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Similarities Between Crawford and McConnell:

I agree with Orin that the Supreme Court's Voter ID decision shares a structural similarity with that in McConnell v. FEC. It seems to me that another parallel between the two cases is the extent to which voter perceptions about the integrity (or lack thereof) can form the basis of a governmental interest that can justify regulation of election-related activities.

In McConnell, the Court held that the government had an important interest in preventing "the eroding of public confidence in the electoral process through the appearance of corruption," that could justify regulation of campaign contributions and campaign-related speech. Similarly in Crawford, the Court held that public concerns about election integrity were a legitimate government interest that could justify a voter identification requirement. In each case, this interest is independent of any actual threat to campaign or election integrity, and arguments that the measures in question are unwise or ineffective at preventing actual threats are not particularly responsive. What matters is that the measures in question have the potential to increase public confidence in the electoral system as a whole.

In the voter identification context, this would suggest that it does not matter whether absentee ballot fraud poses a far greater threat to election integrity than in-person voter fraud. Nor does it matter if a voter identification requirement will not deter enough voter fraud to alter election outcomes. What matters is that the average American voter believes that such a requirement is a common-sense measure to prevent fraudulent voting, and that if an ID is required for everyday economic transactions, it can surely be required when voters participate in collective decisions about how our government is to be run.

I am more sympathetic to the Court's decision in Crawford than in McConnell, but I think this parallel between the two cases is quite interesting, and may have important implications for the constitutionality of additional election reforms going forward.

Related Posts (on one page):

  1. Similarities Between Crawford and McConnell:
  2. Voter ID and Campaign Finance:
Andrew A (mail):
If "the average American voter believes that such a requirement is a common-sense measure to prevent fraudulent voting," isn't that only because Republicans have been spending the last few years telling us so, despite any substantial recent evidence of in-person voter impersonation fraud? So Republicans can whip up an uninformed frenzy and then use that as the rational justification for regulation? What a concept.
4.30.2008 11:14am
SIG357:
If "the average American voter believes that such a requirement is a common-sense measure to prevent fraudulent voting," isn't that only because Republicans have been spending the last few years telling us so, despite any substantial recent evidence of in-person voter impersonation fraud?




Since you are one of the people repeating this story line, perhaps you can tell me where it comes from. Have "the Republicans" really been banging on about "in-person voter impersonation fraud" the last few years? Is there any "substantial evidence" to back up that claim? I'm seeing concern that people not eligible to vote may be voting. That is not the same thing as in-person voter impersonation fraud.

I had a look at the Indiana law in question, and it (at least the version I saw) made no reference at all to voter impersonation, at least not directly.

As far as "substantial recent evidence" goes, I'm curious as to what you regard as evidence, how much is substantial, and how recent is recent.
4.30.2008 12:37pm
William D. Tanksley, Jr:
SIG, as you know, they haven't been able to produce any attempts to find evidence. All they have is the claim that vote fraud isn't a problem.
4.30.2008 1:57pm
arbitraryaardvark (mail) (www):
I'd like to point out that there's another potential similarity between McConnell and Crawford. In McConnell, a facial challenge to one form of censorship of election speech failed, but the statute fell several years later to the first as-applied challenge to come along. The McConnell counsel, Jim Bopp, didn't give up, but kept plugging away.
I have a dog in this hunt. I'm in Marion county. I've cast an early provisional ballot without ID (for Ron Paul) in the upcoming primary, which they are planning to not count.
I've filed suit to restrain them from not counting my vote.
I'm in the middle of revising my brief in support of preliminary injunction in light of Crawford. While Crawford lost, there are remaining state and federal claims not decided by Crawford. I think the chances of getting a prelim at this point, especially from the Republican judge, are slim, but still worth fighting for. I am currently doing this pro se, and would feel better about my chances if I could find counsel. Details at majors.blogspot.com.
4.30.2008 3:19pm
BZ (mail):
Sigh. Actually there were a relatively large number of instances of actual, documented in-person voter impersonation fraud briefed in Crawford. Leaving aside the question of whether the Brennan Center brief defined away the problem rather than actually looking at it, other briefs identified not only numbers of persons, but in some cases, the actual individuals whose votes were impersonated, how, and even when the votes were cast (they keep records of those sorts of things in New Mexico, for example). Some of those were later identified and testified to in congressional hearings. Others have come from state Attorney General investigations. Some were just media reports. See my comments (number 31, I believe) in Oren Kerr's thread.
4.30.2008 3:44pm
arbitraryaardvark (mail) (www):
Oops the link is joellpalmer.blogspot.com
4.30.2008 4:24pm
arbitraryaardvark (mail) (www):
BZ: I think you are right that plaintiffs and many of their supporters in Crawford hurt their case by arguing that in person voter fraud never happens.
I think it does happen here and there now and then, but that the voter fraud of not counting legitimate votes (including mine) does more damage to the election process than whatever good it does by deterring that kind of fraud.
My gut feeling, which I can't prove, is that Indiana's voter ID arrangements block at least 10 legitimate votes for each fraudulent vote deterred. Also, the fraudsters can just switch to some other method of fraudulent voting (such as absentee ballots), while the legitimate voter does not have ready alternatives.
4.30.2008 5:11pm
Teqjack (mail):
"... if an ID is required for everyday economic transactions, it can surely be required when voters participate in collective decisions about how our government is to be run"

If? Have you tried to cash a check, even at your ususal branch, in a bank recently? Or tried, in many areas/States, to buy tobacco? Alcohol to drink? Have you heard of proposed legislation to require proof-of-age to buy house paint (especially "gold" paint) which has solvents because they may be placed in plastic bags and produce "huffing" fumes?
4.30.2008 9:47pm
fishbane (mail):
If? Have you tried to cash a check, even at your ususal branch, in a bank recently? Or tried, in many areas/States, to buy tobacco? Alcohol to drink? Have you heard of proposed legislation to require proof-of-age to buy house paint (especially "gold" paint) which has solvents because they may be placed in plastic bags and produce "huffing" fumes?

It may be because I'm a "coastal elite", but I don't carry ID regularly, generally only have to display it when I interact with the government or get on a plane, and haven't been asked for it (modulo planes) in at least 6 months. I go to bars, purchase alcohol, buy cigarettes (at least for a bit longer, sigh). I got my current apartment without it. I use an online bank, and had no problem getting that account without any ID. I'm self-employed, so my "employers" never need to see my ID.

I'm 35 and look it, and live in NYC. The determinant factor, I think, is that I don't drive very often. In fact, I didn't realize I forgot to renew my license for almost a year, before I was planning a trip and thought to check before renting a car (almost an oops). When I lived in San Francisco, the story was mostly the same, except I'd be carded at bars a little more frequently, because I was younger then.

So at least in cities, it is perfectly easy to go through daily life without ID.
5.1.2008 11:10pm