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The Problem of Voter Fraud

38 Pages Posted: 30 Aug 2014 Last revised: 29 Jun 2017

Michael D. Gilbert

University of Virginia School of Law

Date Written: September 5, 2014

Abstract

Voter ID laws have provoked a fierce controversy in politics and public law. Supporters claim that such laws deter fraudulent votes and protect the integrity of American elections. Opponents, on the other hand, argue that such laws, like poll taxes and literacy tests before them, intentionally depress turnout by lawful voters. A vast literature, including legal scholarship and opinions of the Supreme Court, accept these two narratives. But these narratives are wrong, or at least incomplete. Voter ID laws can have many effects, including surprising ones like this: they can exacerbate fraud. To illustrate, suppose that without a voter ID law candidates A and B would receive 13 and 10 lawful votes, respectively, and B would receive two fraudulent votes. Candidate A wins non-fraudulently, 13 to 12. Now suppose that with a voter ID law, candidates A and B would get nine and nine lawful votes, respectively (less than before because of depressed turnout), and B would get one fraudulent vote (less than before because of fraud deterrence). Candidate B wins fraudulently, 10-9. The conditions necessary for ID laws to have this effect are simple and may be common. The paper captures this risk with a formula, the Election Integrity Ratio, which judges and scholars could use to determine when ID laws protect elections — and when they cause the very problem they purport to solve. The paper has implications for constitutional law and public policy. It also has broad reach. Any law that deters fraudulent votes, depresses lawful votes, or does both — citizenship and residency requirements, for example, which are used throughout the United States and around the world — are subject to the analysis herein.

Keywords: voter ID, right to vote, voter fraud, vote suppression

JEL Classification: K00, K19, K39

Suggested Citation

Gilbert, Michael D., The Problem of Voter Fraud (September 5, 2014). Columbia Law Review, Vol. 115, p. 739, 2015; Virginia Public Law and Legal Theory Research Paper No. 2014-56; Virginia Law and Economics Research Paper No. 2014-15. Available at SSRN: https://ssrn.com/abstract=2488645

Michael Gilbert (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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