It seems obvious that you need disenfranchised voters to challenge a voter-ID law. But it somehow wasn't in 2008, when the suit to block Indiana's law offered up no witnesses who said they would find it hard to vote because of the new requirements.
Crawford v. Marion County Election Board was actually a farce on both sides: Indiana couldn't present any evidence of the voter fraud the law was supposed to prevent. But Indiana's law wasn't as onerous as the new wave of voter-ID laws, and in a decision by Justice John Paul Stevens, six Supreme Court justices ruled that it could stand. That's why Applewhite and Lee have starring roles this time around.
The precedent set by Crawford remains a stumbling block for the Pennsylvania plaintiffs, but not a huge one. That's because they are relying on the state constitution, which explicitly protects the right to vote — a guarantee missing from our dear national founding document. Relying similarly on state constitutions, judges in Wisconsin and Missouri have struck down voter-ID laws.
Pennsylvania's defense of its law is especially weak. The state has already admitted that there have been no investigations or findings of in-person voter fraud, the crime the law is designed to stop, in Pennsylvania. In a country with too little voter participation and too much apathy, it is unconscionable that we would put people through the bureaucratic wringer to vote with absolutely no evidence of the harm it's supposed to stop.
What if it turns out, however, that the state's ruling Republicans haven't dealt the partisan blow they think they have? The state made headlines by announcing that as many as 759,000 Pennsylvania voters may not have the proper ID to vote because they don't have a current driver's license. And about 185,000 of those people live in Philadelphia, a Democratic stronghold with a plurality of black voters. Obama won Pennsylvania by 600,000 votes, and John Kerry by only 144,000, so hundreds of thousands of disenfranchised people, many in Philadelphia, would be big.
But there is evidence that the numbers may be significantly inflated. I got access to it only by promising not to say where it comes from, but it contradicts the well-known figures on ineligible voters.
The data reportedly show that 60 to 65 percent of eligible voters, and a similar share of people who actually voted in 2008, don't have the right ID because their driver's licenses have expired. This expired-license group skews elderly and does not skew African American. That suggests it may not be largely Democratic, since older voters are more likely to be Republican. Also noteworthy: While many of the voters without valid licenses live in Philadelphia and Pittsburgh, plenty also live in the suburbs, where the GOP is strong.
It's possible, then, that if Pennsylvania's voter-ID law goes into effect, there will be a lot of angry, white, Republican, suburban voters turned away in November, along with black Democrats like Viviette Applewhite.
None of this makes voter-ID laws one whit better. As drafted, with maximum hassle and zero proof that they're preventing real fraud, they're a scourge on our democracy, which is battered enough already.
But if it turns out that voter-ID laws don't overwhelmingly favor the Republicans who support them — well, that would be at least a teeny bit satisfying. To the extent the party takes a political hit for disenfranchising people, it would be doing so for nothing. And then maybe we would get rid of these bad laws once and for all.
Emily Bazelon is a senior editor at Slate.
Chat with Donald L. Barlett and James B. Steele about their new book, "The Betrayal of the American Dream," at 3 p.m. today at www.philly.com.