Rev. Al Sharpton recently wrote an Op-Ed for the LA Times on voter identification laws.  In it, he argues that the recent push by conservatives in favor of increased voter ID laws represents an “American De-Evolution” that threatens the efforts of those brave civil rights activists that have worked hard to correct longstanding problems of voter discrimination and disenfranchisement.

Sharpton opens by raising issues like the availability of government offices that issue IDs and the constraints this can put on the working poor.  (Some of these were extreme: he mentions a Mississippi office only open on the second Thursday of the month, and a Wisconsin office that is only open on the fifth Wednesday of the month.  Seriously? Wisconsin and Mississippi, if these stories are actually true, get your respective acts together. That’s just stupid.)  Sharpton also cites data from the Brennan Center that claims that minorities and elderly people are adversely affected by voter ID laws.

These arguments, however, are questionable at best.  Kansas is strong proof that a state can establish a system of voter ID enforcement without adversely impacting its population.  Other states have also had significant success that raises questions about these arguments against voter ID laws.  Given this evidence, Sharpton’s arguments that such laws discriminate against minorities and against the working poor don’t seem to hold much water.

And yet, Sharpton only mentions these items to build up to the philosophical crux of his argument: the government, by requiring IDs, is acting against the rights of its citizens by infringing on the rights of its worst-off citizens to vote.  By requring IDs, states are repeating the racism and oppression of the past and are de-legitimizing the will of entire segments of the population.

Those championing tough new voter ID laws say they are concerned about voter fraud. I’ve heard their arguments: “What’s wrong with requiring voters to have an ID? After all, you need a state-issued ID to drive, to get on an airplane, to write a check. Why not to vote?”

Sharpton makes a philosophical argument that is worthy of some consideration.  Conservatives often point out how the government requires licensing and identification for driving a car or boarding an airplane.  If such common things require an ID, then, why should voting be any different?  Sharpton responds to this argument by criticizing conservatives for confusing “rights” and “privileges” with each other:

Here’s why. On a fundamental level, that argument confuses privileges with rights. No American has a constitutional right to drive, fly or pay by check. We do not have constitutionally protected rights to rent cars or to use credit cards. That some people think these activities are comparable to voting is alarming — and revealing.

Every American 18 or older has the right to vote. Poor Americans, black Americans, Americans who live in rural areas, Americans of every background. For decades we have recognized this truth, making it easier to vote, expanding options for casting ballots and improving access to registration. These new ID laws take us backward; they truly are nothing more than modern-day poll taxes and literacy tests.”

[emphasis mine]

The logic of Sharpton’s argument seems to proceed as follows:  because voting is a constitutionally guaranteed “right,” voting should be readily accessible for all Americans.  Putting a legal barrier like voter ID requirements in the way of voting, therefore, is harmful to the government’s process of properly guaranteeing the protection of its citizens rights under the Constitution because it makes voting less accessible.  In contrast, things like flying and driving are not constitutionally guaranteed rights but rather are “privileges” afforded by technology and the marketplace.

These “privileges” Sharpton mentions all carry with them ID requirements and have other legal strings attached, often for reasons of adequate regulation and security.  No one wants some punk twelve year old getting behind the wheel and causing an accident; thus, driving on public roads and highways requires safety exams, licensing, vehicle registration, and (in many states) insurance.  Similarly, the TSA stakes its entire existence on the need to guarantee airport safety and security (though it arguably does not do the best job).  Even photo IDs required when cashing paper checks or swiping credit cards are required out of security concerns and an effort to prevent fraud.  A citizen is responsible for abiding by these regulations in everyday practice, and in theory this contributes to the public good.

When Sharpton summons the images of poll taxes and literacy tests, he is claiming that requiring a state-issued ID to vote harms the individual’s ability to exercise his or her rights.  To harm those rights is akin to discriminating and suppressing turnout, just as the old white aristocracy did to former slaves in the Old South with literacy tests and poll taxes.

And if you buy the rhetoric Sharpton may prefer to use, Republicans are mostly old white folks anyway, so the comparison is appropriate.

Rhetorically it sounds simple enough, but Sharpton’s reasoning is considerably flawed:  he creates a false dichotomy between “rights” and “privileges” that doesn’t exist in the real world.

The two things certainly can be exclusive: owning a phone is definitely a “privilege” and not a “right” that is enshrined in law, as I am responsible for paying for and maintaining that phone.  Conversely, exercising the “right” to move freely throughout the United States cannot under normal circumstances be impeded by fines or taxes issued for some “privilege” of crossing interstate borders.  That practice died alongside the Articles of Confederation.  However, some things exist with qualities of both a “right” that is legally protected and a “privilege” that carries some form of individual responsibility.

Take, for example, the Second Amendment.  It is a bona fide, constitutionally-protected right that guarantees our freedom to bear arms.  And yet, that has not stopped states from enacting registration guidelines surrounding the ownership and possession of weapons.  Legal time, place, and manner regulations  can and do apply when using firearms.  Further, the government is not legally obligated to provide every citizen a handgun such that they can exercise that right freely.  Why is this so?  Because firearms (or swords, or any other type of weapon) are material objects that exist separate from the individual person, and possession of a firearm is simultaneously both a “privilege” and a “right” that must be carefully protected by both the private citizen and the government, or it could be lost.

These same basic principles apply to voting.  Voting, while a fundamental aspect of the democratic process, is not a biologically native function.  There is no “voting gland” that we naturally have.  Ergo, while it is a legally protected right in the sense that it is constitutionally guaranteed and essential to the operation of our republic, it is also a privilege in that it requires a certain level of effort and upkeep on the part of the citizen in order to utilize it.  One must fill out the proper paperwork and register to vote.  One can only go to the polls at certain times and on predesignated days as determined by law.  If one does not actively go to vote, the government will not drive to that individual’s house and deliver a ballot to them.  Further, a voter can only vote once at a time and not as often as he or she might like on a given election day.

Sharpton’s sharp distinction between “rights” and “privileges” would make any form of restriction over the voting process, however reasonable, a travesty.  However, that’s simply not based in reality.  Things like voting have the characteristics of both “rights” and “privileges” in legal and moral terms.  The government is in no way disenfranchising people by acknowledging this with appropriate rules and regulations.  And when the government is tasked to facilitate such important things as voting, it must take special care to guarantee the security of that process.

Election security is indeed an important issue.  The truthfulness of the vote count is one of the most critical aspects of our electoral process, as it is supposed to reflect the will of the people.  Despite arguments to the contrary that electoral fraud is uncommon, we have seen plenty of evidence this year that voter fraud does in fact happen with frightening regularity:  union members were brought in buy the busload to vote illegally in the Wisconsin recall election, and James O’Keefe and Project Veritas have shot multiple undercover videos documenting the ease with which one could vote fraudulently (see the DC and New Hampshire videos for examples).

Sharpton’s sharp division between “rights” and “privileges” will never be able to grasp the complex relationship that the two can possess in the real world.  This division does not allow him to appreciate how voter ID laws would serve to protect the rights of those he is attempting to defend by making sure that their votes truly are counted and are not diluted by fraudulent ballots.  This is why requiring a form of state-approved ID (which can often be acquired free of charge) to vote is not a morally reprehensible move, as Sharpton would claim, but is rather a morally praiseworthy one.  By adding an extra level of security at the polls, the state is helping to ensure that the election will be an accurate reflection of the will of the people.

David Giffin | Emory University | @D_Giffin