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Voter ID Law Commentary- A Critical Analysis Exercise

A commentary printed in the Toledo Blade on Friday September 28, 2007 titled “Voter ID laws are solution to a problem that doesn’t exist” is an interesting exercise in critical analysis. The author, Marilou Johanek, employs a veritable cornucopia of logical fallacies to make her point that is obvious from the article’s title.

The subject of the article is, of course, arguable but the arguments provided in it are not convincing in the least. The opening argument is a good example-

For years, decades, generations even, we operated just fine without voter ID laws and without rampant voting fraud. But after the shameful outcome of the 2000 presidential campaign, politicians, primarily Republican in nature, embarked on a crusade to ostensibly clean up crooked elections.

Ms. Johanek, gives the impression that before the year 2000 the country was a virtual electoral paradise and no voter fraud that would warrant asking voters to prove who they were before being permitted to practice what is probably the greatest responsibility a citizen can perform. Apparently she is not familiar with such vote theft hall-of-famers as “Landslide Lyndon” Johnson, whose Senate career was made with a stuffed ballot box from Alice TX in 1948, or Mayor Richard J. Daley whose Chicago political machine made the phrase “vote early, vote often” a not so funny national joke. Many researchers believe that Richard Daley delivered enough stolen votes (many of them long dead) in the 1960 election to give John F. Kennedy the Illinois electoral college votes and the election. Perhaps Ms. Johanek is unfamiliar with the Pendergast machine which got Harry Truman elected first to a judgeship and then to the Senate. Perhaps she doesn’t recall from American History the antics of New York’s infamous Tammany Hall machine. Or the electoral shenanigans in New York that probably re-elected Abraham Lincoln (though this one is more obscure) where Republicans and Democrats had to vote with different colored ballots and Democrats, easily identified because of their ballot color, were prohibited from casting their ballots by federal troops. The list goes on and on and almost as many ways of stealing elections have been tried as there are election thieves. Most of them include voters who vote multiple times under multiple identities.

That being said Ms. Johanek then engages in the repetition fallacy by vaguely insinuating that the 2000 presidential election outcome was fraudulent, calling the outcome “shameful.” Why is this repetition fallacy? The case that the 2000 presidential election was stolen was put to rest some time ago. Even New York Times reporters packed up and went home when it became obvious after numerous recounts, official and unofficial, that Albert Gore lost the 2000 election by losing the Florida vote. No matter what you think of George W. Bush as president, this is an undeniable fact. Yet tendentious journalists repeatedly imply or declare that the election was stolen from Gore. As Dr. Goebbels said- a lie told long and loud enough, squelching all opposition, eventually becomes the truth. A shining example of the repetition fallacy

So why the veiled accusation and what exactly does the term “Republican in nature” mean? It is an attempt to impugn the reputation of Republicans and “their ilk” (whatever that may entail) by linking them to election theft and create an us vs. them mentality about the issue at hand (a declaration of the superiority of her own position and those who agree- the snob appeal fallacy). The argument is also an ad hominem attack and a red herring argument, not to mention an appeal to fear.

Having drawn undiscerning readers and those who already share her flawed electoral presuppositions into her home arena, Ms. Johanek feels free to play fast and loose with with the facts regarding voter ID laws. She implies that these laws are a Republican conspiracy to “… affect election-day turnout by folks who notably skew Democratic…” For proof, the author tells us that “…many of the states now requiring voter identification at the polls went Republican red the last presidential election…” Ok, if true and there’s no attempt at verification in the article, so what? We are told that “In many cases, GOP-controlled legislatures passed laws signed by Republican governors stipulating the paperwork voters would need to produce in the future before they could vote.” How many of the 28 states who passed voter ID laws were red states and how many blue? We have no clue from the article. We only know that “many” of them were passed by the Republican conspiracy to rob Democrats of votes. But wouldn’t even a single Democratically controlled state passing a voter ID law negate this theory? After all, why would Democratic legislatures and governors sabotage their own parties’ efforts, disenfranchise their constituents and rob themselves of votes? In fact, doesn’t this blow holes in the theory posited in the argument that “…forcing registered voters to submit documents before voting may intimidate some citizens…?” Are we to believe then that Republican-controlled states passed voter ID laws to steal elections but Democrat-controlled states passed them out of principle? In the light of these questions the case for a conspiracy, specifically a Republican conspiracy, to disenfranchise begins to look like the haphazardly constructed house of cards that it is.

There are some truly absurd arguments planted throughout this article. For instance we are told that “Even though Indiana has never prosecuted anyone for voter fraud, it enacted one of the toughest precautions against voter fraud in the country.” This is yet another unreferenced assertion in an article filled with them. Indiana has never prosecuted a voter fraud case? In many states, Ohio included, county prosecutors bring fraud cases filed by local election boards. So has anyone been prosecuted for the type of voter fraud at which the law is aimed? A quote from the recent 7th Federal circuit Court of Appeals decision tells the tale. The actual decision says “…as far as anyone knows, no one in Indiana, and not many people elsewhere, are known to have been prosecuted for impersonating a registered voter…(emphasis added)” Not quite as concrete as we were lead to believe by Ms. Johanek. Apparently, no one has done an exhaustive search of the prosecutorial records to verify this question. Reporting this as an absolute proven fact is disingenuous and an example of the equivocation fallacy. That fact is bolstered by another quote from the decision.

The plaintiffs argue that while vote fraud by impersonation may be a problem in other states, it is not in Indiana, because there are no reports of such fraud in that state. But that lacuna may reflect nothing more than the vagaries of journalists’ and other investigators’ choice of scandals to investigate. Some voter impersonation has been found (though not much, for remember that it is difficult to detect) in the states that have been studied, and those states do not appear to be on average more “dishonest” than Indiana; for besides the notorious examples of Florida and Illinois, they include Michigan, Missouri, and Washington (state).


Furthermore, the low number of prosecutions is explained in the next paragraph of the decision and the explanation is a powerful argument for the need for voter ID.

But the absence of prosecutions is explained by the endemic underenforcement of minor criminal laws (minor as they appear to the public and prosecutors, at all events) and by the extreme difficulty of apprehending a voter impersonator. He enters the polling place, gives a name that is not his own, votes, and leaves. If later it is discovered that the name he gave is that of a dead person, no one at the polling place will remember the face of the person who gave that name, and if someone did remember it, what would he do with the information?


We disagree with the majority decision that this is a “minor criminal law.” Ms. Johanek needs refute this rather understated but important argument in favor of voter ID requirements for her arguments to hold water.

Another glaring example is an explanation of what Johanek thinks plaintiffs in the suit need to prove-“Their only hope lies in the high court asking Indiana for evidence that not only is voter fraud a legitimate reason for the voter ID law but that impersonating a registered voter in the state is so serious a problem that it demands a remedy.” Honestly, it is doubtful (but considering the current state of the court, not impossible) that the justices would ask Indiana if they really thought voter fraud was a crime that needed to be deterred by threat of prosecution. Equally inane is the proposal that the justices ask questions about whether voting under a false name is really all that bad. Of course it’s that bad. It is ironic that people who fulminate with outrage at an election allegedly stolen by voting machine malfunctions (long since disproven) are so nonchalant about votes being stolen by crooks voting under false identities.

Johanek attempts to appeal to the readers sense of nostalgia to show that the ID requirement is overreaching.

When I first went to the polls as a registered 18-year-old voter, all I had to do was sign a poll book where a photocopy of my name was kept on file for comparison. For 30-some years, I’ve done the same thing, often before the same people at the same polling place.

She actually weakens her own argument in this case. Many of us have had the same experience of seeing the same poll workers year after year. Many of them are elderly and some of them clearly don’t have great eyesight anymore. Will it be easier for these folks to see a photo ID? Not necessarily, but it does reduce the odds of getting away with voting under a phony name. According to the majority opinion “Without requiring a photo ID, there is little if any chance of preventing this kind of fraud because busy poll workers are unlikely to scrutinize signatures carefully and argue with people who deny having forged someone else’s signature…” Anyone who has voted in a “big” election knows the truth of this statement.

Ms. Johanek dutifully repeats the Democratic talking points about Democratic voters being the primary victims of the law. She even quotes from the 7th Circuit majority opinion that stipulates to that. Of course, she fails to mention that the reason that this is stipulated to is to provide standing to the Democratic party, which allows them to continue the suit. Without standing the suit would have to be dismissed or, at least, the Democratic party dropped as a plaintiff. Wouldn’t you think that if there were some vast Republican conspiracy to rob the Democrats of votes through the judicial process the justices would simply dismiss the suit on the basis that the claim that the voters who would be deterred from voting by the law would be mostly Democratic is bogus?

Instead, the justices chose to acknowledge the truth of the claim and weigh that fact against other factors which affect how voter behave. They chose to look at whether or not the potential for stolen votes outweighed discouraging the unknown but presumably tiny number of voters who will allow themselves to be deterred. It is interesting to note, according to the decision, that not one of the plaintiffs in the case was someone who would be deterred from voting by the photo ID requirement. In fact no one knows how many would actually be deterred by the requirement and no reliable testimony to the number was offered. One of the most important factors in the majority opinion upholding the law was a lack of a single plaintiff who would be deterred from voting (though the justices stipulated that it would happen) and a lack of any concrete evidence that it would be more than an exceedingly small number of voters.

One of the most interesting quotes from the majority opinion regards the motivation of the Democratic Party in this particular suit.

No doubt there are at least a few such people in Indiana, but the inability of the sponsors of this litigation to find any such person to join as a plaintiff suggests that the motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls. (emphasis added)

To look at this point another way, are the Democrats not now being hoist by their own petard? Since the 2000 elections, the Democratic talking points have included stolen elections, fraud and vote theft by Republican election officials using fraudulent and faulty voting equipment, etc. Is it any wonder that having spent nearly 7 years creating paranoia within the voting ranks with apocryphal tales about stolen elections, like the article being analyzed, for instance, some potential voters have become discouraged from voting? Why bother voting when those evil Republicans are just going to steal my vote anyway? Now, having been presented with a law designed to reduce fraud, these same paranoid voters only see these measures as further evidence of election theft, further enhanced by this kind of lawsuit, and stay away from the polls, forcing Democrats to work harder to get voters out to vote.

Conclusion

Starting an article with a false scenario and using that scenario to justify the the liberal (pun intended) use of ad hominem arguments designed to bring the choir being preached at to a resounding crescendo of emotional response is not the way to convince the non-converted to the justice of “the cause.” Are there legitimate questions around the voter ID issue? Yes, lots of them. Some of them involve whether or not we live in a democracy with universal suffrage or a republic with more restrictive legally defined voting requirements. Some of them involve the Constitution and how far the federal government can go in restricting state voting regulations. The 15th amendment outlaws racial discrimination and Article I § 4 allows Congress to set the time, place and manner of how the election for its own body can be conducted by law but does not allow it to dictate who may or may not be an elector and how that elector’s qualifications can be determined. That responsibility is left to the states. Some of them involve who should and who should not be permitted to vote and whether that those who would be deterred from voting by the simple presentation of a state issued photo ID card are competent to vote.

Like a building built on a poor foundation, an argument based on a false premise must eventually collapse. And collapse this argument does, in a spectacular fashion. Had this question been approached in a less tendentious and more logical fashion, the arguments presented from that approach may have carried more weight. Unfortunately, the author chose a blatant emotional appeal over a reasoned argument and so has surrendered the opportunity to seriously impact the debate.

Posted in Commentary, Crime and Punishment, Public Policy Radar.


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Continuing the Discussion

  1. Camp American - Where God’s Truth And Patriotism Go Hand-In-Hand » New Critical Analysis For Baloney Detectors linked to this post on October 14, 2007

    […] out my critique here and let me know what you think by either leaving a comment here or going over to the Camp Post […]