In his first inaugural address, President Franklin Roosevelt assured the American people that "the only thing we have to fear is fear itself."1 President Roosevelt's famous statement begs the question, however, of why we should fear fear itself. What, or whom, does fear harm? When faced with the presence of fear, society must consider what steps it is willing to take and what it is willing to give up in order to address that fear. These considerations become particularly acute when the government uses the existence of fear as a rationale for legislation. The propriety of fear-based lawmaking is questionable, since fear is often unreasonable, malleable, and vague.2
This debate has recently arisen in the context of state laws that require individuals to present photo identification in order to vote. While proponents generally say that identification requirements are necessary to prevent in-person voter fraud, they have also argued that such laws are necessary to address voter fear.3 Without photo identification laws, proponents contend, voters will fear that fraud is occurring at the polls. Indeed, states have made this argument even in the absence of any evidence of actual in-person voter fraud.4 In Crawford v. Marion County Election Board, the Supreme Court accepted the State of Indiana's argument that addressing fear of fraud is a state interest with "independent significance" apart from the interest in halting actual fraud.5 In dicta in Purcell v. Gonzalez, the Court likewise expressed approval of laws designed to calm "[v]oters who fear their legitimate votes will be outweighed by fraudulent ones."6
The Court has yet to evaluate a voting law that uses fear as a rationale under heightened scrutiny, as the law in Crawford survived a deferential level of review.7 As such, courts have not yet had occasion to determine if a state's interest in addressing fear of fraud is compelling. Indeed, courts presently lack an analytical framework for making such a determination. Yet a challenge that successfully triggers more exacting scrutiny is foreseeable; indeed, Crawford provides several hints of the shape such a challenge could take.8 Unless states have significantly greater success than in previous cases in gathering evidence of in-person voter fraud, they will not be able to rely upon an interest in addressing actual fraud to survive heightened scrutiny. As such, the nature of the state's interest in addressing fear of fraud will likely constitute the major focus of the case.
Fear in the photo ID context is particularly problematic, since such laws completely deny the right to vote to one group of legitimate voters - individuals without a photo ID, who are typically indigent, elderly, or members of minority populations9 - in order to calm the fears of another group of voters. Measures that ensure confidence in the electoral system are important, but their salutary effect must be balanced against the burdens they create. Freedom from fear is not a fundamental right, but the right to vote is.10 A framework for evaluating fear -based election laws is thus necessary not simply to prepare courts for a foreseeable controversy but also, and more importantly, to safeguard the fundamental right to vote. While this problem is implicated any time the state uses fear to tighten its voter requirements, the risk of disenfranchisement is more acute when the requirement is a photo ID, since such IDs are often particularly difficult to obtain.11 In addition, states have so far made the fear argument most prominently in the photo ID context.
Decisions such as Crawford seem to be based on judicial assumptions that fear is a sufficiently serious harm to serve as a legitimate target of legislation. To justify their acceptance of voter fear as a rationale for lawmaking, and for the sake of consistency and manageability, courts must articulate the legal principles behind such decisions and establish a generally applicable standard for the evaluation of such laws. …