Supreme Court Revives Controversial Citizenship Data System
This is what democratic societies do to themselves when the passion for uniformity outruns the habit of trust: they build a machine to answer a question their neighbours once answered, and then they forget the neighbours were ever asked.
The Supreme Court of the United States has revived a data system that checks the citizenship of voters against federal records, a system that a lower tribunal had set aside and that the country has argued about with unusual heat. The quarrel, as the parties conduct it, concerns whether non-citizens vote in meaningful numbers. One side insists the fraud is real and hidden; the other insists it is rare, and that the allegation is a pretext. Nobody has settled this, and I will not pretend to. What interests me is that the dispute over facts has concealed a transformation in form. Whatever the truth about non-citizen voting, the United States has now moved the act of vouching for a voter from a place where people know one another to a place where no one knows anyone.
The strongest case for the system deserves a fair hearing, and it is a good one. Local registrars are uneven. Some are careless, some are partisan, and a republic of many thousands of jurisdictions cannot guarantee that a ballot in one county is guarded as well as a ballot in the next. A single federal record, consulted everywhere by the same rule, promises equal treatment: the citizen in a small town and the citizen in a great city are measured against the same ledger. This is the democratic instinct at its most admirable. Equality before the law has always required that the law not depend on the temper of the local clerk.
Yet observe what the instinct purchases. Under the older arrangement, a person’s standing as a voter was established by a chain of human attestations, the registrar who took the form, the poll worker who knew the family, the local official answerable to people who could remove him. These were imperfect witnesses, but they were witnesses, and a wrongly challenged citizen could appeal to someone who might recognise her. Under the new arrangement, her standing depends on whether a federal record, assembled for other purposes by agencies that never met her, happens to agree with itself. The burden of proof moves quietly. She was presumed a citizen because she stood there; now she is a citizen because the record permits it.
Consider the woman who was naturalised a decade ago and has since married, moved twice, and changed her surname. She arrives at the county office with her certificate in a plastic sleeve, the corners softened from years in a drawer. The clerk is sympathetic. The clerk is also powerless, because the screen has returned an answer and the clerk did not build the screen. Here is the peculiar character of the new despotism I have long feared: no one in the room is cruel, and no one in the room is responsible. The authority that doubts her is everywhere and cannot be addressed.
There is a further mechanism, less visible and more durable. A remedy adopted against a disputed disease tends to confirm the disease. Once a system exists to find non-citizen voters, every mismatch it produces becomes evidence that such voters exist, and every flagged name, however innocent, enters the public argument as a statistic. The machine’s errors become the justification for its enlargement. Those who opposed it on grounds of fact will find the facts increasingly manufactured by the very instrument they opposed, and those who supported it will point to its output as vindication. The question the country could not answer will be answered by the database, and the answer will be yes.
I do not say the Court decided wrongly on the law; that is a matter for jurists. I say that Americans, weary of distrusting one another, have found it restful to hand the distrust to an office, much as a quarrelling family might hire a steward so that no one need speak at dinner. The peace is genuine. So is the silence that follows.
The remedy is not to abolish verification, which a free people is entitled to demand, but to insist that every doubt the machine raises be resolved by a person who can be named, questioned, and voted out, and that the presumption rest with the citizen standing at the counter rather than with the record behind the glass.
The woman slides her certificate across. The clerk looks at it, then back at the screen, and it is the screen the clerk believes.