An Insect Repellent for Voter Suppression
Posted on April 14, 2017
Good old Kansan Kris Kobach finally managed to convict an immigrant of an actual misdemeanor voter fraud. The said convict was actually a legal American citizen, but he voted before he had obtained official citizenship–a serious threat to our democracy, indeed.
With glacial slowness the courts are coming to decide that the claim of massive voter fraud is itself a fraud. They need some sharpened analytic tools to hasten the decision process. Here is my proposed legal bright line:
I. Voter limitations are Constitutionally valid only if the number of fraudulent or wrongful votes likely to be prevented exceeds the number of legitimate votes likely to be discouraged.
II. Since a constitutional right is at stake, the burden of proof as to passing this test rests on the state, not on the potential voter.
That would pretty much blow all voter suppression efforts out of the water. Granted it would take some empirical evidence and expert testimony in each case (at least at first), but the research on this question is so utterly lopsided and unambiguous that only a shamelessly ideological radical right judge could ever find for the state.
And here is my argument, starting from first principles.
1. The only legitimate purpose of voter fraud legislation is to protect the integrity and legitimacy of elections.
2. Because an election is always a somewhat messy and bureaucratized process, perfect integrity is not possible. The goal needs to be minimizing the difference between actual and ideal elections.
3. Therefore voter limitation laws are justified if and only if they move actual elections closer to ideal elections.
4. Critical assumption: closeness to the ideal is defined in general as the likelihood that the actual election will reach the same outcome as the ideal election.
5. Consequently, distance of an actual from an ideal election should be measured by the total number in the actual election of votes cast wrongly plus legitimate votes not cast, as compared with the ideal.
6. Therefore the effect of a voter limitation on distance is equal to the number of number of legitimate votes suppressed, less the number of fraudulent or wrongful votes prevented.
Note that step 5 is the critical jump in reasoning. It can be justified if, on average over time, an individual vote cast wrongly is equally as likely to shift the outcome of an election, as is an individual legitimate vote not cast.
This is the logical assumption one would make if one had zero information about future elections.