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Questioning Questions in the Law of Democracy: What the Debate over Voter ID Laws’ Effects Teaches about Asking the Right Questions

Zhang, Emily, Questioning Questions in the Law of Democracy: What the Debate over Voter ID Laws’ Effects Teaches about Asking the Right Questions (October 14, 2021). UCLA Law Review, 2022, Available at SSRN: – “Voter identification laws, laws that require voters to present identification when voting (“voter ID laws”), first launched the modern Voting Wars. After the Supreme Court blessed Indiana’s voter ID law in Crawford v. Marion County, voter ID laws proliferated across the country. Their prevalence belie their notoriety. They remain one of the most hotly contested election laws and are often referred to as a voter suppression law, if not the modern voter suppression law. While these laws first served as a rallying cry for the election law/law of democracy community, they have become a sore spot—even a pain point—for what is historically a collaborative and close community of social scientists, lawyers, and legal scholars. Many social scientists have come to conclude that voter ID laws have had negligible effects, if any, on voter turnout. That conclusion may seem surprising—even difficult to believe—given how many eligible voters lack IDs. And that surprising conclusion has raised uncomfortable questions about whether the progressive legal alarm over voter ID laws—including litigation challenging those laws—was warranted. By harmonizing the causal social science literature and descriptive evidence unearthed in the course of litigation, this Article is the first to offer an account of why empiricists have consistently failed to detect a turnout effect from voter ID laws. Upon investigation, what is surprising is not that a turnout effect has not been detected, but why an effect should have been expected in the first place. Evidence from litigation suggests that more than 99% of registered voters who habitually vote may have the requisite ID for voting, even though large numbers of eligible (but not registered) citizens lack IDs. It is therefore unsurprising that the best causal studies suggest that voter ID laws decreased turnout (i.e. voting conditional on registration) by no more than 2%. Those studies should not have expected any other result: existing causal studies sought to detect an effect that descriptive evidence did not support. Thus, the discord in the literature results not from the sidelining of important causal findings, but rather from the lack of interaction between the causal academic literature and litigation-derived descriptive evidence….Questioning questions also helps clarify doctrine. I consider how courts hearing challenges to voter ID laws have applied—and mis-applied—turnout evidence in conducting the burden inquiry in the Anderson/Burdick standard governing federal constitutional protections for the right to vote. Anderson/Burdick standard balances the burdens imposed by the challenged law on the right to vote against the state’s justification for the law. Causal evidence of turnout effects is a clearly efficient—but also radically incomplete—measure of burdens on the right to vote. Conceptual clarity of both what turnout estimates measure and what doctrine asks ensures not only that all relevant evidence is presented and considered in voting-rights cases, but also that the social science literature is better positioned to produce doctrinally responsive research.”

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