The Volokh Conspiracy -

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.

	[Orin Kerr, April 29, 2008 at 1:56pm] Trackbacks Voter ID and Campaign Finance: Reading over Crawford v. Marion County Election Board, the Voter ID case, it occurs to me that the case shares a lot of structural similarities with McConnell v. FEC, 540 U.S. 93 (2003), the McCain-Feingold/BCRA campaign finance case. In both cases, there were two basic issues: (1) What's the degree of scrutiny for a facial challenge to a statute that is claimed to infringe on constitutional rights central to the voting process, and (2) How much evidence is there of a problem in need of correction, and how hard should the courts look for it? Of course, the two cases raise different issues, and as with any two cases, different Justices can vote differently for lots of perfectly legitimate reasons. Still, it's interesting to note that the statutes in the two cases have generally opposite political polarities — while Voter ID laws tend to be supported by Republicans and opposed by Democrats, the 41 "no" votes against BCRA in the Senate were 38 Republicans and 3 Democrats — and there was only one Justice of the seven on the Court for both cases who voted either to uphold both laws or strike both down. And the vote of that one Justice, Justice Stevens, has of course been the subject of considerable speculation to answer the puzzle of why he voted as he did. Related Posts (on one page): Similarities Between Crawford and McConnell: Voter ID and Campaign Finance: Comments [Jonathan Adler, April 30, 2008 at 9:15am] Trackbacks 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): Similarities Between Crawford and McConnell: Voter ID and Campaign Finance: Comments