Proposed voter ID laws pose a risk to our democracy – Sydney Morning Herald
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The federal government announced this week that it was considering enacting new voter identification laws, requiring voters to show valid identification before casting a ballot at a federal election.
On its face, the proposal looks eminently reasonable. We require identification for many things in our society, and this is only increasing in a world of vaccine certificates. The law also allows for multiple forms of identification and other mechanisms to prove your identity. But appearances can also be deceiving.
A Sydney voter waits to cast his ballot in the 2019 federal election. Credit:David Gray
Most Australians have some form of formal identification. But of those who do not, an overwhelming number are Aboriginal and Torres Strait Islander people. Just like US voter identification laws that appear racially neutral, the proposed law therefore has a very real potential to be racially discriminatory in effect.
It also sends a message to Australians that voting is a privilege, rather than a duty. This goes against the spirit of our system of compulsory voting, and the sense of civic duty that helps underpin it.
Failure to vote in Australia carries with it a modest fine. But part of how we get people to the ballot box is through social pressure, pre-polling, Saturday voting, and a sausage sizzle. Asking people to sign a statutory declaration rather than if they want onions with their sausage is contrary to this spirit.
An equally real danger is that the proposed law is designed to respond to a problem for which there is almost no evidence in Australia. Voter ID laws are designed to address the risk of voter fraud – for instance, to stop people seeking to vote twice, or voting for someone who is still on the roll but should not be.
A woman casts her vote in Georgia during the US presidential election last year. Credit:AP
But the Australian Electoral Commission recently estimated the rate of multiple voting in Australian federal elections was as low as 0.03 per cent. There is comparably little reason to think that illegal voting – for example, for someone who is dead – is a significant problem. So as the opposition said in response to the proposal, this is a fix to a problem that largely does not exist in Australia.
This poses very real questions about the constitutionality of the proposed law. The High Court has recognised that the Constitution protects a universal right of access to the franchise. Limits on access to the franchise will also only be upheld by the court where they are reasonably necessary to advancing the public interest. Laws that respond to an illusory problem are also unlikely to be seen as necessary by the Court.
Perhaps even more troubling, legislating in response to non-existing problems follows a recent and disturbing pattern in the United States. President Trump and his supporters have consistently suggested that the 2020 US presidential election was plagued by widespread voting irregularities and sought on this basis to overturn the election results and enact wide-ranging voter ID requirements.
This, however, is a clear abuse of the idea of electoral integrity. There was again almost no evidence to support these claims and efforts. Rather, it was a nakedly partisan effort by Trump and his supporters to keep control of the White House and by Republican state legislators to suppress Democrat-leaning minority votes.
Australia, to date, has been fortunate to be free of this kind of rank partisanship and abuse of commitments to democracy and electoral integrity. But the proposed new law suggests that the same kind of language and politics may soon be coming to us. And that, far more than potential multiple voting, is a clear risk to democracy. We need to put a stop to it – before it stops us from preserving the democracy we have and cherish.
Rosalind Dixon is a professor of law and director of the Gilbert + Tobin Centre of Public Law at UNSW Sydney. She is co-author of Abusive Constitutional Borrowing: Legal Globalisation and the Subversion of Democracy.
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