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83 N.Y.U. L. Rev. 847 (2008)
Appearance Matters: Why the State Has an Interest in Preventing the Appearance of Voting Fraud

handle is hein.journals/nylr83 and id is 859 raw text is: NOTES APPEARANCE MATTERS: WHY THE STATE HAS AN INTEREST IN PREVENTING THE APPEARANCE OF VOTING FRAUD ANDREW N. DELANEY* This Note seeks to show that the state has an interest not only in preventing voting fraud, but also in preventing the appearance of voting fraud. Drawing an analogy to campaign finance law, this Note argues that if the state has an interest in preventing the appearance of corruption in election financing, then courts should also recognize such an interest in preventing the appearance of voting fraud in elec- tions. The state has this interest in elections for the same reason it does in campaign finance law: Voters who perceive fraud may lose faith in the democratic process and consequently drop out of that process. Borrowing from the standard of proof courts have used in the campaign finance context, this Note analyzes popular opinion, media reports, and legislators' statements to determine that the appearance of voting fraud exists-and thus concludes that the state should be permitted to act on its interest in combating that appearance. Photo identification requirements have attracted particular controversy as a method of combating voting fraud. This Note analyzes photo identification requirements as an example of antifraud laws which might not be constitutional if the state's only interest were in preventing the actual fraud, but might be constitutionally permissible if the appearance-of-corrup- tion interest is considered. INTRODUCTION** Americans lack confidence in their own electoral process.1 Whether this lack of confidence is well founded or erroneously based * Copyright © 2008 by Andrew N. DeLaney. J.D., 2008, New York University School of Law; B.A., 2004, University of Pennsylvania. I would like to thank Thomas Clarke, Peter Devlin, Jennifer Hainsfurther, Kristen Lisk, Mathew Miller, Sam Nitze, Richard Pildes, Dimitri Portnoi, Cheryl Testa, and Dan Wachtell, as well as all the staff and editors of the New York University Law Review for their always-tireless and often-gratuitous help with this piece. For immeasurable support and encouragement, thanks to Mom, Dad, Bill, and Alanna. ** Editors' Note: This Note went to print prior to the Supreme Court's April 28, 2008 decision in Crawford v. Marion County Election Board, which upheld Indiana's photo identification law. The Court's decision, discussed infra in the Postscript, suggests greater recognition of the state's interest in preventing the appearance of voting fraud and sets the stage for further litigation in which this Note's analysis will prove important. 1 JOHN FUND, STEALING ELECTIONS: How VOTER FRAUD THREATENS OUR DEMOC- RACY 11 (2004) (citing June 2004 Zogby poll finding that 17% of likely voters were not sure or did not believe that their votes would be counted accurately and Rasmussen Poll. 847 Reprinted With The Permission of New York University School of Law

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