balance on the scale between two things I think everyone would agree about. It's important that everyone be able to vote, and it's important that no one be able to vote fraudulently. Everyone's against fraud, everyone is for voting.

  • 10:49:05

    ELVINGAnd as this caller said, voting is our most important right, and that, by the way, is the reason why it's different from showing an ID to buy alcohol or, for that matter, showing a photo ID to get on an airplane.

  • 10:49:20

    REHMIndeed.

  • 10:49:20

    ELVINGA lot of people make that comparison.

  • 10:49:23

    REHMHere's an email from Ann in Ellicott City, Maryland. Gosh, that flood that took place there over the weekend, I hope you're safe, Ann. She says my mother passed away several years ago at the age of 96. She had not had a valid photo ID since she gave up her driver's license in her early 80s. She voted in every election in the same county from the time she was 21. I could not imagine her being denied her right to vote because of the lack of a valid photo ID. The potential to deny a 96-year-old woman the right to vote because of a handful of known voter frauds seems unfair to me. And what do you say to that, Caleb?

  • 10:50:20

    BURNSOh, I agree. I mean, you know, to put a finer point on it, we of course would not want to disenfranchise anyone unnecessarily. And really the argument that we're seeing play out in these court cases is, well, are there alternatives to just the driver's license.

  • 10:50:43

    REHMSuch as?

  • 10:50:45

    BURNSSuch as other government-issued IDs.

  • 10:50:47

    REHMSuch as?

  • 10:50:48

    BURNSCertain states have what I'll for lack of a better phrase just an identification card, and this is what the caller from North Carolina I think was getting at when he said, you know, we've had these laws in place, there was time for people to prepare for them. But at the end of the day, the question I think for these -- in these court cases is fundamentally are those other alternatives sufficient to ensure the integrity of the voting process yet do not disenfranchise people unnecessarily, and it's drawing that line.

  • 10:51:18

    REHMWhat do you think about that, Spencer?

  • 10:51:22

    OVERTONThe purpose of democracy is to have government for, of and by the people. And the question is, will the rule take us closer to that, closer to decisions that reflect the will of legitimate citizens, or farther away from it. If we exclude too many legitimate voters, we're moving away from democracy. Obviously if we include too many, you know, improper voters, that takes us away from democracy, as well. So the question is where is that, and the facts suggest that because there's so little fraud, some of these measures disproportionately exclude legitimate voters.

  • 10:52:00

    OVERTONI want to make just one more point.

  • 10:52:02

    REHMSure.

  • 10:52:03

    OVERTONWe talked a bit about lines. In 2012, on average across the country, African-Americans waited in line almost twice as long as white, 23 minutes to 12 minutes. In Florida, people in some minority communities waited up to seven hours. The problem with this is it lowers turnout, it can change election outcomes. There are some concrete things that can be done. This week the Joint Center is going to come out with a report on how to deal with this problem.

  • 10:52:33

    OVERTONSome of this has to do with state legislatures providing adequate resources, but some of it can be done on the local level by election officials, many of whom are people of color, to ensure that there are more efficient elections, and we have shorter lines.

  • 10:52:52

    REHMAnd you're listening to "The Diane Rehm Show." And our caller in Fort Leonard Wood, Missouri, KG, you're on the air.

  • 10:53:03

    KGThank you, Diane, it's an honor to be talking on the show today. I wish to disagree with the caller from St. Louis who called a few moments ago. I believe there is voter fraud that is happening in the state of Missouri. I myself could've committed voter fraud today, but I chose not to. I could have walked into one polling place in Crawford County and voted as my deceased uncle. I could've walked in and voted as my deceased father in another location. I only voted as myself in the Missouri primary today.

  • 10:53:29

    KGAnd regarding the caller from Louisiana a moment about her 96-year-old grandmother, I drove my grandmother into a Missouri state licensing department, and she received, because she had announced her income as being low enough, a free Missouri photo ID that indeed is a Missouri state photo ID that you get if you don't have a driver's license. I find this entire argument that there is no voter fraud because there aren't prosecutions as ridiculous as to say there's no speeding because there's only so many speeding tickets.

  • 10:54:03

    REHMSpencer?

  • 10:54:03

    OVERTONSomeone could go out and get a gun and kill, you know, several people, right. That could happen. In fact, it does happen. Now does that mean that we should ban all guns in the United States and have no guns at all? Again, this is a question in terms of how do we balance preventing bad stuff from happening but then also liberty that legitimately exists that many people of all political backgrounds want to protect.

  • 10:54:32

    REHMHow could he have accomplished what he said he could have done legally? Wouldn't there have been some record of his voting the first time without his being able to carry out fraud two or three times?

  • 10:54:54

    ELVINGMy assumption would be, and of course a lot of the reason that our voting system works is that most people don't run around looking for some way to vote fraudulently...

  • 10:55:00

    REHMExactly, sure.

  • 10:55:00

    ELVINGIt's self-administered, it's self-enforced, and I assume it was by this individual, but had he done what he just said he could have done with these serial voting frauds, he would've created a record of himself doing so, which could have then been prosecuted, and that prospect is pretty good disincentive for most people.

  • 10:55:19

    REHMI would hope so. Rick Hasen, I know you wanted to jump in.

  • 10:55:24

    HASENYeah, I was going to say that for a book I wrote in 2012 called "The Voting Wars," I looked for any case in the United States that I could find where impersonation fraud was used to swing an election. I couldn't find a single case, going back to the 1980s. But every year from the 1980s on, I could find cases of absentee ballot fraud. Those are caught. So why would it be that these people who would commit this impersonation fraud are so brilliant that they've been able to commit the perfect crime for decades? It just -- it makes no sense.

  • 10:55:55

    REHMCaleb?

  • 10:55:57

    BURNSWell, it's interesting that Rick mentions the absentee ballot fraud because that's also been a battleground for a number of these cases, including in North Carolina. You know, I'm going to defer to Rick and Spencer, who have done far more thinking in terms of how we fix this problem, but it does -- it does sort of fold back into my initial point, which was that in the North Carolina case, the judge in the Fourth Circuit noted that African-American voters voted 15 percent more of the time than non-African-American voters on an absentee or, I should say, early ballot basis.

  • 10:56:42

    BURNSBut again, the judge looked to data from '08 and 2012. Is that significant? Are we drawing the wrong political conclusions? I don't know, and that's why I think this is so difficult.

  • 10:56:52

    REHMAll right, quick question. Do you believe all this is going to go back to the Supreme Court after the election with perhaps a reinstatement of the rules that existed previously, Spencer?

  • 10:57:11

    OVERTONI think the court is split right now, and it really determines on the composition of the court.

  • 10:57:17

    REHMAnd we won't know that until after November. Thank you all so much. Spencer Overton, Ron Elving, Caleb Burns, Richard Hasen and, earlier, Jay DeLancy. And thanks, all, for listening. I'm Diane Rehm.

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