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As the media shine a spotlight on conservative efforts to disenfranchise Democratic voters through aggressive anti–voting fraud measures, conservatives have begun their counterattack. A pair of op-eds published by conservative activists and pundits in the wake of a national anti&endash;voter fraud conference in Houston demonstrates the approach they will take. They also provide a case study in disingenuous, tautological conservative argumentation. They use statistics that are misleading, irrelevant or evidence of nothing more than the success of their own propaganda. Ad Policy

Both pieces cite polling data showing majorities support requiring voters to show photo identification. “Rasmussen Reports showed that 73 percent of Americans approve of Photo ID laws—and in fact, states that have Photo ID in place are seeing increased turnout at the polls, including minority groups (according to data from Indiana and Georgia),” writes Catherine Engelbrecht, the founder and president of True the Vote, a conservative anti-voter fraud group in Houston which sponsored the recent conference.

John Fund of National Review cites the same source. “A brand-new Rasmussen Reports poll finds that 64 percent of Americans believe voter fraud is a serious problem, with whites registering 63 percent agreement and African-Americans 64 percent,” he writes. “A Fox News poll taken last month found that 70 percent of Americans support requiring voters to show ‘state or federally issued photo identification’ to prove their identity and citizenship before casting a ballot. Majorities of all demographic groups agreed on the need for photo ID, including 58 percent of non-white voters, 52 percent of liberals and 52 percent of Democrats.”

These are circular arguments. Rasmussen Reports and Fox News are both Republican-leaning. Conservatives love to cite poll numbers, especially from sympathetic pollsters, that the public agrees with a false claim as if that made it true. But it doesn’t. Rasmussen finds 73 percent think photo ID requirements “do not discriminate.” That’s up from 69 percent the previous time Rasmussen asked the question. Does that mean photo ID laws became 4 percent less discriminatory during the intervening five months?

Whether voter fraud is a regular occurrence, and whether photo ID laws discriminate by disproportionately disenfranchising minorities, city-dwellers, young people and the disabled are matters of fact, not opinion. They should be answered empirically, not by taking a poll. One needs to only look at the data to discover that in-person voter fraud is virtually nonexistent in the United States today. The Republican solution to this imaginary problem, photo identification requirements, is clearly discriminatory, because members of some demographic groups are much less likely to have IDs than others.

If polling shows that a majority of the public disagrees with these factual findings, that just proves they are ignorant or that they have been misled by conservative propaganda. And then conservatives turn around and cite the evidence of mass ignorance, or successful conservative propaganda, as proof that their false claims are true.

Even the majorities in favor of photo ID laws cited by Engelbrecht and Fund are not dispositive. Unlike incorrect beliefs about factual matters, popular opinion on what voting law should be does have some relevance. But unlike some other policy matters, voting rights law should not be decided solely on the basis of popular opinion. Voting rights are civil rights. And it is a fundamental American value that civil rights cannot always be legislated away. A majority’s desire to oppress or disenfranchise the minority must be constrained.

The remainder of Engelbrecht’s and Fund’s analysis are mere sophistry and speculation. That’s election law expert Rick Hasen awarded Fund’s piece the “Fraudulent Fraud Squad Quote of the Day” for the following contention: “Most fraudsters are smart enough to have their accomplices cast votes in the names of dead people on the voter rolls, who are highly unlikely to appear and complain that someone else voted in their place.”

Hasen responds, “I’d love to see the evidence of a single election in the last quarter of a century in which in person impersonation voter fraud using dead people affected the outcome of an election.” Opinion polls notwithstanding, photo ID laws remain a solution in search of a problem.