Appearance Matters: Why the State Has an Interest in Preventing the Appearance of Voter Fraud

Abstract

As the public increasingly focuses attention on problems of election fraud, courts have struggled to deal with the constitutionality of anti-fraud measures. Reflecting this, the Supreme Court has agreed to hear a case on the constitutionality of a law that requires voters to present photo identification to vote in-person. Critics say that the law puts an unconstitutional burden on the right to vote while advocates argue the state's interest in preventing voter fraud is strong enough to justify this burden.

Drawing an analogy to campaign finance law, this piece argues that the state has an interest in preventing not only election fraud, but also in preventing the appearance of election fraud, an interest not previously recognized by federal courts. The state has this interest in election law for the same reason it does in campaign finance law, namely because it has an interest in preventing voters from losing faith in the democratic process and thus dropping out of that process. Borrowing from the standard of proof courts have used to prove the appearance of corruption exists in financing, this paper analyzes popular opinion, media reports, and legislators statements to determine that the appearance of voting fraud exists - and therefore the state can act on its interests in combating that appearance. Due to its current relevance, this paper analyzes photo identification requirements as an example of the type of anti-fraud law which might not be constitutional if the state's only interest was in preventing the actual fraud, but might be when factoring in the appearance of corruption interest.