Vote Fraud in the eye of the beholder: The role of public opinion in the challenge to voter identification requirements

Harvard Law Review

Volumn 121, Issue 7, 2008, Pages 1737-1774

  Ansolabehere, Stephen ^a   Persily, Nathaniel ^b  

^a MASSACHUSETTS INSTITUTE OF TECHNOLOGY   (United States)

^b Columbia Law School ^*

Author keywords

[No Author keywords available]

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EID: 44649203643     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (63)

1. Purcell v. Gonzalez, 127 S. Ct. 5, 7 (2006) (per curiam) (emphasis added).
2. 472 F.3d 949 (7th Cir. 2007) (upholding Indiana photo identification law), cert. granted, 128 S. Ct. 33 (2007).
3. The studies submitted as part of the litigation are all unpublished. See JEFFREY MILYO, THE EFFECTS OF PHOTOGRAPHIC IDENTIFICATION ON VOTER TURNOUT IN INDIANA: A COUNTY-LEVEL ANALYSIS (2007), available at http://truman.missouri.edu/uploads/Publications/ Report%2010-2007.pdf (demonstrating that voter turnout increased in Indiana after the implementation of photo ID requirements);
4. R. Michael Alvarez et al., The Effect of Voter Identification Laws on Turnout (Cal. Inst. of Tech., Social Science Working Paper No. 1267R, 2008) (demonstrating that certain types of ID requirement depress turnout for certain classes of citizens);
5. Matt A. Barreto et al., The Disproportionate Impact of Indiana Voter ID Requirements on the Electorate (Nov. 8, 2007) (unpublished manuscript, on file with the Harvard Law School Library), available at http://depts. washington.edu/uwiser/documents/Indiana_voter.pdf (demonstrating that certain classes of citizens are less likely to have valid ID and suggesting that Indiana's voter ID law will have a disparate impact on such groups).
6. 127 S. Ct. 5.
7. See Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. PA. L. REV. 119 (2004).
8. For such an assessment, see Stephen Ansolabehere, Access Versus Integrity in Voter Identification Requirements, 63 N.Y.U. ANN. SURV. AM. L. (forthcoming May 2008).
9. See Spencer Overton, Voter Identification, 105 MICH. L. REV. 631 (2007) (arguing that some disenfranchisement due to voter ID requirements is certain whereas voter impersonation fraud is a hypothetical problem).
10. Briefs supporting the photo ID law and restating the Purcell argument include: Brief of the Am. Unity Legal Def. Fund as Amicus Curiae Supporting Affirmance at 23, Crawford v. Marion County Election Bd., Nos. 07-21 & 07-25 (U.S. Dec. 10, 2007); Brief for Lawyers Democracy Fund as Amicus Curiae in Support of the Respondents at 27, Crawford, Nos. 07-21 & 07-25 (U.S. Dec. 10, 2007); Brief of the Republican Nat'l Comm. as Amicus Curiae Supporting Respondents at 20, Crawford, Nos. 07-21 & 07-25 (U.S. Dec. 10, 2007); Brief of Texas et al. as Amici Curiae Supporting Respondents at 27, Crawford, Nos. 07-21 & 07-25 (U.S. Dec. 10, 2007); Brief for the United States as Amicus Curiae Supporting Respondents at 18, 28, Crawford, Nos. 07-21 & 07-25 (U.S. Dec. 10, 2007); Brief of United States Senators Mitch McConnell et al. as Amici Curiae in Support of Respondents at 9, Crawford, Nos. 07-21 & 07-25 (U.S. Dec. 10, 2007); Brief of Democrat and Republican Election Prof'ls as Amici Curiae in Support of Affirmance at 5, Crawford, Nos. 07-21 & 07-25 (U.S. Dec. 7, 2007); Amicus Curiae Brief of Mountain States Legal Found. in Support of Respondents at 24, Crawford, Nos. 07-21 & 07-25 (U.S. Dec. 7, 2007); Brief of State Respondents at 21, 53, Crawford, Nos. 07-21 & 07-25 (U.S. Dec. 3, 2007). Briefs opposing the photo ID law that address the argument in Purcell include: Brief of Amici Curiae the Brennan Ctr. for Justice et al. in Support of Petitioners at 30, Crawford, Nos. 07-21 & 07-25 (U.S. Nov. 13, 2007); Brief of Amicus Curiae Professor Richard L. Hasen in Support of Petitioners at 36-37, Crawford, Nos. 07-21 & 07-25 (U.S. Nov. 9, 2007); Brief for Petitioners [William Crawford et al.] at 53, Crawford, No. 07-21 (U.S. Nov. 5, 2007).
11. Brief of State Respondents, supra note 8, at 53.
12. Id. at 54.
13. See id.; Brief for Lawyers Democracy Fund as Amicus Curiae in Support of the Respondents, supra note 8, at 27; Brief of the Republican Nat'l Comm. as Amicus Curiae Supporting Respondents, supra note 8, at 14; Brief of Democrat and Republican Election Prof'ls as Amici Curiae in Support of Affirmance, supra note 8, at 34.
14. 424 U.S. 1 (1976) (per curiam).
15. 540 U.S. 93 (2003).
16. Buckley, 424 U.S. at 27 (per curiam); see also Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 389 (2000).
17. See Persily & Lammie, supra note 5, at 128-34.
18. See Crawford v. Marion County Elections Bd., 472 F.3d 949, 953 (7th Cir. 2007), cert. granted, 128 S. Ct. 33 (2007) (discussing reasons why states would have difficulty enforcing bans on voter impersonation).
19. See generally Margaret Levi & Laura Stoker, Political Trust and Trustworthiness, 3 ANN. REV. POL. SCI. 475, 476-85 (2000) (reviewing the political science literature on trust in government, and describing survey data from the United States and other countries).
20. See http://www.polimetrix.com.
21. These data are available at http://web.mit.edu/polisci/portl/index.html (last visited Apr. 5, 2008);
22. http://web.mit.edu/polisci/portl/cces/commoncontent.html (last visited Apr. 5, 2008);
23. http://web.mit.edu/polisci/portl/detailpages/fraud.html (last visited Apr. 5, 2008);
24. and http://web.mit.edu/polisci/portl/detailpages/portlcces2007.html (last visited Apr. 5, 2008).
25. For a discussion of the methodology of surveys of this type, see generally DOUGLAS RIVERS, SAMPLE MATCHING: REPRESENTATIVE SAMPLING FROM INTERNET PANELS, http://web.mit.edu/polisci/portl/cces/material/sample_matching. pdf.
26. Because very low-income minorities and nonvoters were underrepresented, we weight the sample to offer some correction for this. In regression analyses, we control for information and education to compensate for possible biases.
27. See Press Release, Polimetrix, Handicapping the 2006 Election (Nov. 6, 2006), available at http://www.pollster.com/ Polimetrix%20CCES%20Press%20Release%20110606.pdf.
28. The law at issue in Purcell required voters to present proof of citizenship when registering to vote and to present identification when voting on election day. Purcell v. Gonzalez, 127 S. Ct. 5, 6 (2006).
29. See, e.g., Rasmussen Reports, National Survey of 800 Likely Voters, January 2-3, 2008, http://www.rasmussenreports.com/public_content/ politics/current_events/general_current_events/general_current_events_toplines/ toplines_voter_id_january_2_3_2008 [hereinafter Jan. Survey].
30. By asking respondents how frequently they thought "such vote fraud" occurs, the 2007 phrasing of the question may have primed respondents to express their concerns about voter fraud more generally, rather than the type of fraud asked about in the question. The 2008 question replaces "such vote fraud" with "this" so respondents are not at risk of answering a question about voter fraud more generally. As discussed later, the share agreeing to the top category dropped and to the bottom category increased. We also split the sample to see whether the offered categories affected the distribution of responses. For example, under the 2007 version a respondent might not have seen a difference between the second category ("occasionally") and the third ("infrequently"). The difference in the categories did not lead to any substantial effect on responses to the first and last categories but might have led to some shuffling among the intermediate categories.
31. Jan. Survey, supra note 24.
32. See infra tbl.4.
33. Surprisingly, there is no difference between whites and blacks in their beliefs as to the frequency of Vote Theft.
34. See infra tbl.4.
35. The Rasmussen poll concerning vote fraud similarly found modest differences among partisans. Fourteen percent of Democrats and 36% of Republicans believe that "[i]n most elections, large numbers of people are allowed to vote who are not eligible to vote." See Jan. Survey, supra note 24. When we added Vote Theft into a regression (not presented here) with Voter Fraud as the dependent variable, only partisanship and perceptions of Vote Theft, but none of the demographic variables, remained statistically significant.
36. See STEVEN J. ROSENSTONE & JOHN MARK HANSEN, MOBILIZATION, PARTICIPATION, AND DEMOCRACY IN AMERICA 141-45 (1993).
37. See id. at 196-209.
38. This percentage was calculated by the authors from the American National Election Survey. Ctr. For Political Studies, Univ. of Mich., The 2004 National Election Study, at variable V045018X, http://www.electionstudies.org/studypages/ 2004prepost/2004prepost.htm (last visited Apr. 5, 2008).
39. See U.S. ELECTION ASSISTANCE COMM'N, A SUMMARY OF THE 2004 ELECTION DAY SURVEY 5 (2005), available at http://www.eac.gov/clearinghouse/docs/eds2004/2004- election-day-survey/.
40. See Brian D. Silver, Barbara A. Anderson & Paul R. Abramson, Who Overreports Voting?, 80 AM. POL. SCI. REV. 613, 615 (1986) (concluding that educated people overreport turnout).
41. U.S. ELECTION ASSISTANCE COMM'N, THE 2006 ELECTION ADMINISTRATION AND VOTING SURVEY 13 (2007), available at http://www.eac.gov/clearinghouse/ docs/eds-2006/2006-eds-votes-and-turnout.pdf/attachment_download/file.
42. See infra app. D.
43. See ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 274 (1957). Downs formalized an old puzzle. Learned Hand formulated the problem in his essay Democracy: Its Presumptions and Realities: "My vote is one of the most unimportant acts of my life; if I were to acquaint myself with the matters on which it ought really to depend, if I were to try to get a judgment on which I was willing to risk affairs of even the smallest moment, I should be doing nothing else, and that seems a fatuous conclusion to a fatuous undertaking."
44. Learned Hand, Democracy: Its Presumptions and Realities (1932),
45. reprinted in THE SPIRIT OF LIBERTY 90, 93 (Irving Dillard ed., 3d ed. 1963).
46. See also DONALD P. GREEN & IAN SHAPIRO, PATHOLOGIES OF RATIONAL CHOICE THEORY: A CRITIQUE OF APPLICATIONS IN POLITICAL SCIENCE 47-71 (1994) (reviewing the literature on the paradox of voter turnout).
47. See Purcell v. Gonzalez, 127 S. Ct. 5, 7 (2006) (per curiam).
48. The 2006 CCES surveyed respondents before the general election and within a week after the election. The post-election battery asked: Were you asked to show picture identification, such as a driver's license, at the polling place this November? Yes/No. If Yes, were you then allowed to vote? Yes/No.
49. Ansolabehere, supra note 6 (manuscript at 7, on file with the Harvard Law School Library).
50. See Electionline.org, Voter ID Laws, Jan. 23, 2008, http://www.pewcenteronthestates.org/uploadedFiles/voter%20id%20laws.pdf. Only Florida, Georgia, and Indiana require all voters to show photo identification prior to casting a regular ballot. Id.
51. Of course, it is also possible that voter ID is most often required in areas where a greater fear of fraud precipitated the passage of a voter ID law. If so, then ID requirements might be a symptom of voters' fears of fraud, rather than a remedy. Another possibility is that voter ID laws lead people to worry that more fraud is present to be policed. Just as a large police presence in a neighborhood might heighten residents' fears of crime, so too might stringent voter ID laws cause voters to worry that fraud has made such requirements necessary. But, even if one of these theories were true, it would still contradict the notion that voter ID laws mitigate fears of election fraud. It may also be true that respondents answer the vote fraud question with respect to the nation as a whole, and not their state in particular.
52. Alvarez et al., supra note 3, at 7-9, divide states according to the following categories: 1. Voter must state his/her name. 2. Voter must sign his/her name in a poll-book. 3. Voter must sign his/her name in a poll-book and it must match a signature on file. 4. Voter is requested to present proof of identification or voter registration card. 5. Voter must present proof of identification or voter registration card. 6. Voter must present proof of identification and his/her signature must match the signature on the identification provided. 7. Voter is requested to present photo identification. 8. Voter is required to present photo identification. Id. (footnotes omitted).
53. This figure comes from the 2008 survey. In the 2007 survey, which identifies the activity as fraud, 26% thought that voting by those not eligible or voting multiple times occurs very often.
54. According to Professors Alvarez, Bailey, and Katz, the most stringent in 2006 were Florida, Louisiana, Hawaii, and Indiana. The least stringent were Maine, New Hampshire, North Carolina, Rhode Island, Utah, Vermont, and Wyoming. See Alvarez et al., supra note 3, at 8 & n.8, 9 fig.1. The analysis presented here was also performed using the categorization of voter ID requirements by the National Conference of State Legislatures and the results were the same. See Nat'l Conference of State Legislatures, State Requirements for Voter ID, Jan. 9, 2008, http://www.ncsl.org/programs/legismgt/ elect/taskfc/voteridreq.htm.
55. See generally Nathaniel Persily, Introduction to PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 3, 4-7 (Nathaniel Persily et al. eds., 2008) (discussing the use of public opinion in constitutional cases).
56. See, e.g., Clifford Krauss, Insurgent in Peru Calls for Election Boycott, N.Y. TIMES, May 20, 2000, at A6;
57. Marc Lacey, Congo, with Iraq in Mind, Faces Voting and Threats, N.Y. TIMES, Mar. 26, 2006, § 1, at 10;
58. Lydia Polgreen, Opposition in Senegal Boycotts Vote, N.Y. TIMES, June 4, 2007, at A7.
59. 531 U.S. 98 (2000).
60. The findings of this Essay are consistent with those of a separate analysis of the effect of perceived fairness of the resolution of the 2000 election controversy on subsequent voter turnout. In analysis of the relevant American National Election Studies (ANES) data (not presented here), we found no relationship between a respondent's perception of the fairness of the resolution of the 2000 election and the likelihood of that person turning out to vote in 2002 or in 2004. The ANES conducted a panel study in which they interviewed the same respondents in 2000, 2002, and 2004. In each year they asked respondents whether they thought the 2000 election had been decided fairly (questions P023114X and P045056) and whether they voted (P025020 and P045045x). The correlation between belief in the fairness of the 2000 election and voting was -.03 in 2002 and -.02 in 2004. See Ctr. for Political Studies, Univ. of Mich., National Election Study 2000-2002-2004 Full Panel File, http://www.electionstudies.org/studypages/2000to2004merged/2000to2004merged.htm (last visited Apr. 5, 2008) (presenting data from which the authors compiled the correlations presented here).
61. We should note that one state court has made this specific argument. The Supreme Court of Missouri, considering the Missouri photo ID law in Weinschenk v. State, 203 S.W.3d 201 (Mo. 2006), explained: Appellants also urge that the State has a compelling interest in combating perceptions of voter fraud. While the State does have an interest in combating those perceptions, where the fundamental rights of Missouri citizens are at stake, more than mere perception is required for their abridgement. Perceptions are malleable. While it is agreed here that the State's concern about the perception of fraud is real, if this Court were to approve the placement of severe restrictions on Missourians' fundamental rights owing to the mere perception of a problem in this instance, then the tactic of shaping public misperception could be used in the future as a mechanism for further burdening the right to vote or other fundamental rights. . . . The protection of our most precious state constitutional rights must not founder in the tumultuous tides of public misperception. Id. at 218-19 (footnote omitted).
62. See generally ROSENSTONE & HANSEN, supra note 31.
63. See Alvarez et al., supra note 3.