How to Think About Voter Fraud (and Why)

• Publication year: 2022

41 Creighton L. Rev. 93. HOW TO THINK ABOUT VOTER FRAUD (AND WHY)

Creighton Law Review

Vol. 41

CHAD FLANDERS(fn*)

"We underscore that we express no opinion here on the correct disposition, after full briefing and argument, of the appeals from the District Court's September 11 order or on the ultimate resolution of these cases. As we have noted, the facts in these cases are hotly contested."(fn1)

I. INTRODUCTION

In 2007, debates over voter fraud reached a new level of intensity, where scholars, citizens, courts and legislatures all debated how widespread voter fraud was, and to what extent more aggressive prosecution and new requirements on voting would be necessary to combat the fraud. Controversy swarmed around whether the Department of Justice had too aggressively prosecuted voter fraud, and whether the report of the Electoral Assistance Commission exaggerated the amount of scholarly dissensus.(fn2) Legislatures passed laws requiring photo identification and proof of citizenship in order to vote, and courts were asked to rule on the constitutionality of these and other measures designed to limit the amount of voter fraud.(fn3) Seemingly, no branch of government has been immune from the debate over voter fraud and its implications.

In attempt to frame the debate in a more manageable way, several election-law scholars called for better empirical data on voter fraud. These scholars argue that the best way to resolve the voter fraud debate and to determine whether new laws are necessary to prevent voter fraud is to know to what extent voter fraud is really a problem. Thus, in a leading article on photo identification requirements, Spencer Overton concluded that policymakers should "place a moratorium on photo-identification proposals" until a better understanding of the extent of voter fraud is known.(fn4) Rick Hasen similarly decried the "empirical vacuum" in which supporters of new laws designed to deter voter fraud have been working.(fn5) In a concurring opinion in Purcell v. Gonzalez,(fn6) Justice Stevens struck a similar note when he highlighted the importance of the Court's decision "enhanc[ing] the likelihood that [debates over the constitutionality of voter identification requirements] will be resolved correctly on the basis of historical facts rather than speculation."(fn7) Such statements fit within a larger trend in election law scholarship that urges greater reliance on statistics and study rather than intuition and anecdote.(fn8)

This move, calling for better studies, may be partly strategic; there is, in fact, not much solid evidence that voter fraud is a real problem.(fn9) Nor is there much solid evidence that new photo identification laws would deter a substantial portion of voters.(fn10) Calling for more studies may be part of a strategy to shift the burden of proof to those who advocate more restrictions on the right to vote.(fn11) Whatever the motivation, the result has been less attention paid to the normative aspect of voter fraud (call this the "normative vacuum" in election law scholarship). Why exactly is voter fraud bad? Even if voter fraud happened only infrequently, would it still be a serious harm and could this justify attempts to prevent voter fraud? A similar set of questions could be asked from the other side of the voter fraud equation, the side having to do with new restrictions on people's ability to vote. Those who object to additional restrictions (photo identification, etc.) worry that the restrictions will deter many voters from going to the polls. However, if the burden on potential voters is slight, is there a problem in requiring voters to show photo identification before they vote? Is it a serious wrong if additional requirements deter some potential voters from going to the polls? In sum, is voter deterrence such a serious harm that even if photo identification laws deter only a few voters, it should be prohibited?

The pronounced lack of attention to the "normative vacuum" has potentially significant implications. Those who worry about voter fraud on the one hand, and voter deterrence on the other hand, may disagree not only about statistics, but also about the relative harmfulness of each. Until there is a better understanding of why voter fraud and voter deterrence are bad, studies about the number of incidences of each may be informative but may not necessarily be decisive. People might perceive even a limited amount of fraudulent votes to be enough to justify new measures to reduce fraud. Others may see any risk of voter deterrence as enough to prohibit new restrictions on the right to vote. Only a discussion about the underlying meaning of voting and elections can comprehensively answer such questions about how to address the issues of voter fraud and deterrence. A proper voter fraud debate requires discussion of both numbers and norms.

The aim of this Essay is not to deny that more study is necessary or that more attention should be paid to completed studies. Rather, the aim of this Essay is to make explicit as well as refine the normative theories already present in the voter fraud debate. Part II of this essay continues the argument for explicit normative theorizing in the voter fraud debate. Voter fraud and voter deterrence are notoriously difficult to measure, a point Judge Posner hammered home in his decision in Crawford; therefore, we have reason to believe that good studies might be hard to come by in the immediate future, if ever. Normative argument often fills the gaps left by reliable statistics and often influences how we interpret the available statistics. Accordingly, there is reason to believe that the debate over statistics will remain "hotly contested," as the Court stated in Purcell, even after subsequent studies are done.(fn12)

Part III identifies possible state interests in preventing voter fraud. Why, in other words, might the state want to prevent voter fraud? This question is not as easy to answer as it might first appear. Many of the state interests are structural, such as interests in protecting electoral integrity or preventing vote dilution. By saying that these interests are "structural," I mean to indicate that they are not easily captured by simply saying that some individual's rights have been violated. An increasing emphasis on "structures" of democracy has been the hallmark of recent election law scholarship.(fn13) Part III demonstrates that the Supreme Court in Purcell and the United States Court of Appeals for the Seventh Circuit in Crawford v. Marion County Election Board(fn14) are utilizing the language of recent election law scholars in their emphasis on structural concepts such as integrity and dilution. The courts in these opinions are defending a theory of the structure of democracy and the rights of some groups. Both opinions, however, are extremely compressed, and Part III is dedicated to interpreting the two decisions and making explicit the underlying, normative claims.

Part IV examines an alternative normative framework to the one that is implicitly present in both the Purcell and Crawford decisions. The alternative framework consists of two major claims. The first claim is that from a legitimacy standpoint, low levels of voter fraud should be treated as indistinguishable from low levels of error in tabulating the final election results - both are noise in the system. Although some noise is tolerable, too much noise in the system could alter the results of the election, thus threatening the election's legitimacy. So, in considering the state's interest in voter fraud, there may be a difference in its interest in preventing some fraud (which is not very great), and its interest in preventing large amounts of fraud (where the state has a significant interest).

Next, Part IV proposes the idea that the right of participation, though perhaps only denied to a few when new voter requirements are put in place, is the most relevant (and serious) harm to analyze in the voter fraud debate. By combining this claim and the conclusion of Part III, Part IV argues that there is an important asymmetry in the balance between the states' interests and the voters' interests in participating in elections. In cases that involve laws aimed at preventing voter fraud, the balance shifts toward the voters' interests. Understanding this balance helps us understand the utility of statistics about voter fraud and voter deterrence - that is, it shows when and where statistics will be useful. At the limit, this Essay suggests that courts might have the tools for evaluating each side's interests that can settle the debate even in the absence of reliable statistics on the amount of voter fraud. The courts in many cases can settle the voter fraud debate by basing their decisions largely on norms, in a word, rather than waiting for numbers.

II. THE UTILITY OF STATISTICS AND THE SIGNIFICANCE OF NORMS

This Part seeks to defend the idea that it is worth looking at voter fraud as a normative matter, and not merely as a statistical one, that is, one where all that remains to be done is to have better studies conducted and to look at the results. Those who advocate more study are not committed to denying that the normative dimension is important; what is worrisome, however, is that as a result of the focus on more studies the normative dimension is downplayed. The hope in this Part is to show that the...