Legal Commentary

The Carter-Baker Commission on Voter I.D.: Bauer and Gerken Respond

By Jack M. Balkin

On Thursday Bob Pastor offered a measured defense of the Carter-Baker Commission's recommendation on voter identification against criticisms that we (along with Brad Smith) levied in the wake of the Supreme Court's Crawford decision. One of us agrees with a good deal of what Pastor says about the merits of shadow institutions like the Carter-Baker Commission and the useful purpose the Commission served in Crawford (see here); the other is more skeptical (see here). But there are a few issues where we both part company with Pastor.

We remain convinced that the public deserved something better than what the Carter-Baker Commission produced on the photo i.d. question. The main source of disagreement between us and Pastor turns on the difference between a bipartisan compromise and a nonpartisan decision. There are many issues for which a bipartisan compromise will be a satisfactory, even superior alternative. This is not one of them.

We see no reason to quibble with Pastor?s claim that Carter and Baker "both consciously tried to transcend [partisanship] in the deliberations of the Commission, most of the time." Neither of us was there for the deliberations. Nonetheless, regardless of the motives of the participants or the quality of the deliberations, the result was -- as one of us has already pointed out -- exactly the type of compromise one would expect if a prominent Democrat and prominent Republican sat down at the table and worked out an agreement. The Carter-Baker Commission blessed the i.d. requirement (something Republicans usually want) while demanding that the state take affirmative steps to distribute i.d. (something most Democrats would want if forced to accept an i.d. requirement in the first place).

The reason for our unhappiness with this portion of the report is simple: the absence of data and, in its place, reliance on assertions about what public "confidence" requires. While we are appreciative of the important role that the Commission played in compiling evidence for its report, this was not an area where it managed to find much. As the Carter-Baker Report acknowledges, there is "no extensive evidence of fraud in the United States." Indeed, to the extent that there is any evidence of fraud, it is due almost entirely to absentee voting scams or ballot-box stuffing, not to conspiracies to persuade large numbers of individuals to show up at the polls at the risk of criminal sanctions. There is precious little evidence, then, that the kind of fraud photo i.d. is meant to deter actually exists.

On the other side of the ledger, there is limited data suggesting that many people don't currently possess the requisite identification. These data standing alone cannot establish that an i.d. requirement would deter voters, but at the very least they suggest further inquiry is necessary. That is, in fact, exactly what Spencer Overton has argued. Our claim is not, as Pastor seems to think, that the Commission tried to suppress Spencer Overton's evidence -- again, we weren't there for the deliberations. We are chiding the Commission for not paying enough attention to it.

However much data the Carter-Baker Commission gathered, it's hard to see how the evidence it had led to the conclusions it reached. This is where our assumption of political bargaining takes root. It is buttressed by the Preface to the Report, penned by Bob Pastor, which opened by noting the sharp differences between the two political parties and the need, in bridging them, for "a strong bipartisan voice." Bipartisanship requires, at its core, political compromise. Nonpartisanship disregards partisan pressures; its goal is not to bring the parties together.

The Carter-Baker Commission did offer one other justification for an i.d. requirement -- the claim that such a requirement would enhance public trust in the system. That claim, too, is unsupported by empirical evidence (and may actually be misplaced, according to a recent study by Nate Persily and Steve Ansolabehere in the Harvard Law Review).

Of all the bits of "data" that could be offered in favor of an i.d. requirement, voter perception is the one that least stands on its own -- except, that is, where it is needed to fill in large gaps that should have been filled with hard data regarding the prevalence of fraud or the effect of measures to prevent it. As Ansolabehere and Persily observe, "casual assertions about popular beliefs should not substitute for the difficult balancing of the constitutional risks and probabilities of vote fraud and vote denial." This is not to say that public confidence is unimportant. All on its own, however, it is another way of saying that voter i.d. is just something voters really want, reinforcing the impression of a Commission anxious to settle the politics as much -- if not more than -- the merits of the voter i.d. issue.

In the end, the problem all this engenders becomes clear. The Supreme Court didn't have much to cite for its views that fraud is a problem. So it cited the Carter-Baker Commission, which in turn didn't have much to cite. The Supreme Court had no evidence to cite for its intuition that people won't trust a system that lacks an i.d. requirement. So it cited the Carter-Baker Commission, which in turn had no evidence to cite for its claim. It's turtles all the way down.

Shadow commissions like Carter-Baker could -- and in this instance did -- play a constructive role in the debate over electoral reform. But as one of us has discussed in detail, the design of such an institution poses challenges, one of which is to manage the politics without being overwhelmed by them. Despite its many accomplishments in other areas, we do not believe that Carter-Baker met that test on the voter i.d. issue. And given that this is the area where its influence has been greatest, that is quite unfortunate.

-Heather Gerken and Bob Bauer

Full post as published by Balkinization on May 31, 2008 (boomark / email).