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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