Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements

Article excerpt

 
I. THE FAMILIAR PLACE OF PERCEPTIONS IN THE DEBATE OVER ELECTION 
   FRAUD                                                            1740 
 
II. SURVEY METHODOLOGY                                              1742 
 
III. BELIEFS IN THE FREQUENCY OF VOTER FRAUD, VOTER IMPERSONATION, 
     AND VOTE THEFT                                                 1744 
 
IV. PERCEPTIONS OF FRAUD AND THE LIKELIHOOD OF VOTING               1750 
 
V. VOTER IDENTIFICATION AND FEARS OF FRAUD                          1754 
 
VI. CONCLUSIONS                                                     1758 
 
APPENDICES                                                          1761 
 
    APPENDIX A                                                      1761 
 
    APPENDIX B                                                      1765 
 
    APPENDIX C                                                      1768 
 
    APPENDIX D                                                      1770 
 
    APPENDIX E                                                      1772 
 
    APPENDIX F                                                      1773 

The current debate over the constitutionality of laws mandating photo identification for voters presents a series of largely unanswered, and in some respects, unanswerable, empirical questions. For the most part, the parties to the litigation culminating in the case currently before the Supreme Court, Crawford v. Marion County Elections Board, (2) have speculated about the number of illegal votes cast and the number of legal voters who would be prevented from voting were voting conditioned on the production of a driver's license or some other form of state-issued voter identification. When critics of voter ID requirements point to the lack of prosecutions or reported incidences of voter impersonation fraud, defenders of such laws reply, in part, that successful fraud goes undetected. When defenders of voter ID argue that such laws lead to very few people being turned away from the polls or having their votes go uncounted, critics respond that even a violation of the voting rights of a few is constitutionally impermissible, and that precious little data exist to assess the impact of such laws on the currently voting population or the deterrent effect it might have on future voters. With the scarcity of empirical findings to settle some of the factual issues central to this debate, (3) there is great risk that the Court will resign itself--as it hinted it might in Purcell v. Gonzalez, (4) quo-ted above--to its intuition that "fear" of election fraud "drives honest citizens out of the democratic process." This intuition, however, presents a testable empirical proposition, which this Essay attempts to evaluate based on new survey data that assess the popular perception of election fraud and the likelihood that such beliefs lead to voter disengagement.

We begin this Essay in Part I by situating the argument about fears of fraud within the debate over voter identification requirements and election law more generally. The argument follows a path familiar to campaign finance law, in which the Court elided difficult questions about the empirics of campaign contributions and corruption by relying on the prevention of the appearance of corruption as a state interest sufficient to justify restrictions on campaign contributions and expenditures. (5) Part II describes the unique national survey we conducted to assess how widespread popular fear of two different types of election fraud is, and the relationship between such fear and the likelihood of people turning out to vote. Part III discusses our findings about the prevalence of perceptions of vote fraud and how those perceptions vary among political, racial, and other demographic subgroups. In Part IV, we present findings suggesting that such fears of fraud, while held by a sizable share of the population, do not have any relationship to a respondent's likelihood of intending to vote or turning out to vote. …