Legal scholarship constantly erects new specialties and sub-specialties. Physicists discover ever tinier sub-atomic particles and they tend to come paired with anti-particles. Law’s concern with particulars opens opportunities for anti-rules, loopholes, and safe avenues for subverting the norms implemented imperfectly by legislation.
Thus, we see eminent scholars in the field of Election Law– Richard Hasen, Heather Gerkin, Nate Persily, et al, training experts in what can only be described as Disenfranchisement Law. An outstanding contributor to his chosen field is the Kansan, K__ch. He has developed a model for selective exclusion of riff-raff from the body politic that commands insider admiration for its success in confusing the public and the press.
The K__h Plan begins with the raw material of public opinion. It is ridiculously easy to gather public support for laws requiring every voter to present a valid ID at the polling place on election day. Quibbles about the bother are refuted by offering a free state-approved ID card to non-drivers. Nearly everyone who is polled on the merits of Voter ID shrugs. The casual citizen assumes all voters carry a Driver’s License or some other readily available photo ID that can be used to satisfy an ID requirement.
Once enacted, voter ID laws provide powerful leverage for the K__ch Police to inflate the Hassle Price (HP) paid by the poor, the convicted, and the itinerant. On slow news days, the press runs stories of decorated veterans, faithful grannies, and other sympathetic victims of the red-tape hurdles that must be cleared to satisfy registrars that the person standing before them is qualified to receive an ID in order to vote. The lines, hours, and venues for getting one’s papers in order amount to a pre-franchise franchise that is easily manipulated to raise the HP for voting to a level well above the expense of a poll tax. Supporters of Voter ID are so confident of the validity of their measures that many of them openly admit that Voter ID’s ostensible rationale– prevention of impersonation fraud, and reinforcement of the sanctity of the ballot– is pretextual. These Republican laws are passed to impose high HP barriers around identifiable populations who vote Democratic.
The Democrats, the Press and some of the Judiciary think that they win when they demonstrate bad faith and self-dealing by legislatures who pass Voter ID laws. Prove that the law is based on a pretext, that it solves a “problem” that doesn’t exist, and that it violates bedrock constitutional principles, and you have gained the day! Ko__ch however has a more cunning purpose in his campaign for Voter ID. The beauty of the ID labyrinth is that it generates a cycle of non-compliance and escalating stringency. Misunderstandings of obscure and badly phrased regulations, under-staffing and under-funding of the electoral process, and all the other arts of bureaucratic sabotage provide a rich payoff in opportunities for undetected Selective Enforcement, from the get-go. Together, the elements of HP + SE guarantee low political participation by the poor and minorities. But wait! – there’s more! Voter ID has the bonus value of supplying actual instances of Voting “fraud”, at no extra cost. Thus, the fragile foundation of the scheme is overcome by its self-reinforcing feature.
Officials who supervise elections, (call them the K__chs) can use post-election idle time to discover and publicize cases of “fraud” which they can use to “prove” a case for further “safeguards” of the “integrity” of the holy ritual of voting. The higher the HP, the easier it becomes to defend Voter ID barriers against claims of constitutional misfeasance and partisan bad faith.
Exam question: A resident of KS registers to vote. On election day, she discovers she has mislaid her purse with all her ID cards inside. Remembering her “nostalgia file” from student days, she retrieves forged ID cards bearing her true name and address, but a false Date of Birth. She is not questioned when she presents her credentials at the polls, and her ballot is duly cast. Months later, she confides her adventure to a friend, who gossips about it to an aspiring young lawyer in the K__ch office.
May K__ch, should K__ch, must K__ch initiate criminal proceedings for election fraud? May he count this as an(other) instance in support of sterner criminal measures? How should the jury be instructed? If you were a juror, could you in good conscience nullify the Voter ID law?