This Article seeks to highlight the collateral effect of several inconsistent recent federal court decisions that consider a state's interest in addressing the impact of fraud on the electoral process. In an effort to evaluate the impact of varying types of election-related fraud on the political process, I propose that courts view the concept with a focus on (1) the entity that commits the deceptive acts and (2) the effect those acts have on the democratic process. Evaluating recent opinions through this lens illustrates that federal courts are more likely to exhibit deference to a state's interest in limiting avenues for voters acting fraudulently, or what I term "voter-initiated" fraud, than to issues relating to what I call "voter-targeted" fraud, or actions by various entities intended to deceive, defraud, or intimidate voters. Conversely, quantitative and qualitative evidence, while only mildly conclusive, suggests that the most prevalent and problematic type of election fraud is voter-targeted fraud.
This Article suggests that federal courts' current inconsistent evaluation of a state's interest in addressing election fraud stems in part from the lack of a test for evaluating that interest. Such a test should differentiate between the several different types of fraudulent acts that can affect the electoral process. Specifically, I argue that courts could engage in a more consistent approach by linking the analysis of the state's interest in combating election fraud to both the level of broad qualitative and quantitative evidence available regarding the prevalence of that particular strain of fraud, and to the constitutional rights that the fraudulent acts, and limits on those acts, implicate.
Election Law | State and Local Government Law
Jocelyn Friedrichs Benson, Voter Fraud or Voter Defrauded? Highlighting an Inconsistent Consideration of Election Fraud, 44 Harv. C.R.-C.L. L. Rev. 1 (2009).