Sunday, January 6, 2008

On Jan. 9 — less than 10 months before Election Day 2008 — the Supreme Court will hear arguments in Crawford v. Marion County Election Board, a closely watched test of the constitutionality of an Indiana law requiring photo identification for voting.

The issue in Crawford is important: whether Indiana’s photo ID law violates the constitutional rights of voters lacking such IDs. The issue has national significance because Indiana’s law — along with a nearly identical one in Georgia — has sparked debates in other states about photo ID at the polls. The size of the docket matches the importance of the case. No fewer than 40 briefs have been filed in the case by a veritable Who’s Who of the field.

The underlying issue is straightforward. ID supporters cite the risk of voter fraud and claim that photo ID protects the integrity of the vote. Opponents argue that photo ID requirements disenfranchise voters who lack such IDs.

The briefs to the court in Crawford are full of elegant legal arguments and impassioned rhetoric about how, if at all, photo ID protects — or burdens — the right to vote. Unfortunately, something important is missing from the Crawford conversation — facts. Crawford is not merely a legal argument, it is also a factual dispute — and that dispute has so far largely been absent.

Claims of voter fraud by the Indiana law’s defenders are generally anecdotal, and ID opponents devote considerable time and attention to debunking such claims. Yet the counter-claims that photo ID disenfranchises voters rely on relatively narrow and disputed statistical evidence, and supporters of the Indiana law focus on the inability of ID opponents to identify a single voter who would be disenfranchised by photo ID.

Crawford’s factual vacuum has two key consequences for the photo ID debate.

(1) Neither side can conclusively prove it is right. The absence of facts makes it easy to prove the other side is wrong, however — and thus the debate to date has mostly featured each side debunking the other’s claims while doing little to substantiate its own.

(2) The scarcity of facts means both sides in Crawford — indeed, in the photo ID debate generally — must ramp up the volume to be heard over their opponents. The resulting rhetoric — ID proponents making claims of widespread, un-checked voter fraud and opponents fiercely insisting that voter disenfranchisement is being overlooked — merely reinforces the deep mutual hostility and obscures the search for facts.

In its consideration of the Crawford case, the Supreme Court should take this meager factual record into account. A decision of this magnitude on the basis of the current record would discourage the search for the facts about photo ID before it has begun in earnest and essentially relieve the winning party of having to prove its case.

And any final determination now, on the eve of the 2008 election cycle and on this slim factual record, could fuel criticism by those who say politics motivate the court’s treatment of election law cases.

Fortunately, the key facts that would illuminate the entire photo ID issue are obtainable. Even better, the effort to get the facts — both for photo ID as well as for other areas in the field of elections — is showing promising signs of life.

Our colleagues at The Pew Charitable Trusts’ Make Voting Work Initiative, in conjunction with the JEHT Foundation, are about to release more than $3 million for research in the field of elections. Pew has also worked with Congress to include $10 million in the latest appropriations bill for states to improve their election data reporting. Evidence-based policymaking works in other fields, and should be allowed to do so in elections as well.

The Crawford case strikes at a fundamental political divide in this country about the proper balance between the need to ensure voter access and the desire to prevent voter fraud. Consequently, it is not surprising that the case generates strong feelings about the desirability and constitutionality of photo ID requirements for voting.

Strong feelings are not enough, however. The Supreme Court should demand more — specifically, more facts — before ruling on such an important and far-reaching case.

Doug Chapin is project director of the Pew Charitable Trusts’ Ray Martinez, is former vice chairman of the U.S. Election Assistance Commission.

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