Identity vs. Eligibility: Most voter ID statutes are unconstitutional!

BLOUNT COUNTY, Tennessee (PNN) - October 9, 2012 - We as a society are far too accepting of showing our papers as proof of who we are. Didn’t we fight a war, started by a megalomaniac, over this sort of thing?

Most proposed or enacted voter ID statutes include a requirement to prove eligibility to vote by presenting proof of identity, and require that proof to be some kind of government issued ID. Such requirements are unconstitutional. Voters may constitutionally be asked to prove eligibility, but not identity. The two are not the same.

Eligibility can be proved without revealing identity. It is unconstitutional to deny a right or privilege for failure to present something one is not constitutionally required to possess, and there is no constitutional authority that requires anyone to even have a name.

Eligibility can be proved in various ways that do not disclose identity. The traditional way was for a notary or other official who knows the person to testify that he is eligible. His testimony, such as an affidavit, would be the proof. The individual’s identity would be disclosed to the notary, but need not be disclosed to anyone else.

Of course the witness has to be trustworthy, but that is no different from trusting the clerk who prepares and issues an ID card. Some go so far as to propose a national ID system.

Proponents of such a system suffer from a naive faith that government is benign, with only rare exceptions, and can be trusted with the power that would come with control of personal identification under its control. But such an ID would immediately become a national ID card for all other purposes as well, as the convenience of it would drive the emergent behavior of people everywhere.

Suppose such a proponent says something critical about some government official. Suppose some anonymous clerk then amends his record in the central identification database. Now he is a “fugitive, child-molesting, cop-killer terrorist, armed and dangerous”. Suppose he goes in to vote, and just as he is raising his pen to sign the register, a swarm of cops pour in and gun him down, pointing to the pen and saying, “He was holding a weapon!” Cops who shot him are put on paid administrative leave pending the investigation, which finds the shooting justified, and the cops then return to duty without even a negative comment on their records.

The elevation of personal identity to the importance accorded it today is an innovation in our legal tradition. Historically it has had much less importance, usually only where ownership of property was involved.

Be careful what you allow to exist within your midst. This is not some paranoid rant. All of the things described here are happening to real people right now.