Did Restrictive Voter ID Laws and Other Voting Laws Matter to the Election Outcome? | Election Law Blog
by Professror Rick Hasen (UCLA School of Law)
I am getting this question a lot this morning.
Let me begin by saying it is the wrong question to ask (for reasons I explain below).
But here’s what we know if we were trying to answer this question:
If restrictive voter id or other laws were enough to affect the presidential outcome, they would have had to have an effect on the electoral college outcome in a state that passed these laws. As of Wednesday morning, the only candidate I see in this category potentially is Wisconsin, where Donald Trump has a 27,000 vote lead. Were there more than 27,000 people (or whatever the margin will be after provisionals/absentees processed) who would have voted for Clinton but for the restrictive voter id law (with its minor softening through court-ordered DMV-produced temporary ids)? What about other laws that the Wisconsin legislature passed, such as on the treatment of absentee ballots? We will have to let the political scientists sort this out. I don’t think anyone can eyeball this to know.
Now, on why this is the wrong question: Of course pundits and partisans care about election outcomes, but when it comes to laws making it harder to register and vote, the right question focuses on the dignity of voters. Why should the state be able to make registration and voting harder without good reason? If you look at it this way, the turnout question is secondary and less important. Had Clinton won, there was a chance the Court could have read the Equal Protection Clause to give this fundamental protection to voters. Now I believe there is no chance. Don’t look to Congress or the Supreme Court to be protectors of voting rights. This will be fought state by state, and in red states voting might well become a lot harder.