Law professor Michael Gilbert published an essay in the Columbia Law Review making one of the most counter-intuitive claims about voter ID laws possible -- that it actually makes voter fraud worse.
The debate over voter ID laws is one that is characterized by extreme partisanship. On the conservative side, the argument is that it is imperative to keep the ballot box sacrosanct; while on the liberal side, the argument is that it is merely another voter suppression law, under the guise of protecting the system.
One set of researchers showed that in elections without voter ID laws, Democrats were confident in the fairness of the election while Republicans were not--and vice versa.
But research has also shown that the problem is often overstated, usually as a political tool.
Voter fraud (not voter registration fraud) is almost nonexistent, with every state attempting to 'root out' fraud only finding a small handful of cases at the expense of millions of dollars of tax money.
But Gilbert's claim is interesting, and one that neither side really considers. We think of a false dichotomy when we only think of elections as being fraudulent or non-fraudulent, or accurate (as in every ballot counted or every voter allowed to vote) or inaccurate.
Using these false dichotomies, supporters of voter ID laws would contend that it makes fraudulent elections non-fraudulent. Critics contend that it makes accurate elections inaccurate.
Instead, we should be viewing elections on the basis of accuracy as well as the possibility of fraud. This creates four interesting results:
- We can have accurate, non-fraudulent elections (where we'd hope to be in all elections);
- We can have accurate, fraudulent elections (all the votes counted properly, though fraudulent ballots included);
- We can have inaccurate, non-fraudulent elections (no fraud, but the votes are not counted properly); or
- We can have inaccurate, fraudulent elections.
While proponents and critics argue along the either/or of fraud or accuracy, using Gilbert's model there are four more possibilities where voter ID laws could make the problem worse:
- Voter ID makes accurate, non-fraudulent elections inaccurate and fraudulent;
- Voter ID makes accurate, non-fraudulent elections accurate but fraudulent;
- Voter ID makes inaccurate, fraudulent elections inaccurate but non-fraudulent; or
- Voter ID makes inaccurate, fraudulent elections accurate but fraudulent.
Putting complicated math and graphs into words is not always easy, but the overall gist of Gilbert's argument is that it's not so simple, and there is much more room for inherent systemic fraud than proponents would like to believe.
Are the chances higher for fraud under voter ID laws than without?
In Kansas, Secretary of State Kris Kobach convinced the legislature to give him prosecutorial powers in voter fraud cases, in addition to the new voter ID laws, claiming to have 200 cases 'ready to prosecute' during the legislative debates. Ten months into this new-found power, six cases have been prosecuted.
Only six.
A simple search of relevant news stories can find at least six people who were wrongfully purged from the voting lists under the new voter ID law.
The reality is that this is a big problem, not just some academic discussion; the possibilities for fraud increasing under voter ID laws is not only plausible, but likely.
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