an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Some really close readers of Balkinization may have noticed the lack of blog posts from me for a few months, which is for a happy reason (my daughter was born). It’ll be a little while before I return to regular blogging. But with the election looming Tuesday, I wanted to put up a brief post.
I have already voted in this election—early, and conveniently, using my driver’s license as my ID. For me, the burden of showing this license in order to vote was literally zero. Like most Texans, I drive a car and I drove to my polling place—at which point, obviously, I had my license with me. Being asked to produce it was no more burdensome than being asked to produce my left hand.
My fellow citizen and Austin resident Eric Kennie will not vote in this election, for the first time in his adult life, for reasons described in careful detail in this article in a British newspaper, the Guardian, by journalist Ed Pilkington. In brief, Kennie does not have a way, short of hiring a lawyer, to obtain the documents he would need to obtain the ID card Texas now requires. A very poor man who by his own account has never left the boundaries of the city of Austin where he was born, Kennie lives on the $15-20 a day he makes by collecting recyclables. Yet he spent several days on multiple buses and quite a bit of his very limited funds attempting, ultimately without success, to obtain the necessary documents. Short of some sort of dramatic pro bono legal intervention, Kennie will not be able to vote at all this year or any time in the future until SB14 is enjoined or repealed (or he becomes eligible to vote an absentee ballot, which would require waiting until he turns 65, becoming disabled, leaving Austin for the entire early voting period, or going to jail for a misdemeanor). If SB14 is enjoined, Kennie will go back to voting using one of the forms of ID that were allowable under prior Texas law, which include the voter registration card the state mails to his home address. I won’t recount his situation in detail. I recommend reading the article, which is excellent.
Eric Kennie’s situation is just the sort of fact pattern one might expect plaintiffs challenging voter ID laws in court to highlight. Such fact patterns, or stories, come in many varieties. Some voters are stuck voting absentee instead of in person as a result of laws like SB14; others face burdens of varying magnitude that prevent them from voting at all, with Eric Kennie’s situation sitting at what must be close to the most burdensome end of the spectrum.
Yet, actual litigation about voter ID laws is often puzzlingly unmoored from these individual stories. The first challenge to a photo ID law to reach the Supreme Court—Crawford v. Marion County (2008)—was a disaster for voter ID opponents in part because they had no individual plaintiffs in the suit at all who could show that the law would disenfranchise them personally. Since then, plaintiffs have done a better job, in some cases a much better job; the current litigation in Texas involves a number of plaintiffs’ specific stories, although none of them is quite as stark as Kennie’s. But even now, five years after Crawford, most of the factual development in voter ID litigation still tends to take place in the airless realm of expert testimony about statistics and database matching. The focus is on counting large numbers of people: how many Texans are already registered to vote, yet lack ID that complies with SB14, that sort of thing.
In part this is a problem rooted in the identity of the litigants, as I’ve suggested elsewhere. For political parties, and in many cases even for civil rights organizations, voting is about aggregate numbers. What matters is how laws like SB14 will shape the electorate and shift the outcomes of elections. There is plenty of evidence that this is why Republican legislators support voter ID laws and why Democratic legislators oppose them. From this perspective, it doesn’t actually matter precisely how difficult (or impossible) the state of Texas has made it for Eric Kennie to vote. What matters is the aggregate numbers. And judges often seem to agree.
But in part this is a different kind of problem entirely: Voter ID opponents just seem to have a hard time locating people like Eric Kennie. State defendants commonly argue, sometimes successfully, that this is because such people do not actually exist. Kennie, anyway, does exist. But he seems to be difficult for lawyers, advocates, scholars, journalists, and other middle-class people to find. Why? That is what brings me to the title of this post.
I reached out to Ed Pilkington, the author of the Guardian story, and asked him how he found the person he profiled. He replied:
yes it was difficult. it's like looking for a vacuum, as by definition most of the people who fall into the TX voter-ID trap are the people who are normally invisible - the poor, unemployed, unengaged, often those who might not vote anyway so any impediment in the way of them getting to the polls could put them off
i found Eric the way i normally find individuals to illustrate stories i do - just pushing out a lot of requests to as many groups as i can think of involved in voter registration, and then asking those groups to pass me on to others on the ground, until eventually i hit on somebody. there was no secret to it, just a lot of shoe leather
Lawyers, judges, and even journalists tend to have trouble finding people like Eric Kennie—the people who are the most completely disenfranchised by a law like SB14—precisely because such people are, in many areas of life, completely disenfranchised. If they had the kind of economic and social wherewithal to make their voices heard in political or legal spheres—if they knew lawyers or journalists or legislators or people who knew such people—then they most likely would also have the kind of economic and social wherewithal to obtain the documents SB14 demands. Their very lack of money, lack of a car, lack of knowledge of how the system works, and lack of options also tend to make them invisible to the more elite actors who, in distant courtrooms and legislative hearing rooms and newsrooms, fight out the disputes that affect whether they can vote. From the point of view of those more elite actors, looking for Eric Kennie is indeed, as Pilkington puts it, like looking for a vacuum. It like an anti-social-networking puzzle in our networked age: please find me the people who are the most distant from, the least connected to, me or anyone I know.
Most of the people who will not be voting this Tuesday as a result of SB14, who would have voted otherwise, tend to live lives on the other side of a gulf that frankly seems difficult for middle-class voters, legislators, lawyers, and judges even to see across. When Judge Richard Posner confronted the Indiana law in the Crawford case that went to the Supreme Court, he wrote, “it is exceedingly difficult to maneuver in today's America without a photo ID (try flying, or even entering a tall building such as the courthouse in which we sit, without one).” I suspect that this is part of the reason large majorities of voters, when polled, favor voter ID laws. On the side of the gulf where large majorities of us sit, with our drivers’ licenses in our pockets, such laws seem obviously non-burdensome, as they seemed to Richard Posner in 2007 (he now sees the issue somewhat differently). A person going around without a driver’s license might strike many voters as vaguely irresponsible or shady.
It is possible to see across the gulf. Federal district judge Nelva Gonzalez Ramos, sitting in Corpus Christi, ruled last month that SB14 violated the Constituion and the Voting Rights Act (in a ruling that was stayed by the Fifth Circuit on the grounds that enjoining the law would change the rules too close to Tuesday’s election). After discussing the stories of several of the plaintiffs before her in some detail, she then took what struck me as an unmistakable swipe at Judge Posner’s 2007 opinion:
The experiences of these Plaintiffs are not unusual. Other than for voting, many of the Plaintiffs in this case do not need a photo ID to navigate their lives. They do not drive (many do not own a car), they do not travel (much less by plane), they do not enter federal buildings, and checks they cash are cashed by businesspeople who know them in their communities. (p.81)
We’re not talking here about how the other half lives. We’re talking about how the other 4.5% lives. (I’m just using the number here that Judge Gonzalez Ramos found most credible in Texas; perhaps the real figure is higher or lower but that’s probably in the right ballpark.) If that figure is very roughly correct, it would mean that approximately 19 out of 20 of Texas voters already have the documentation they need to vote Tuesday. The remaining sliver of the state is proportionately quite small: one out of 20. Of course that’s still hundreds of thousands of people (it’s a big state). And yet for exactly the same reasons that these people lack the right kinds of ID, they are pretty invisible. When they don’t show up at the polls on Tuesday, few will notice.
And yet I always come back to this question in cases like this: What are voting rights for, anyway? If we wanted to protect the rights of the Democratic or Republican parties, then sure, it should be all about the numbers and the election results. Meanwhile if we want to police intentional racial discrimination—Judge Gonzalez Ramos found that SB14 was enacted in part for racially discriminatory reasons—then it’s all about how the legislature wanted to shape the overall electorate. But a voter like Eric Kennie has an independent claim—one that is surely strengthened by the fact that he’s someone that our society disenfranchises in many other areas of life besides voting. His claim is not about the numbers. It seems to me that the State of Texas owes him a pretty compelling reason for why it is so vitally important to prevent him from voting this Tuesday, rather than creating some less restrictive alternative method—some escape valve—by which he could exercise his right to vote, one of the few ways, in a deeply unequal society, that he can count as my equal.
Postscript: a sharp-eyed reader, Chuck Anderson, has pointed out to me that plaintiff-side lawyers did, in fact, successfully locate Eric Kennie before a journalist did. Kennie was the lead plaintiff among a group of intervenors in the earlier lawsuit about Texas' voter ID law (Texas v. Holder) -- see under "Kennie Intervenors" here. Posted
by Joseph Fishkin [link]